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Home My WebLink About2005-06-28; City Council; 18187 v5 14-32; Exhibits to Staff Report Regulating Adult Businesses and Performers14 Pagel 122 S.Ct. 1728 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 2 Cal. Daily Op. Serv. 4067,2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) Supreme Court of the United States CITY OF LOS ANGELES, Petitioner, v. ALAMEDA BOOKS, INC., et al. No. 00-799. Argued Dec. 4, 2001. Decided May 13, 2002. Adult businesses brought § 1983 action, challenging city ordinance prohibiting operation of multiple adult businesses in single building. The United States District Court for the Central District of California, Dean D. Pregerson, J., granted summary judgment for businesses. City appealed. The Ninth Circuit Court of Appeals, Michael Daly Hawkins, Circuit Judge, 222 F.3d 719, affirmed. Certiorari was granted. The Supreme Court, Justice O'Connor, held that city could reasonably rely on police department study correlating crime patterns with concentrations of adult businesses when opposing businesses' First Amendment challenge. Reversed and remanded. Justice Scalia concurred and filed opinion. Justice Kennedy concurred in judgment and filed opinion. West Headnotes [1] Constitutional Law 92k90(3) Most Cited Cases Reducing crime is a substantial government interest, for purpose of justifying time, place and manner regulation of speech. U.S.C.A. ConstAmend. 1. [2] Constitutional Law €=^90.4(3) 92k90.4(3) Most Cited Cases [2] Theaters and Shows C^^S 376k3 Most Cited Cases City could reasonably rely on police department study correlating crime patterns with concentrations of adult businesses when opposing First Amendment challenge to ordinance barring more than one adult entertainment business in same building, even though study had focused on single-use establishments; study fairly supported city's rationale for ordinance. (Per Justice O'Connor, with the Chief Justice and two Justices concurring and one Justice concurring in judgment). U.S.C.A. Const.Amend. 1. **1728 *425 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. Based on its 1977 study concluding that concentrations of adult entertainment establishments are associated with higher crime rates in surrounding communities, petitioner city enacted an ordinance prohibiting such enterprises within 1,000 feet of each other or within 500 feet of a religious institution, school, or public park. Los Angeles Municipal Code § 12.70(C) (1978). Because the ordinance's method of calculating distances created a loophole permitting the concentration of multiple adult enterprises in a single structure, the **1729 city later amended the ordinance to prohibit "more than one adult entertainment business in the same building." § 12.70(C) (1983). Respondents, two adult establishments that openly operate combined bookstores/video arcades in violation of § 12.70(C), as amended, sued under 42 U.S.C. § 1983 for declaratory and injunctive relief, alleging that the ordinance, on its face, violates the First Amendment. Finding that the ordinance was not a content-neutral regulation of speech, the District Court reasoned that neither the 1977 study nor a report cited in Hart Book Stores v. Edmisten, a Fourth Circuit case upholding a similar statute, supported a reasonable belief that multiple-use adult establishments produce the secondary effects the city asserted as content-neutral justifications for its prohibition. Subjecting § 12.70(C) to strict scrutiny, the court granted respondents summary judgment because it felt the city had not offered evidence demonstrating that its prohibition was necessary to serve a compelling government interest. The Ninth Circuit affirmed on the different ground that, even if the Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 2 ordinance were content neutral, the city failed to present evidence upon which it could reasonably rely to demonstrate that its regulation of multiple-use establishments was designed to serve its substantial interest in reducing crime. The court therefore held the ordinance invalid under Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29. Held: The judgment is reversed, and the case is remanded. 222 F.3d 719, reversed and remanded. Justice O'CONNOR, joined by THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS, concluded that Los Angeles may reasonably rely *426 on its 1977 study to demonstrate that its present ban on multiple-use adult establishments serves its interest in reducing crime. Pp. 1733-1738. (a) The 1977 study's central component is a Los Angeles Police Department report indicating that, from 1965 to 1975, crime rates for, e.g., robbery and prostitution grew much faster in Hollywood, which had the city's largest concentration of adult establishments, than in the city as a whole. The city may reasonably rely on the police department's conclusions regarding crime patterns to overcome summary judgment. In finding to the contrary on the ground that the 1977 study focused on the effect on crime rates of a concentration of establishments—not a concentration of operations within a single establishment—the Ninth Circuit misunderstood the study's implications. While the study reveals that areas with high concentrations of adult establishments are associated with high crime rates, such areas are also areas with high concentrations of adult operations, albeit each in separate establishments. It was therefore consistent with the 1977 study's findings, and thus reasonable, for the city to infer that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates. Neither the Ninth Circuit nor respondents nor the dissent provides any reason to question the city's theory. If this Court were to accept their view, it would effectively require that the city provide evidence that not only supports the claim that its ordinance serves an important government interest, but also does not provide support for any other approach to serve that interest. Renton specifically refused to set such a high bar for municipalities that want to address merely the secondary effects of protected speech. The Court there 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. 475 U.S., at 51-52, 106 S.Ct, 925. This is not to say that a municipality can get away with shoddy data or reasoning. The municipality s evidence must fairly support its rationale for its ordinance. If plaintiffs **1730 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 Renton standard. 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 its ordinance. See, e.g., Erie v. Pap's A.M., 529 U.S. 277, 298, 120 S.Ct. 1382, 146 L.Ed.2d 265. This case is at a very early stage in this process. It arrives on a summary judgment motion by respondents defended only by complaints that the 1977 study fails to prove that the city's justification for its ordinance is necessarily *427 correct. Therefore, it must be concluded that the city, at this stage of the litigation, has complied with Renton's evidentiary requirement. Pp. 1733-1738. (b) The Court need not resolve the parties' dispute over whether the city can rely on evidence from Hart Book Stores to overcome summary judgment, nor respondents' alternative argument that the ordinance is not a time, place, and manner regulation, but is effectively a ban on adult video arcades that must be subjected to strict scrutiny. Pp. 1738. Justice KENNEDY concluded that this Court's precedents may allow Los Angeles to impose its regulation in the exercise of the zoning authority, and that the city is not, at least, to be foreclosed by summary judgment. Pp. 1739-1744. (a) Under Renton v. Playtime Theatres, Inc., 475 U.S. 41,106 S.Ct. 925,89 L.Ed.2d 29, if a city can decrease the crime and blight associated with adult businesses by exercising its zoning power, and at the same time leave the quantity and accessibility of speech substantially undiminished, there is no First Amendment objection, even if the measure identifies the problem outside the establishments by reference to the speech inside-that is, even if the measure is content based. On the other hand, a city may not regulate the secondary effects of speech by suppressing the speech itself. For example, it may not impose a content-based fee or tax, see Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 95 L.Ed.2d 209, even if the government purports to justify the fee by reference to secondary effects, see Forsyth County v. Nationalist Movement, 505 U.S. 123,134-135,112 S.Ct. 2395,120 L.Ed.2d 101. That the ordinance at issue is more a Copr. © West 2003 No Claim to Orig. U.S. Govt. Works PageS typical land-use restriction than a law suppressing speech is suggested by the fact that it is not limited to expressive activities, but extends, e.g., to massage parlors, which the city has found to cause the same undesirable secondary effects; also, it is just one part of an elaborate web of land-use regulations intended to promote the social value of the land as a whole without suppressing some activities or favoring others. Thus, the ordinance is not so suspect that it must be subjected to the strict scrutiny that content-based laws demand in other instances. Rather, it calls for intermediate scrutiny, as Renton held. Pp. 1739-1741. (b) Renton's description of an ordinance similar to Los Angeles' as "content neutral," 475 U.S., at 48, 106 S.Ct. 925, was something of a fiction. These ordinances are content based, and should be so described. Nevertheless, Renton's central holding is sound. Pp. 1741. (c) The necessary rationale for applying intermediate scrutiny is the promise that zoning ordinances like the one at issue may reduce the costs of secondary effects without substantially reducing speech. If two adult businesses are under the same roof, an ordinance requiring *428 them to separate will have one of two results: One business will either move elsewhere or close. The city's premise cannot be the latter. The premise must be that businesses— even those that have always been under one roof-will for the most part disperse rather than shut down, that the quantity of speech will be substantially **1731 undiminished, and that total secondary effects will be significantly reduced. As to whether there is sufficient evidence to support this proposition, the Court has consistently held that a city must have latitude to experiment, at least at the outset, and that very little evidence is required. See, e.g., Renton, supra, at 51-52, 106 S.Ct. 925. Here, the proposition to be shown is supported by common experience and a study showing a correlation between the concentration of adult establishments and crime. Assuming that the study supports the city's original dispersal ordinance, most of the necessary analysis follows. To justify the ordinance at issue, the city may infer—from its study and from its own experience—that two adult businesses under the same roof are no better than two next door, and that knocking down the wall between the two would not ameliorate any undesirable secondary effects of their proximity to one another. If the city's first ordinance was justified, therefore, then the second is too. Pp. 1741-1743. (d) Because these considerations seem well enough established in common experience and the Court's case law, the ordinance survives summary judgment. Pp. 1743-1744. O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and SCALIA and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion,post, p. 1738. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 1739. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined, and in which BREYER, J., joined as to Part II,post, p. 1744. Michael L. Klekner, Los Angeles, CA, for petitioner. John H. Weston, Los Angeles, CA, for respondents. *429 Justice O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join. Los Angeles Municipal Code § 12.70(C) (1983), as amended, prohibits "the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof." Respondents, two adult establishments that each operated an adult bookstore and an adult video arcade in the same building, filed a suit under Rev. Stat. § 1979, 42 U.S.C. § 1983 (1994 ed., Supp. V), alleging that § 12.70(C) violates the First Amendment and seeking declaratory and injunctive relief. The District Court granted summary judgment to respondents, finding that the city of Los Angeles' prohibition was a content-based regulation of speech that failed strict scrutiny. The Court of Appeals for the Ninth Circuit affirmed, but on different grounds. It held that, even if § 12.70(C) were a content-neutral regulation, the city failed to demonstrate that the *430 prohibition was designed to serve a substantial government interest. Specifically, the Court of Appeals found that the city failed to present evidence upon which it could reasonably rely to demonstrate a link between multiple-use adult establishments and negative secondary effects. Therefore, the Court of Appeals held the Los Angeles prohibition on such establishments invalid under Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and its precedents interpreting that case. 222 F.3d 719, 723-728 (2000). We reverse and remand. The city of Los Angeles may reasonably rely on a study it conducted some years before enacting the present version of § 12.70(C) to demonstrate that its ban on multiple-use adult establishments serves its interest in reducing crime. **1732 I Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 4 In 1977, the city of Los Angeles conducted a comprehensive study of adult establishments and concluded that concentrations of adult businesses are associated with higher rates of prostitution, robbery, assaults, and thefts in surrounding communities. See App. 35-162 (Los Angeles Dept. of City Planning, Study of the Effects of the Concentration of Adult Entertainment Establishments in the City of Los Angeles (City Plan Case No. 26475, City Council File No. 74-4521-S.3, June 1977)). Accordingly, the city enacted an ordinance prohibiting the establishment, substantial enlargement, or transfer of ownership of an adult arcade, bookstore, cabaret, motel, theater, or massage parlor or a place for sexual encounters within 1,000 feet of another such enterprise or within 500 feet of any religious institution, school, or public park. See Los Angeles Municipal Code § 12.70(C) (1978). There is evidence that the intent of the city council when enacting this prohibition was not only to disperse distinct adult establishments housed in separate buildings, but also to disperse distinct adult businesses operated under common ownership and housed in a single structure. See App. 29 *431 (Los Angeles Dept. of City Planning, Amendment-Proposed Ordinance to Prohibit the Establishment of More than One Adult Entertainment Business at a Single Location (City Plan Case No. 26475, City Council File No. 82-0155, Jan. 13, 1983)). The ordinance the city enacted, however, directed that " [t]he distance between any two adult entertainment businesses shall be measured in a straight line ... from the closest exterior structural wall of each business." Los Angeles Municipal Code § 12.70(D) (1978). Subsequent to enactment, the city realized that this method of calculating distances created a loophole permitting the concentration of multiple adult enterprises in a single structure. Concerned that allowing an adult-oriented department store to replace a strip of adult establishments could defeat the goal of the original ordinance, the city council amended § 12.70(C) by adding a prohibition on "the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof." Los Angeles Municipal Code § 12.70(C) (1983). The amended ordinance defines an "Adult Entertainment Business" as an adult arcade, bookstore, cabaret, motel, theater, or massage parlor or a place for sexual encounters, and notes that each of these enterprises "shall constitute a separate adult entertainment business even if operated in conjunction with another adult entertainment business at the same establishment." § 12.70(B)(17). The ordinance uses the term "business" to refer to certain types of goods or services sold in adult establishments, rather than the establishment itself. Relevant for purposes of this case are also the ordinance's definitions of adult bookstores and arcades. An "Adult Bookstore" is an operation that "has as a substantial portion of its stock-in- trade and offers for sale" printed matter and videocassettes that emphasize the depiction of specified sexual activities. § 12.70(B)(2)(a). An adult arcade is an operation where, "for any form of consideration," five or fewer patrons together may view films or videocassettes *432 that emphasize the depiction of specified sexual activities. § 12.70(B)(1). Respondents, Alameda Books, Inc., and Highland Books, Inc., are two adult establishments operating in Los Angeles. Neither is located within 1,000 feet of another adult establishment or 500 feet of any religious institution, public park, or school. Each establishment occupies less than 3,000 square feet. Both respondents rent and sell sexually oriented products, including videocassettes. Additionally, both provide booths where patrons can view videocassettes for a fee. Although respondents are located in different buildings, each operates its retail sales and rental operations in the same commercial space in which its video booths are located. There are no **1733 physical distinctions between the different operations within each establishment and each establishment has only one entrance. 222F.3d, at721. Respondents concede they are openly operating in violation of § 12.70(C) of the city's code, as amended. Brief for Respondents 7; Brief for Petitioner 9. After a city building inspector found in 1995 that Alameda Books, Inc., was operating both as an adult bookstore and an adult arcade in violation of the city's adult zoning regulations, respondents joined as plaintiffs and sued under 42 U.S.C. § 1983 for declaratory and injunctive relief to prevent enforcement of the ordinance. 222 F.3d, at 721. At issue in this case is count I of the complaint, which alleges a facial violation of the First Amendment. Both the city and respondents filed cross-motions for summaryjudgment. The District Court for the Central District of California initially denied both motions on the First Amendment issues in count I, concluding that there was "a genuine issue of fact whether the operation of a combination video rental and video viewing business leads to the harmful secondary effects associated with a concentration of separate businesses in a single urban area." App. 255. After respondents filed a motion for reconsideration, however, the District *433 Court found that Los Angeles' prohibition on multiple-use adult establishments was not a content-neutral regulation of speech. App. to Pet. for Cert. 51. It reasoned that neither the city's 1977 study nor a report cited in Hart Book Stores v. Edmisten, 612 F.2d 821 (C.A.4 1979) Copr. © West 2003 No Claim to Orig. U.S. Govt. Works PageS (upholding a North Carolina statute that also banned multiple-use adult establishments), supported a reasonable belief that multiple-use adult establishments produced the secondary effects the city asserted as content- neutral justifications for its prohibition. App. to Pet. for Cert. 34-47. Therefore, the District Court proceeded to subject the Los Angeles ordinance to strict scrutiny. Because it felt that the city did not offer evidence to demonstrate that its prohibition is necessary to serve a compelling government interest, the District Court granted summary judgment for respondents and issued a permanent injunction enjoining the enforcement of the ordinance against respondents. Id., at 51. The Court of Appeals for the Ninth Circuit affirmed, although on different grounds. The Court of Appeals determined that it did not have to reach the District Court's decision that the Los Angeles ordinance was content based because, even if the ordinance were content neutral, the city failed to present evidence upon which it could reasonably rely to demonstrate that its regulation of multiple-use establishments is "designed to serve" the city's substantial interest in reducing crime. The challenged ordinance was therefore invalid under Renton, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29. 222 F.3d, at 723-724. We granted certiorari, 532 U.S. 902,121 S.Ct. 1223, 149 L.Ed.2d 134 (2001), to clarify the standard for determining whether an ordinance serves a substantial government interest under Renton, supra. II In Renton v. Playtime Theatres, Inc., supra, this Court considered the validity of a municipal ordinance that prohibited any adult movie theater from locating within 1,000 feet of any residential zone, family dwelling, church, park, *434 or school. Our analysis of the ordinance proceeded in three steps. First, we found that the ordinance did not ban adult theaters altogether, but merely required that they be distanced from certain sensitive locations. The ordinance was properly analyzed, therefore, as a time, place, and manner regulation. Id., at 46, 106 S.Ct. 925. We next considered whether the ordinance was content neutral or content based. If the regulation were content based, it would be considered presumptively invalid and subject to strict scrutiny. Simon & Schuster, Inc. v. Members ofN. Y. State **1734 Crime Victims Bd., 502 U.S. 105, 115, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230- 231, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). We held, however, that the Renton ordinance was aimed not at the content of the films shown at adult theaters, but rather at the secondary effects of such theaters on the surrounding community, namely, at crime rates, property values, and the quality of the city's neighborhoods. Therefore, the ordinance was deemed content neutral. Renton, supra, at 47-49, 106 S.Ct. 925. Finally, given this finding, we stated that the ordinance would be upheld so long as the city of Renton showed that its ordinance was designed to serve a substantial government interest and that reasonable alternative avenues of communication remained available. 475 U.S., at 50, 106 S.Ct. 925. We concluded that Renton had met this burden, and we upheld its ordinance. Id., at 51-54, 106 S.Ct. 925. The Court of Appeals applied the same analysis to evaluate the Los Angeles ordinance challenged in this case. First, the Court of Appeals found that the Los Angeles ordinance was not a complete ban on adult entertainment establishments, but rather a sort of adult zoning regulation, which Renton considered a tune, place, and manner regulation. 222 F.3d, at 723. The Court of Appeals turned to the second step of the Renton analysis, but did not draw any conclusions about whether the Los Angeles ordinance was content based. It explained that, even if the Los Angeles ordinance were content neutral, the city had failed to demonstrate, *435 as required by the third step of the Renton analysis, that its prohibition on multiple-use adult establishments was designed to serve its substantial interest hi reducing crime. The Court of Appeals noted that the primary evidence relied upon by Los Angeles to demonstrate a link between combination adult businesses and harmful secondary effects was the 1977 study conducted by the city's planning department. The Court of Appeals found, however, that the city could not rely on that study because it did not " 'suppor[t] a reasonable belief that [the] combination [of] businesses... produced harmful secondary effects of the type asserted.'" 222F.3d, at 724. For similar reasons, the Court of Appeals also rejected the city's attempt to rely on a report on health conditions inside adult video arcades described in Hart Book Stores, supra, a case that upheld a North Carolina statute similar to the Los Angeles ordinance challenged in this case. The central component of the 1977 study is a report on city crime patterns provided by the Los Angeles Police Department. That report indicated that, during the period from 1965 to 1975, certain crime rates grew much faster in Hollywood, which had the largest concentration of adult establishments in the city, than in the city of Los Angeles as a whole. For example, robberies increased 3 times faster and prostitution 15 times faster in Hollywood than citywide. App. 124-125. [1] The 1977 study also contains reports conducted Copr. © West 2003 No Claim to Orig. U.S. Govt. Works directly by the staff of the Los Angeles Planning Department that examine the relationship between adult establishments and property values. These staff reports, however, are inconclusive. Not surprisingly, the parties focus their dispute before this Court on the report by the Los Angeles Police Department. Because we find that reducing crime is a substantial government interest and that the police department report's conclusions regarding crime patterns may reasonably be relied upon to overcome summary judgment against *436 the city, we also focus on the portion of the 1977 study drawn from the police department report. The Court of Appeals found that the 1977 study did not reasonably support the inference that a concentration of adult operations within a single adult establishment produced greater levels of criminal activity because the study focused on the **1735 effect that a concentration of establishments—not a concentration of operations within a single establishment—had on crime rates. The Court of Appeals pointed out that the study treated combination adult bookstore/arcades as single establishments and did not study the effect of any separate-standing adult bookstore or arcade. 222 F.3d, at 724. [2] The Court of Appeals misunderstood the implications of the 1977 study. While the study reveals that areas with high concentrations of adult establishments are associated with high crime rates, areas with high concentrations of adult establishments are also areas with high concentrations of adult operations, albeit each in separate establishments. It was therefore consistent with the findings of the 1977 study, and thus reasonable, for Los Angeles to suppose that a concentration of adult establishments is correlated with high crime rates because a concentration of operations in one locale draws, for example, a greater concentration of adult consumers to the neighborhood, and a high density of such consumers either attracts or generates criminal activity. The assumption behind this theory is that having a number of adult operations in one single adult establishment draws the same dense foot traffic as having a number of distinct adult establishments in close proximity, much as minimalls and department stores similarly attract the crowds of consumers. Brief for Petitioner 28. Under this view, it is rational for the city to infer that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates. *437 Neither the Court of Appeals, nor respondents, nor the dissent provides any reason to question the city's theory. In particular, they do not offer a competing theory, let alone data, that explains why the elevated Page 6 crime rates in neighborhoods with a concentration of adult establishments can be attributed entirely to the presence of permanent walls between, and separate entrances to, each individual adult operation. While the city certainly bears the burden of providing evidence that supports a link between concentrations of adult operations and asserted secondary effects, it does not bear the burden of providing evidence that rules out every theory for the link between concentrations of adult establishments that is inconsistent with its own. The error that the Court of Appeals made is that it required the city to prove that its theory about a concentration of adult operations attracting crowds of customers, much like a minimall or department store does, is a necessary consequence of the 1977 study. For example, the Court of Appeals refused to allow the city to draw the inference that "the expansion of an adult bookstore to include an adult arcade would increase" business activity and "produce the harmful secondary effects identified in the Study." 222 F.3d, at 726. It reasoned that such an inference would justify limits on the inventory of an adult bookstore, not a ban on the combination of an adult bookstore and an adult arcade. The Court of Appeals simply replaced the city's theory—that having many different operations in close proximity attracts crowds-with its own-that the size of an operation attracts crowds. If the Court of Appeals' theory is correct, then inventory limits make more sense. If the city's theory is correct, then a prohibition on the combination of businesses makes more sense. Both theories are consistent with the data in the 1977 study. The Court of Appeals' analysis, however, implicitly requires the city to prove that its theory is the only one that can plausibly explain the data *438 because only in this manner can the city refute the Court of Appeals' logic. Respondents make the same logical error as the Court of Appeals when they suggest that the city's prohibition on multiuse establishments will raise crime rates in certain neighborhoods because it will **1736 force certain adult businesses to relocate to areas without any other adult businesses. Respondents' claim assumes that the 1977 study proves that all adult businesses, whether or not they are located near other adult businesses, generate crime. This is a plausible reading of the results from the 1977 study, but respondents do not demonstrate that it is a compelled reading. Nor do they provide evidence that refutes the city's interpretation of the study, under which the city's prohibition should on balance reduce crime. If this Court were nevertheless to accept respondents' speculation, it would effectively require that the city provide evidence that not only supports the claim that its ordinance serves an important government interest, but also does not Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page? provide support for any other approach to serve that interest. 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. 475 U.S., at 51- 52, 106 S.Ct. 925; see also, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 584, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (SOUTER, J., concurring in judgment) (permitting municipality to use evidence that adult theaters are correlated with harmful secondary effects to support its claim that nude dancing is likely to produce the same effects). 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 *439 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 hi either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance. See, e.g., Erie v. Pap's A.M., 529 U.S. 277, 298, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion). This case is at a very early stage in this process. It arrives on a summary judgment motion by respondents defended only by complaints that the 1977 study fails to prove that the city's justification for its ordinance is necessarily correct. Therefore, we conclude that the city, at this stage of the litigation, has complied with the evidentiary requirement hi Renton. Justice SOUTER faults the city for relying on the 1977 study not because the study fails to support the city's theory that adult department stores, like adult minimalls, attract customers and thus crime, but because the city does not demonstrate that freestanding single-use adult establishments reduce crime. See post, at 1747-1748 (dissenting opinion). In effect, Justice SOUTER asks the city to demonstrate, not merely by appeal to common sense, but also with empirical data, that its ordinance will successfully lower crime. Our cases have never required that municipalities make such a showing, certainly not without actual and convincing evidence from plaintiffs to the contrary. See, e.g., Barnes, supra, at 583-584, 111 S.Ct. 2456 (SOUTER, J., concurring in judgment). Such a requirement would go too far hi undermining our settled position that municipalities must be given a" 'reasonable opportunity to experiment with solutions'" to address the secondary effects of protected speech. Renton, supra, at 52, 106 S.Ct. 925 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opinion)). A municipality considering an innovative solution may not have data that could demonstrate the efficacy of its proposal because *440 the solution would, by definition, not have been implemented previously. The city's ordinance banning multiple-**1737 use adult establishments is such a solution. Respondents contend that there are no adult video arcades hi Los Angeles County that operate independently of adult bookstores. See Brief for Respondents 41. But without such arcades, the city does not have a treatment group to compare with the control group of multiple-use adult establishments, and without such a comparison Justice SOUTER would strike down the city's ordinance. This leaves the city with no means to address the secondary effects with which it is concerned. Our deference to the evidence presented by the city of Los Angeles is the product of a careful balance between competing interests. One the one hand, we have an "obligation to exercise independent judgment when First Amendment rights are implicated." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 666, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (plurality opinion); see also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843-844, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978). On the other hand, we must acknowledge that the Los Angeles City Council is hi a better position than the Judiciary to gather and evaluate data on local problems. See Turner, supra, at 665-666, 114 S.Ct. 2445; Erie, supra, at 297-298, 120 S.Ct. 1382 (plurality opinion). We are also guided by the fact that Renton requires that municipal ordinances receive only intermediate scrutiny if they are content neutral. 475 U.S., at 48-50, 106 S.Ct. 925. There is less reason to be concerned that municipalities will use these ordinances to discriminate against unpopular speech. See Erie, supra, at 298-299, 120 S.Ct. 1382. Justice SOUTER would have us rethink this balance, and indeed the entire Renton framework. In Renton, the Court distinguished the inquiry into whether a municipal ordinance is content neutral from the inquiry into whether it is "designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication." 475 U.S., at 47- 54, 106 S.Ct. 925. The former requires courts to verify that the "predominate concerns" motivating the *441 ordinance "were with the secondary effects of adult [speech], and not with the content of adult Copr. © West 2003 No Claim to Orig. U.S. Govt. Works PageS [speech]." Id., at47,106 S.Ct. 925 (emphasis deleted). 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. Id., at 50-52, 106 S.Ct. 925. Justice SOUTER would either merge these two inquiries or move the evidentiary analysis into the inquiry on content neutrality, and raise the evidentiary bar that a municipality must pass. His logic is that verifying that the ordinance actually reduces the secondary effects asserted would ensure that zoning regulations are not merely content-based regulations in disguise. See post, at 1746. We think this proposal unwise. First, none of the parties request the Court to depart from the Renton framework. Nor is the proposal fairly encompassed in the question presented, which focuses on the sorts of evidence upon which the city may rely to demonstrate that its ordinance is designed to serve a substantial governmental interest. Pet. for Cert. i. Second, there is no evidence suggesting that courts have difficulty determining whether municipal ordinances are motivated primarily by the content of adult speech or by its secondary effects without looking to evidence connecting such speech to the asserted secondary effects. In this case, the Court of Appeals has not yet had an opportunity to address the issue, having assumed for the sake of argument that the city's ordinance is content neutral. 222 F.3d, at 723. It would be inappropriate for this Court to reach the question of content neutrality before permitting the lower court to pass upon it. Finally, Justice SOUTER does **1738 not clarify the sort of evidence upon which municipalities may rely to meet the evidentiary burden he would require. It is easy to say that courts must demand evidence *442 when "common experience" or "common assumptions" are incorrect, see post, at 1741-1742, but it is difficult for courts to know ahead of time whether that condition is met. Municipalities will, in general, have greater experience with and understanding of the secondary effects that follow certain protected speech than will the courts. See Erie, 529 U.S., at 297-298, 120 S.Ct. 1382 (plurality opinion). For this reason our cases require only that municipalities rely upon evidence that is " 'reasonably believed to be relevant' " to the secondary effects that they seek to address. Id, at 296. Ill The city of Los Angeles argues that its prohibition on multiuse establishments draws further support from a study of the poor health conditions in adult video arcades described in Hart Book Stores, a case that upheld a North Carolina ordinance similar to that challenged here. See 612 F.2d, at 828-829, n. 9. Respondents argue that the city cannot rely on evidence from Hart Book Stores because the city cannot prove it examined that evidence before it enacted the current version of § 12.70(C). Brief for Respondents 21. Respondents note, moreover, that unsanitary conditions in adult video arcades would persist regardless of whether arcades were operated in the same buildings as, say, adult bookstores. Ibid We do not, however, need to resolve the parties' dispute over evidence cited in Hart Book Stores. Unlike the city of Renton, the city of Los Angeles conducted its own study of adult businesses. We have concluded that the Los Angeles study provides evidence to support the city's theory that a concentration of adult operations in one locale attracts crime, and can be reasonably relied upon to demonstrate that Los Angeles Municipal Code § 12.70(C) (1983) is designed to promote the city's interest in reducing crime. Therefore, the city need not present foreign studies to overcome the summary judgment against it. *443 Before concluding, it should be noted that respondents argue, as an alternative basis to sustain the Court of Appeals' judgment, that the Los Angeles ordinance is not a typical zoning regulation. Rather, respondents explain, the prohibition on multiuse adult establishments is effectively a ban on adult video arcades because no such business exists independently of an adult bookstore. Brief for Respondents 12-13. Respondents request that the Court hold that the Los Angeles ordinance is not a time, place, and manner regulation, and that the Court subject the ordinance to strict scrutiny. This also appears to be the theme of Justice KENNEDY'S concurrence. He contends that "[a] city may not assert that it will reduce secondary effects by reducing speech in the same proportion." Post, at 1742 (opinion concurring in judgment). We consider that unobjectionable proposition as 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. The Court of Appeals held, however, that the city's prohibition on the combination of adult bookstores and arcades is not a ban and respondents did not petition for review of that determination. Accordingly, we reverse the Court of Appeals' judgment granting summary judgment to respondents and remand the case for further proceedings. // is so ordered. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 9 Justice SCALIA, concurring. I join the plurality opinion because I think it represents a correct application of our jurisprudence concerning regulation of the "secondary effects" of pornographic speech. As I have said elsewhere, however, in a case such as this our First Amendment **1739 traditions make "secondary effects" analysis quite unnecessary. The Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pandering *444 sex. See, e.g., Eriev. Pap's AM, 529 U.S. 277, 310, 120 S.Ct. 1382,146L.Ed.2d265 (2000) (SCALIA, J., concurring in judgment); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 256-261, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (SCALIA, J., concurring in part and dissenting in part). Justice KENNEDY, concurring in the judgment. Speech can produce tangible consequences. It can change minds. It can prompt actions. These primary effects signify the power and the necessity of free speech. Speech can also cause secondary effects, however, unrelated to the impact of the speech on its audience. A newspaper factory may cause pollution, and a billboard may obstruct a view. These secondary consequences are not always immune from regulation by zoning laws even though they are produced by speech. Municipal governments know that high concentrations of adult businesses can damage the value and the integrity of a neighborhood. The damage is measurable; it is all too real. The law does not require a city to ignore these consequences if it uses its zoning power in a reasonable way to ameliorate them without suppressing speech. A city's "interest in attempting to preserve the quality of urban life is one that must be accorded high respect." Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opinion). The question in this case is whether Los Angeles can seek to reduce these tangible, adverse consequences by separating adult speech businesses from one another—even two businesses that have always been under the same roof. In my view our precedents may allow the city to impose its regulation in the exercise of the zoning authority. The city is not, at least, to be foreclosed by summary judgment, so I concur in the judgment. This separate statement seems to me necessary, however, for two reasons. First, Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), described a similar ordinance as "content neutral," and I agree with the dissent that the designation *445 is imprecise. Second, in my view, the plurality s application of Renton might constitute a subtle expansion, with which I do not concur. I In Renton, the Court determined that while the material inside adult bookstores and movie theaters is speech, the consequent sordidness outside is not. The challenge is to correct the latter while leaving the former, as far as possible, untouched. If a city can decrease the crime and blight associated with certain speech by the traditional exercise of its zoning power, and at the same time leave the quantity and accessibility of the speech substantially undiminished, there is no First Amendment objection. This is so even if the measure identifies the problem outside by reference to the speech inside—that is, even if the measure is in that sense content based. On the other hand, a city may not regulate the secondary effects of speech by suppressing the speech itself. A city may not, for example, impose a content- based fee or tax. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) ("[O]fficial scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment's guarantee of freedom of the press"). This is true even if the government purports to justify the fee by reference to secondary effects. See Forsyth County v. Nationalist Movement, 505 U.S. 123,134-135,112 S.Ct. 2395,120 L.Ed.2d 101 (1992). Though the inference may be inexorable that a city could reduce secondary effects by reducing speech, this is not a permissible **1740 strategy. The purpose and effect of a zoning ordinance must be to reduce secondary effects and not to reduce speech. A zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech. It is well documented that multiple adult businesses in close proximity may change the character of a neighborhood *446 for the worse. Those same businesses spread across the city may not have the same deleterious effects. At least in theory, a dispersal ordinance causes these businesses to separate rather than to close, so negative externalities are diminished but speech is not. The calculus is a familiar one to city planners, for many enterprises other than adult businesses also cause undesirable externalities. Factories, for example, may Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 10 cause pollution, so a city may seek to reduce the cost of that externality by restricting factories to areas far from residential neighborhoods. With careful urban planning a city in this way may reduce the costs of pollution for communities, while at the same time allowing the productive work of the factories to continue. The challenge is to protect the activity inside while controlling side effects outside. Such an ordinance might, like a speech restriction, be "content based." It might, for example, single out slaughterhouses for specific zoning treatment, restricting them to a particularly remote part of town. Without knowing more, however, one would hardly presume that because the ordinance is specific to that business, the city seeks to discriminate against it or help a favored group. One would presume, rather, that the ordinance targets not the business but its particular noxious side effects. But cf. Slanghter-House Cases, 16 Wall. 36,21 L.Ed. 394 (1872). The business might well be the city's most valued enterprise; nevertheless, because of the pollution it causes, it may warrant special zoning treatment. This sort of singling out is not impermissible content discrimination; it is sensible urban planning. Cf. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926) ("A nuisance may be merely a right thing in the wrong place,— like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control"). *447 True, the First Amendment protects speech and not slaughterhouses. But in both contexts, the inference of impermissible discrimination is not strong. An equally strong inference is that the ordinance is targeted not at the activity, but at its side effects. If a zoning ordinance is directed to the secondary effects of adult speech, the ordinance does not necessarily constitute impermissible content discrimination. A zoning law need not be blind to the secondary effects of adult speech, so long as the purpose of the law is not to suppress it. The ordinance at issue in this case is not limited to expressive activities. It also extends, for example, to massage parlors, which the city has found to cause similar secondary effects. See Los Angeles Municipal Code §§ 12.70(B)(8) (1978), 12.70(B)(17) (1983), 1270(C) (1986), as amended. This ordinance, moreover, is just one part of an elaborate web of land-use regulations in Los Angeles, all of which are intended to promote the social value of the land as a whole without suppressing some activities or favoring others. See § 12.02 ("The purpose of this article is to consolidate and coordinate all existing zoning regulations and provisions into one comprehensive zoning plan ... in order to encourage the most appropriate use of land ... and to promote the health, safety, and the general welfare ..."). All this further 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. **1741 For these reasons, the ordinance is not so suspect that we must employ the usual rigorous analysis that content-based laws demand in other instances. The ordinance maybe a covert attack on speech, but we should not presume it to be so. In the language of our First Amendment doctrine it calls for intermediate and not strict scrutiny, as we held in Renton. *448 II In Renton, the Court began by noting that a zoning ordinance is a time, place, or manner restriction. The Court then proceeded to consider the question whether the ordinance was "content based." The ordinance "by its terms [was] designed to prevent crime, protect the city's retail trade, maintain property values, and generally protec[t] and preservfe] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life, not to suppress the expression of unpopular views." 475 U.S., at 48, 106 S.Ct. 925 (internal quotation marks omitted). On this premise, the Court designated the restriction "content neutral." Ibid. The Court appeared to recognize, however, that the designation was something of a fiction, which, perhaps, is why it kept the phrase in quotes. After all, whether 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. And the ordinance in Renton "treat[ed] theaters that specialize in adult films differently from other kinds of theaters." Id., at 47, 106 S.Ct. 925. The fiction that this sort of ordinance is content neutral-or "content neutral"—is perhaps more confusing than helpful, as Justice SOUTER demonstrates, see post, at 1745 (dissenting opinion). It is also not a fiction that has commanded our consistent adherence. See Thomas v. ChicagoParkDist., 534 U.S. 316,322, and n. 2,122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (suggesting that a licensing scheme targeting only those businesses purveying sexually explicit speech is not content neutral). These ordinances are content based and we should call them so. Nevertheless, for the reasons discussed above, the central holding of Renton is sound: A zoning restriction that is designed to decrease secondary effects Copr. © West 2003 No Claim to Orig. U.S. Govt. Works and not speech should be subject to intermediate rather than strict scrutiny. Generally, the government has no power to restrict speech based on content, but there are exceptions to the rule. See *449Simon & Schuster. Inc. v. Members ofN.Y. State Crime VictimsBd, 502 U.S. 105, 126-127, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (KENNEDY, J., concurring in judgment). And zoning regulations do not automatically raise the specter of impermissible content discrimination, even if they are content based, because they have a prima facie legitimate purpose: to limit the negative externalities of land use. As a matter of common experience, these sorts of ordinances are more like a zoning restriction on slaughterhouses and less like a tax on unpopular newspapers. The zoning context provides a built-in legitimate rationale, which rebuts the usual presumption that content-based restrictions are unconstitutional. For this reason, we apply intermediate rather than strict scrutiny. Ill The narrow question presented in this case is whether the ordinance at issue is invalid "because the city did not study the negative effects of such combinations of adult businesses, but rather relied on judicially approved statutory precedent from other jurisdictions." Pet. for Cert. i. This question is actually 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? The plurality skips to the second question and gives the correct answer; but in my view more attention must be given to the first. **1742 At the outset, we must identify the claim a city must make in order to justify a content-based zoning ordinance. As discussed above, 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. On this point, I agree with Justice SOUTER. See post, at 1746. The rationale of *450 the ordinance must be that it will suppress secondary effects-and not by suppressing speech. The plurality's statement of the proposition to be supported is somewhat different. It suggests that Los Angeles could reason as follows: (1) "a concentration of operations in one locale draws ... a greater concentration of adult consumers to the neighborhood, Page 11 and a high density of such consumers either attracts or generates criminal activity"; (2) "having a number of adult operations in one single adult establishment draws the same dense foot traffic as having a number of distinct adult establishments in close proximity"; (3) "reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates." Ante, at 1735. These propositions all seem reasonable, and the inferences required to get from one to the next are sensible. Nevertheless, this syllogism fails to capture an important part of the inquiry. The plurality's analysis does not address how speech will fare under the city's ordinance. As discussed, the necessary rationale for applying intermediate scrutiny is the promise that zoning ordinances like this one may reduce the costs of secondary effects without substantially reducing speech. For this reason, it does not suffice to say that inconvenience will reduce demand and fewer patrons will lead to fewer secondary effects. This reasoning would as easily justify a content- based tax: Increased prices will reduce demand, and fewer customers will mean fewer secondary effects. But a content-based tax may not be justified in this manner. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987); Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395,120 L.Ed.2d 101 (1992). 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 *451 to separate will have one of two results: One business will either move elsewhere or 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. Content-based taxes could achieve that, yet these are impermissible. The premise, therefore, must be that businesses—even those that have always been under one roof—will for the most part disperse rather than shut down. True, this premise has its own conundrum. As Justice SOUTER writes, "[t]he city ... claims no interest in the proliferation of adult establishments." Post, at 1748. 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. This must be the rationale of a Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 12 dispersal statute. Only after identifying the proposition to be proved can we ask the second part of the question presented: is there sufficient evidence to support the proposition? As to this, we have consistently held that a city must have latitude to experiment, at **1743 least at the outset, and that very little evidence is required. See, e.g., Renton, 475 U.S., at 51-52, 106 S.Ct. 925 ("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"); Young, 427 U.S., at 71, 96 S.Ct. 2440 ("[T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems"); Eriev. Pap's A.M., 529 U.S. 277, 300-301, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion). As a general matter, courts should not be in the business of second-guessing fact-bound empirical assessments of city planners. See Renton, supra, at 51-52, 106 S.Ct. 925. The Los Angeles City Council *452 knows the streets of Los Angeles better than we do. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 665-666, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); Erie, supra, at 297-298, 120 S.Ct. 1382 (plurality opinion). It is entitled to rely on that knowledge; and if its inferences appear reasonable, we should not say there is no basis for its conclusion. In this case the proposition to be shown is supported by a single study and common experience. The city's study shows a correlation between the concentration of adult establishments and crime. Two or more adult businesses in close proximity seem to attract a critical mass of unsavory characters and the crime rate may increase as a result. The city, therefore, sought to disperse these businesses. Los Angeles Municipal Code § 12.70(C) (1983), as amended. This original ordinance is not challenged here, and we may assume that it is constitutional. If we assume that the study supports the original ordinance, then most of the necessary analysis follows. We may posit that two adult stores next door to each other attract 100 patrons per day. The two businesses split apart might attract 49 patrons each. (Two patrons, perhaps, will be discouraged by the inconvenience of the separation—a relatively small cost to speech.) On the other hand, the reduction in secondary effects might be dramatic, because secondary effects may require a critical mass. Depending on the economics of vice, 100 potential customers/victims might attract a coterie of thieves, prostitutes, and other ne'er-do-wells; yet 49 might attract none at all. If so, a dispersal ordinance would cause a great reduction in secondary effects at very small cost to speech. Indeed, the very absence of secondary effects might increase the audience for the speech; perhaps for every two people who are discouraged by the inconvenience of two-stop shopping, another two are encouraged by hospitable surroundings. In that case, secondary effects might be eliminated at no cost to *453 speech whatsoever, and both the city and the speaker will have their interests well served. Only one small step remains to justify the ordinance at issue in this case. The city may next infer-from its study and from its own experience-- that two adult businesses under the same roof are no better than two next door. The city could reach the reasonable conclusion that knocking down the wall between two adult businesses does not ameliorate any undesirable secondary effects of their proximity to one another. If the city's first ordinance was justified, therefore, then the second is too. Dispersing two adult businesses under one roof is reasonably likely to cause a substantial reduction in secondary effects while reducing speech very little. IV These propositions are well established in common experience and in zoning policies that we have already examined, and for these reasons this ordinance is not invalid on its face. If these assumptions **1744 can be proved unsound at trial, then the ordinance might not withstand intermediate scrutiny. The ordinance does, however, survive the summary judgment motion that the Court of Appeals ordered granted in this case. Justice SOUTER, with whom Justice STEVENS and Justice GINSBURG join, and with whom Justice BREYER joins as to Part II, dissenting. In 1977, the city of Los Angeles studied sections of the city with high and low concentrations of adult business establishments catering to the market for the erotic. The city found no certain correlation between the location of those establishments and depressed property values, but it did find some correlation between areas of higher concentrations of such business and higher crime rates. On that basis, Los Angeles followed the examples of other cities in adopting a zoning ordinance requiring dispersion of adult *454 establishments. I assume that the ordinance was constitutional when adopted, see, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 13 (1976), and assume for purposes of this case that the original ordinance remains valid today. [FN1] FN1. Although amicus First Amendment Lawyers Association argues that recent studies refute the findings of adult business correlations with secondary effects sufficient to justify such an ordinance, Brief for First Amendment Lawyers Association as Amicus Curiae 21-23, the issue is one I do not reach. The city subsequently amended its ordinance to forbid clusters of such businesses at one address, as in a mall. The city has, in turn, taken a third step to apply this amendment to prohibit even a single proprietor from doing business in a traditional way that combines an adult bookstore, selling books, magazines, and videos, with an adult arcade, consisting of open viewing booths, where potential purchasers of videos can view them for a fee. From a policy of dispersing adult establishments, the city has thus moved to a policy of dividing them in two. The justification claimed for this application of the new policy remains, however, the 1977 survey, as supplemented by the authority of one decided case on regulating adult arcades in another State. The case authority is not on point, see infra, at 1748, n. 4, and the 1977 survey provides no support for the breakup policy. Its evidentiary insufficiency bears emphasis and is the principal reason that I respectfully dissent from the Court's judgment today. I This ordinance stands or falls on the results of what our cases speak of as intermediate scrutiny, generally contrasted with the demanding standard applied under the First Amendment to a content-based regulation of expression. The variants of middle-tier tests cover a grabbag of restrictive statutes, with a corresponding variety of justifications. *455 While spoken of as content neutral, these regulations are not uniformly distinct from the content-based regulations calling for scrutiny that is strict, and zoning of businesses based on their sales of expressive adult material receives mid-level scrutiny, even though it raises a risk of content-based restriction. It is worth being clear, then, on how close to a content basis adult business zoning can get, and why the application of a middle-tier standard to zoning regulation of adult bookstores calls for particular care. Because content-based regulation applies to expression by very reason of what is said, it carries a high risk that expressive limits are imposed for the sake of suppressing a message that is disagreeable to listeners or readers, or the government. See Consolidated Edison Co. ofN.Y. v. PublicServ. Comm'n ofN. Y., 447 U.S. 530, 536, 100 S.Ct. 2326,65 L.Ed.2d 319 (1980) ("[W]hen regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure **1745 that communication has not been prohibited merely because public officials disapprove the speaker's views" (internal quotation marks omitted)). A restriction based on content survives only on a showing of necessity to serve a legitimate and compelling governmental interest, combined with least-restrictive narrow tailoring to serve it, see United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); since merely protecting listeners from offense at the message is not a legitimate interest of the government, see Cohen v. California, 403 U.S. 15,24-25, 91 S.Ct. 1780,29 L.Ed.2d 284 (1971), strict scrutiny leaves few survivors. The comparatively softer intermediate scrutiny is reserved for regulations justified by something other than content of the message, such as a straightforward restriction going only to the time, place, or manner of speech or other expression. It is easy to see why review of such a regulation may be relatively relaxed. No one has to disagree with any message to find something wrong with a loudspeaker at three in the morning, see *456Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448,93 L.Ed. 513 (1949); the sentiment may not provoke, but being blasted out of a sound sleep does. In such a case, we ask simply whether the regulation is "narrowly tailored to serve a significant governmental interest, and... leave[s] open ample alternative channels for communication of the information." Clark v. Community for Creative Non- Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). A middle- tier standard is also applied to limits on expression through action that is otherwise subject to regulation for nonexpressive purposes, the best known example being the prohibition on destroying draft cards as an act of protest, United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); here a regulation passes muster "if it furthers an important or substantial governmental interest ... unrelated to the suppression of free expression" by a restriction "no greater than is essential to the furtherance of that interest." Id, at 377, 88 S.Ct. 1673. As mentioned already, yet another middle-tier variety is zoning restriction as a means of responding to the "secondary effects" of adult businesses, principally crime and declining property values in the neighborhood. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 89 L,Ed.2d 29 (1986). [FN2] Copr. © West 2003 No Claim to Orig. U.S. Govt. Works •.„«*»' FN2. Limiting such effects qualifies as a substantial governmental interest, and an ordinance has been said to survive if it is shown to serve such ends without unreasonably limiting alternatives. Renton, 475 U.S., at 50, 106 S.Ct. 925. Because Renton called its secondary-effects ordinance a mere time, place, or manner restriction and thereby glossed over the role of content in secondary-effects zoning, see infra this page, I believe the soft focus of its statement of the middle-tier test should be rejected in favor of the United States v. O'Brien, 391 U.S. 367,88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), formulation quoted above. O'Brien is a closer relative of secondary-effects zoning than mere time, place, or manner regulations, as the Court has implicitly recognized. Erie v. Pap's A.M., 529 U.S. 277,289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Although this type of land-use restriction has even been called a variety of time, place, or manner regulation, id., at 46, 106 S.Ct. 925, equating a secondary-effects zoning regulation with a mere regulation of time, place, or manner jumps over an important difference between them. A restriction on loudspeakers has no obvious relationship to the substance of *457 what is broadcast, while a zoning regulation of businesses in adult expression just as obviously does. And while it may be true that an adult business is burdened only because of its secondary effects, it is clearly burdened only if its expressive products have adult content. Thus, the Court has recognized that this kind of regulation, though called content neutral, occupies a kind of limbo between full-blown, content-based restrictions and regulations that apply without any reference to the substance of what is said. Id., at 47, 106 S.Ct. 925. **1746 It would in fact make sense to give this kind of zoning regulation a First Amendment label of its own, and if we called it content correlated, we would not only describe it for what it is, but keep alert to a risk of content- based regulation that it poses. The risk lies in the fact that when a law applies selectively only to speech of particular content, the more precisely the content is identified, the greater is the opportunity for government censorship. Adult speech refers not merely to sexually explicit content, but to speech reflecting a favorable view of being explicit about sex and a favorable view of the practices it depicts; a restriction on adult content is thus also a restriction turning on a particular viewpoint, of which the government may disapprove. Page 14 This risk of viewpoint discrimination is subject to a relatively simple safeguard, however. If combating secondary effects of property devaluation and crime is truly the reason for the regulation, it is possible to show by empirical evidence that the effects exist, that they are caused by the expressive activity subject to the zoning, and that the zoning can be expected either to ameliorate them or to enhance the capacity of the government to combat them (say, by concentrating them in one area), without suppressing the expressive activity itself. This capacity of zoning regulation to address the practical problems without eliminating the speech is, after all, the only possible excuse for speaking of secondary-effects zoning as akin to time, place, or manner regulations. *458 In examining claims that there are causal relationships between adult businesses and an increase in secondary effects (distinct from disagreement), and between zoning and the mitigation of the effects, stress needs to be placed on the empirical character of the demonstration available. See Metromedia, Inc. v. San Diego, 453 U.S. 490, 510, 101 S.Ct. 2882,69 L.Ed.2d 800 (1981) ( "[J]udgments ... defying objective evaluation... must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose"); Young, 427 U.S., at 84, 96 S.Ct. 2440 (Powell, J., concurring) ("[C]ourts must be alert ... to the possibility of using the power to zone as a pretext for suppressing expression"). The weaker the demonstration of facts distinct from disapproval of the "adult" viewpoint, the greater the likelihood that nothing more than condemnation of the viewpoint drives the regulation. [FN3] FN3. Regulation of commercial speech, which is like secondary-effects zoning in being subject to an intermediate level of First Amendment scrutiny, see Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n ofN. Y., 447 U.S. 557, 569, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), provides an instructive parallel in the cases enforcing an evidentiary requirement to ensure that an asserted rationale does not cloak an illegitimate governmental motive. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995); Edenfieldv. Fane, 507 U.S. 761, 1.13 S.Ct. 1792, 123 L.Ed.2d 543 (1993). The government's "burden is not satisfied by mere speculation or conjecture," but only by "demonstrating] that the harms [the government] recites are real and that its restriction will in fact alleviate them to a material degree." Id., at 770-771, 113 S.Ct. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 15 1792. For unless this "critical" requirement is met, Rubin, supra, at 487, 115 S.Ct. 1585, "a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression," Edenfield, supra, at 771,113 S.Ct. 1792. Equal stress should be placed on the point that requiring empirical justification of claims about property value or crime is not demanding anything Herculean. Increased crime, like prostitution and muggings, and declining property values in areas surrounding adult businesses, are all readily observable, often to the untrained eye and certainly to the police officer and urban planner. These harms can be shown by police reports, crime statistics, and studies of market *459 value, all of which are within a municipality's capacity or available from the distilled experiences of comparable communities. See, e.g., **1747Renton, supra, at 51, 106 S.Ct. 925; Young, supra, at 55, 96 S.Ct. 2440. And precisely because this sort of evidence is readily available, reviewing courts need to be wary when the government appeals, not to evidence, but to an uncritical common sense in an effort to justify such a zoning restriction. It is not that common sense is always illegitimate in First Amendment demonstration. The need for independent proof varies with the point that has to be established, and zoning can be supported by common experience when there is no reason to question it. We have appealed to common sense in analogous cases, even if we have disagreed about how far it took us. See Erie v. Pap's A.M., 529 U.S. 277, 300-301, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (pluralityopinion); id, at313, andn. 2,120 S.Ct. 1382 (SOUTER, J., concurring in part and dissenting in part). But we must be careful about substituting common assumptions for evidence, when the evidence is as readily available as public statistics and municipal property valuations, lest we find out when the evidence is gathered that the assumptions are highly debatable. The record in this very case makes the point. It has become a commonplace, based on our own cases, that concentrating adult establishments drives down the value of neighboring property used for other purposes. See Renton, 475 U.S., at 51, 106 S.Ct. 925; Young, supra, at 55, 96 S.Ct. 2440. In fact, however, the city found that general assumption unjustified by its 1977 study. App. 39,45. The lesson is that the lesser scrutiny applied to content-correlated zoning restrictions is no excuse for a government's failure to provide a factual demonstration for claims it makes about secondary effects; on the contrary, this is what demands the demonstration. See, e.g., Schad v. Mount Ephraim, 452 U.S. 61, 72-74, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). In this case, however, the government has not shown that bookstores containing viewing booths, isolated from other adult establishments, increase *460 crime or produce other negative secondary effects in surrounding neighborhoods, and we are thus left without substantial justification for viewing the city's First Amendment restriction as content correlated but not simply content based. By the same token, the city has failed to show any causal relationship between the breakup policy and elimination or regulation of secondary effects. II Our cases on the subject have referred to studies, undertaken with varying degrees of formality, showing the geographical correlations between the presence or concentration of adult business establishments and enhanced crime rates or depressed property values. See, e.g., Renton, supra, at 50-51, 106 S.Ct. 925; Young, 427 U.S., at 55, 96 S.Ct. 2440. Although we have held that intermediate scrutiny of secondary-effects legislation does not demand a fresh evidentiary study of its factual basis if the published results of investigations elsewhere are "reasonably" thought to be applicable in a different municipal setting, Renton, supra, at 51-52, 106 S.Ct. 925, the city here took responsibility to make its own enquiry. App. 35-162. As already mentioned, the study was inconclusive as to any correlation between adult business and lower property values, id., at 45,106 S.Ct. 925, and it reported no association between higher crime rates and any isolated adult establishments. But it did find a geographical correlation of higher concentrations of adult establishments with higher crime rates, id., at 43, 106 S.Ct. 925, and with this study in hand, Los Angeles enacted its 1978 ordinance requiring dispersion of adult stores and theaters. This original position of the ordinance is not challenged today, and I will assume its justification on the theory accepted in Young, that eliminating concentrations of adult establishments will spread out the documented secondary effects and render them more manageable that way. **1748 The application of the 1983 amendment now before us is, however, a different matter. My concern is not with the *461 assumption behind the amendment itself, that a conglomeration of adult businesses under one roof, as in a minimall or adult department store, will produce undesirable secondary effects comparable to what a cluster of separate adult establishments brings Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 16 about, ante, at 1735. That may or may not be so. The assumption that is clearly unsupported, however, goes to the city's supposed interest in applying the amendment to the book and video stores in question, and in applying it to break them up. The city, of course, claims no interest in the proliferation of adult establishments, the ostensible consequence of splitting the sales and viewing activities so as to produce two stores where once there was one. Nor does the city assert any interest in limiting the sale of adult expressive material as such, or reducing the number of adult video booths in the city, for that would be clear content-based regulation, and the city was careful in its 1977 report to disclaim any such intent. App. 54. [FN4] FN4. Finally, the city does not assert an interest in curbing any secondary effects within the combined bookstore-arcades. In Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821 (1979), the Fourth Circuit upheld a similar ban in North Carolina, relying in part on a county health department report on the results of an inspection of several of the combined adult bookstore-video arcades in Wake County,North Carolina. Id, at 828-829, n. 9. The inspection revealed unsanitary conditions and evidence of salacious activities taking place within the video cubicles. Ibid. The city introduces this case to defend its breakup policy although it is not clear from the opinion how separating these video arcades from the adult bookstores would deter the activities that took place within them. In any event, while Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), allowed a city to rely on the experiences and studies of other cities, it did not dispense with the requirement that "whatever evidence the city relies upon [be] reasonably believed to be relevant to the problem that the city addresses," id., at 51-52, 106 S.Ct. 925, and the evidence relied upon by the Fourth Circuit is certainly not necessarily relevant to the Los Angeles ordinance. Since November 1977, five years before the enactment of the ordinance at issue, Los Angeles has regulated adult video booths, prohibiting doors, setting minimum levels of lighting, and requiring that their interiors be fully visible from the entrance to the premises. Los Angeles Municipal Code §§ 103.101(i), (j). Thus, it seems less likely that the unsanitary conditions identified in Hart Book Stores would exist in video arcades in Los Angeles, and the city has suggested no evidence that they do. For that reason, Hart Book Stores gives no indication of a substantial governmental interest that the ban on multiuse adult establishments would further. *462 Rather, the city apparently assumes that a bookstore selling videos and providing viewing booths produces secondary effects of crime, and more crime than would result from having a single store without booths in one part of town and a video arcade in another. [FN5] But the city neither says this in so many words nor proffers any evidence to support even the simple proposition that an otherwise lawfully located adult bookstore combined with video booths will produce any criminal effects. The Los Angeles study treats such combined stores as one, see id, at 81-82,96 S.Ct. 2440, and draws no general conclusion that individual stores spread apart from other adult establishments (as under the basic Los Angeles ordinance) are associated with any degree of criminal activity above the general norm; nor has the city called the Court's attention to any other empirical study, or even anecdotal police evidence, that supports the city's assumption. In fact, if the Los Angeles study sheds any light whatever on the city's position, it is the light of skepticism, for we may fairly suspect that the study said nothing about the secondary effects of **1749 freestanding stores because no effects were observed. The reasonable supposition, then, is that splitting some of them up will have no consequence for secondary effects whatever. [FN6] FN5. The plurality indulges the city's assumption but goes no further to justify it than stating what is obvious from what the city's study says about concentrations of adult establishments (but not isolated ones): the presence of several adult businesses in one neighborhood draws "a greater concentration of adult consumers to the neighborhood, [which] either attracts or generates criminal activity." Ante, at 1735. FN6. In Renton, the Court approved a zoning ordinance "aimed at preventing the secondary effects caused by the presence of even one such theater in a given neighborhood." 475 U.S., at 50, 106 S.Ct. 925. The city, however, does not appeal to that decision to show that combined bookstore-arcades isolated from other adult establishments, like Copr. © West 2003 No Claim to Orig. U.S. Govt. Works '«*«*"' the theaters in Renton, give rise to negative secondary effects, perhaps recognizing that such a finding would only call into doubt the sensibility of the city's decision to proliferate such businesses. See ante, at 1736. Although the question may be open whether a city can rely on the experiences of other cities when they contradict its own studies, that question is not implicated here, as Los Angeles relies exclusively on its own study, which is tellingly silent on the question whether isolated adult establishments have any bearing on criminal activity. *463 The inescapable point is that the city does not even claim that the 1977 study provides any support for its assumption. We have previously accepted studies, like the city's own study here, as showing a causal connection between concentrations of adult business and identified secondary effects. [FN7] Since that is an acceptable basis for requiring adult businesses to disperse when they are housed in separate premises, there is certainly a relevant argument to be made that restricting their concentration at one spacious address should have some effect on sales, traffic, and effects in the neighborhood. But even if that argument may justify a ban on adult "minimalls," ante, at 1735, it provides no support for what the city proposes to do here. The bookstores involved here are not concentrations of traditionally separate adult businesses that have been studied and shown to have an association with secondary effects, and they exemplify no new form of concentration like a mall under one roof. They are combinations of selling and viewing activities that have commonly been combined, and the plurality itself recognizes, ante, at 1736, that no study conducted by the city has reported that this type of traditional business, any more than any other adult business, has a correlation with secondary effects *464 in the absence of concentration with other adult establishments in the neighborhood. And even if splitting viewing booths from the bookstores that continue to sell videos were to turn some customers away (or send them in search of video arcades in other neighborhoods), it is nothing but speculation to think that marginally lower traffic to one store would have any measurable effect on the neighborhood, let alone an effect on associated crime that has never been shown to exist in the first place. [FN8] FN7. As already noted, n. 1, supra, amicus First Amendment Lawyers Association argues that more recent studies show no such thing, but this case involves no such challenge to the Page 17 previously accepted causal connection. FN8. Justice KENNEDY would indulge the city in this speculation, so long as it could show that the ordinance will "leavfe] the quantity and accessibility of speech substantially intact." Ante, at 1742 (opinion concurring in judgment). But the suggestion that the speculated consequences may justify content-correlated regulation if speech is only slightly burdened turns intermediate scrutiny on its head. Although the goal of intermediate scrutiny is to filter out laws that unduly burden speech, this is achieved by examining the asserted governmental interest, not the burden on speech, which must simply be no greater than necessary to further that interest. Erie, 529 U.S., at 301, 120 S.Ct. 1382; see also n. 2, supra. Nor has Justice KENNEDY even shown that this ordinance leaves speech "substantially intact." He posits an example in which two adult stores draw 100 customers, and each business operating separately draws 49. Ante, at 1743. It does not follow, however, that a combined bookstore-arcade that draws 100 customers, when split, will yield a bookstore and arcade that together draw nearly that many customers. Given the now double outlays required to operate the businesses at different locations, see infra, at 1751, the far more likely outcome is that the stand-alone video store will go out of business. (Of course, the bookstore owner could, consistently with the ordinance, continue to operate video booths at no charge, but if this were always commercially feasible then the city would face the separate problem that under no theory could a rule simply requiring that video booths be operated for free be said to reduce secondary effects.) **1750 Nor is the plurality's position bolstered, as it seems to think, ante, at 1736, by relying on the statement in Renton, that courts should allow cities a " 'reasonable opportunity to experiment with solutions to admittedly serious problems,' " 475 U.S., at 52, 106 S.Ct. 925. The plurality overlooks a key distinction between the zoning regulations at issue in Renton and *465 Young (and in Los Angeles as of 1978), and this new Los Angeles breakup requirement. In those two cases, the municipalities' substantial interest for purposes of intermediate scrutiny was an interest in choosing between two strategies to deal with crime or property value, each strategy tied to the businesses' Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 18 location, which had been shown to have a causal connection with the secondary effects: the municipality could either concentrate businesses for a concentrated regulatory strategy, or disperse them in order to spread out its regulatory efforts. The limitations on location required no further support than the factual basis tying location to secondary effects; the zoning approved in those two cases had no effect on the way the owners of the stores carried on their adult businesses beyond controlling location, and no heavier burden than the location limit was approved by this Court. The Los Angeles ordinance, however, does impose a heavier burden, and one lacking any demonstrable connection to the interest in crime control. The city no longer accepts businesses as their owners choose to conduct them within their own four walls, but bars a video arcade in a bookstore, a combination shown by the record to be commercially natural, if not universal. App. 47-51, 229-230, 242. Whereas Young and Renton gave cities the choice between two strategies when each was causally related to the city's interest, the plurality today gives Los Angeles a right to "experiment" with a First Amendment restriction in response to a problem of increased crime that the city has never even shown to be associated with combined bookstore-arcades standing alone. But the government's freedom of experimentation cannot displace its burden under the intermediate scrutiny standard to show that the restriction on speech is no greater than essential to realizing an important objective, in this case policing crime. Since we cannot make even a best guess that the city's breakup policy will have any effect on crime *466 or law enforcement, we are a very far cry from any assurance against covert content-based regulation. [FN9] FN9. The plurality's assumption that the city's "motive" in applying secondary-effects zoning can be entirely compartmentalized from the proffer of evidence required to justify the zoning scheme, ante, at 1737, is indulgent to an unrealistic degree, as the record in this case shows. When the original dispersion ordinance was enacted in 1978, the city's study showing a correlation between concentrations of adult business and higher crime rates showed that the dispersal of adult businesses was causally related to the city's law enforcement interest, and that in turn was a fair indication that the city's concern was with the secondary effect of higher crime rates. When, however, the city takes the further step of breaking up businesses with no showing that a traditionally combined business has any association with a higher crime rate that could be affected by the breakup, there is no indication that the breakup policy addresses a secondary effect, but there is reason to doubt that secondary effects are the city's concern. The plurality seems to ask us to shut our eyes to the city's failings by emphasizing that this case is merely at the stage of summary judgment, ante, at 1736, but ignores the fact that at this summary judgment stage the city has made it plain that it relies on no evidence beyond the 1977 study, which provides no support for the city's action. And concern with content-based regulation targeting a viewpoint is right to the point here, as witness a fact that involves no guesswork If we take the city's breakup policy at its face, enforcing it will mean that in every case two establishments will operate instead of the traditional one. Since the city presumably does not wish **1751 merely to multiply adult establishments, it makes sense to ask what offsetting gain the city may obtain from its new breakup policy. The answer may lie in the fact that two establishments in place of one will entail two business overheads in place of one: two monthly rents, two electricity bills, two payrolls. Every month business will be more expensive than it used to be, perhaps even twice as much. That sounds like a good strategy for driving out expressive adult businesses. It sounds, in other words, like a policy of content-based regulation. I respectfully dissent. 122 S.Ct. 1728, 535 U.S. 425, 152 L.Ed.2d 670, 70 USLW 4369,30 Media L. Rep. 1769,2 Cal. Daily Op. Serv. 4067,2002 Daily Journal D.A.R. 5167,15 Fla. L. Weekly Fed. S 267 Briefs and Other Related Documents (Back to top) • 2001 WL 1577190,70 USLW 3382 (Oral Argument) Oral Argument (Dec. 04, 2001) • 2001 WL 1104728 (Appellate Brief) PETITIONER'S REPLY BRIEF (Sep. 18, 2001) • 2001 WL 1575796 (Appellate Brief) RESPONDENTS' BRIEF ON THE MERITS (Aug. 17, 2001) • 2001 WL 950922 (Appellate Brief) BRIEF AMICUS CURIAE OF THE DKT LIBERTY PROJECT IN SUPPORT OF RESPONDENTS (Aug. 17,2001) Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 19 • 2001 WL 950921 (Appellate Brief) BRIEF AND APPENDIX OF THE FIRST AMENDMENT LAWYERS ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF AFFIRMANCE (Aug. 16, 2001) • 2001 WL 965537 (Appellate Brief) BRIEF OF AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, FEMINISTS FOR FREE EXPRESSION, FREEDOM TO READ FOUNDATION, INTERNATIONAL PERIODICAL DISTRIBUTORS ASSOCIATION, PUBLISHERS MARKETING ASSOCIATION, and VIDEO SOFTWARE DEALERS ASSOCIATION AS AM ICI CURIAE IN SUPPORT OF RESPONDENTS (Aug. 15,2001) • 2001 WL 521453 (Appellate Brief) BRIEF OF THE U.S. CONFERENCE OF MAYORS, NATIONAL LEAGUE OF CITIES, NATIONAL ASSOCIATION OF COUNTIES, NATIONAL CONFERENCE OF STATE LEGISLATURES, NATIONAL GOVERNORS ASSOCIATION, INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION, COUNCIL OF STATE GOVERNM ENTS, AND INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION AS AMICI CURIAE SUPPORTING PETITIONER (May. 15, 2001) • 2001 WL 540507 (Appellate Brief) BRIEF OF OHIO AND 24 STATES AS AMICUS CURIAE IN SUPPORT OF PETITIONER (May. 15, 2001) • 2001 WL 515060 (Appellate Brief) BRIEF OF AMICI CURIAE AMERICAN PLANNING ASSOCIATION AND COMMUNITY DEFENSE COUNSEL IN SUPPORT OF THE CITY OF LOS ANGELES (May. 14, 2001) • 2001 WL 535665 (Appellate Brief) BRIEF FOR THE PETITIONER (May. 14,2001) • 2001 WL 515065 (Appellate Brief) BRIEF AMICUS CURIAE OF MORALITY IN MEDIA, INC. IN SUPPORT OF PETITIONER (May. 11, 2001) • 2001 WL 34091983 (Appellate Filing) Brief of Capitol Resource Institute & Campaign for California Families as Amici Curiae in Support of Petitioner (May. 02, 2001) • 2001 WL 476080 (Appellate Brief) BRIEF OF CAPITOL RESOURCE INSTITUTE & CAMPAIGN FOR CALIFORNIA FAMILIES AS AMICI CURIAE IN SUPPORT OF PETITIONER (May. 02,2001) • 2001 WL 34091925 (Appellate Filing) Reply to Brief in Opposition (Jan. 17, 2001) • 2001 WL 34090256 (Appellate Filing) Brief in Opposition to Petition for Writ of Certiorari (Jan. 05, 2001) • 2001 WL 34091984 (Appellate Filing) Brief of Amici Curiae 118 California Cities in Support of Petition for Writ of Certiorari (Jan. 05, 2001) • 2000 WL 33979552 (Appellate Filing) Petition for Writ of Certiorari (Nov. 17, 2000) END OF DOCUMENT Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 15 Pagel 3 Cal.4th 832 838 P.2d 223, 12 Cal.Rptr.2d 701 (Cite as: 3 CaUth 832) CITY OF NATIONAL CITY, Plaintiff and Appellant, v. STEVEN D. WIENER et al., Defendants and Respondents. No. S020887. Supreme Court of California Oct29, 1992. SUMMARY The trial court, in an action by a city against the owners of an adult bookstore, found that a zoning ordinance restricting the location of adult entertainment businesses was a reasonable time, place, and manner regulation designed to serve a substantial government interest. The ordinance prohibited an adult business from locating within 1,500 feet of another adult business, 1,500 feet of a school or public park, or 1,000 feet of any residentially zoned property, except that such restrictions did not apply if the business was located in an enclosed or inward-facing shopping mall. The trial court also found that the ordinance provided reasonable alternative avenues of communication. It found that the operation of the bookstore at its present location was in violation of the ordinance and granted the city's request for a declaration that the bookstore constituted a public nuisance, and permanently enjoined defendants from operating an adult business at that location. (Superior Court of San Diego County, No. 578784, Vincent P. Di Figlia, Judge.) The Court of Appeal, Fourth Dist., Div. One. No. DO 10801, reversed. The Supreme Court reversed the judgment of the Court of Appeal and remanded with instructions to reinstate the trial court's judgment. The court held that the ordinance was properly analyzed as a form of time, place, and manner regulation under U.S. Const., 1st Amend., and that the ordinance was content-neutral, since it was aimed not at the content of materials sold, but rather at the secondary effects of adult businesses on the surrounding community. It also held that there was substantial evidence that the ordinance furthered a substantial governmental interest. The court further held that there was substantial evidence that the ordinance provided reasonable alternative avenues of communication that satisfied U.S. Const., 1st Amend., requirements. The ordinance made available the entire commercially zoned area of the city, or 572 acres of land, on which to locate an adult business. Allegations concerning the lack of sites currently for rent, the unwillingness of owners of shopping malls to rent to defendants, and the considerable cost of building a shopping center, to which the distance regulations were inapplicable, did not establish constitutional infirmity. (Opinion by Arabian, J., *833 with Lucas, C. J., Panelli, Baxter and George, JJ., concurring. Separate concurring opinion by Baxter, J. Separate concurring and dissenting opinion by Mosk, J., with Kennard, J., concurring.) HEADNOTES Classified to California Digest of Official Reports (1) Constitutional Law § 60~Governmental Regulation and Restriction of Fundamental Rights-Pornography-Zoning-AdultBusiness—Content Neutrality. A city ordinance prohibiting an adult entertainment business from locating within 1,500 feet of another adult business, within 1,500 feet of a public school or public park, or within 1,000 feet of any residentially zoned property, but allowing location anywhere if it was in a retail shopping center, was properly analyzed as a form of time, place, and manner regulation under U.S. Const., 1st Amend. Moreover, the ordinance was content-neutral, since it was aimed not at the content of materials sold, but rather at the secondary effects of adult businesses on the surrounding community. It was enacted as part of a comprehensive scheme of urban redevelopment in an effort to combat blight. (2) Constitutional Law § 60~Governmental Regulation and Restriction of Fundamental Rights-Pornography-Zoning-Adult Business—Content Neutrality— Motive. In an action by a city against owners of an adult bookstore, the trial court's implied finding that the city zoning ordinance, which regulated adult entertainment establishments, was a content-neutral time, place, and manner regulation under U.S. Const., 1 st Amend., was supported by the evidence. The city's planning director categorically denied that the city planners were aware of any reluctance of owners of certain shopping malls, which were exempted from the restrictions of the ordinance, to rent to adult businesses, and denied any motivation on the part of the city to eliminate adult Page 2 businesses. He testified the purpose of the ordinance was to alleviate the secondary effects of adult businesses, while allowing reasonable alternative locations for them. A court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. (3) Constitutional Law § 60~Govemmental Regulation and Restriction of Fundamental Rights--Pornography--Zoning--Adult Business—Substantial Government Interest. In an action by a city for a preliminary and permanent injunction against the continued operation of an adult bookstore pursuant to a city ordinance regulating adult entertainment establishments, there was substantial evidence that the *834 ordinance furthered a substantial governmental interest. There was evidence that adult businesses were a source of urban decay, and that the location of the bookstore had led to the secondary effects the ordinance sought to curtail. The city demonstrated that both a distance regulation and a shopping center exception were designed to serve a substantial government interest in decreasing blight and crime, shifting part of the regulatory burden to the private sector, by either dispersing adult businesses, or by placing them in locations such as enclosed shopping malls that were designed to minimize the occurrence of negative secondary effects, and protecting the city's tax base. There was testimony that the result of such regulation was a healthier economic base for the city. (4) Constitutional Law § 60—Governmental Regulation and Restriction of Fundamental Rights--Pornography--Zoning--Adult Business—Reasonable Alternative Avenues of Communication. In an action by a city against owners of an adult bookstore pursuant to a zoning ordinance establishing distance regulations as to the location of such businesses, there was substantial evidence that the ordinance provided reasonable alternative avenues of communication that satisfied U.S. Const., 1st Amend., requirements. The ordinance made available the entire commercially zoned area of the city, or 572 acres of land, on which to locate an adult business. Allegations concerning the lack of sites currently for rent, the unwillingness of owners of available sites to rent to defendants, and the considerable cost of building a shopping center, to which the distance regulations were inapplicable, did not establish constitutional infirmity. The reluctance or outright refusal of private landowners to rent to adult businesses was not dispositive of the issue of whether the ordinance provided a reasonable opportunity for such businesses to locate within the city. Local governments are not responsible for the business decisions of private individuals who act for their own economic concerns without any reference to the First Amendment. Moreover, the fact that there was only one other adult business operating within the city was, without more, of no particular significance in evaluating the validity of the ordinance: there is no constitutional mandate for a ratio of adult businesses to a particular population figure. [Validity of "war zone" ordinances restricting location of sex- oriented businesses, note, 1 A.L.R.4th 1297. See also CaI.Jur.3d (Rev), Constitutional Law, §§ 260, 265; 7Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 319.] *835 COUNSEL George H. Eiser III, City Attorney, and Linda Kaye Harter, Assistant City Attorney, for Plaintiff and Appellant. John W. Witt, City Attorney (San Diego), Stuart H. Swett, Chief Deputy City Attorney, Joseph M. Schilling, Deputy City Attorney, David L. Llewellyn, Jr., H. Robert Showers and Gene L. Malpas as Amici Curiae on behalf of Plaintiff and Appellant. Norman R. Atkins, Weston & Sarno, John H. Weston and G. Randall Garrou for Defendants and Respondents. ARABIAN, J. The question we consider is the constitutionality of a municipal zoning ordinance that regulates adult entertainment establishments. The precise issue is whether a zoning ordinance that combines both distance regulations and an exception for location of adult businesses in certain shopping malls conforms with First Amendment principles under the standard set forth inCityofRenton v. Playtime Theatres, Inc. (1986)475 U.S. 41 [89 L.Ed.2d 29, 106 S.Ct. 925] (Renton). We conclude that the ordinance is constitutional. I. Facts and Procedural Background City of National City (the city or National City) is located approximately five miles from downtown San Diego. It is highly accessible, crisscrossed by two major freeways, several major arterials, and an abundance of surface street traffic. To the west lies San Diego Bay. Its three other borders lie adjacent to property belonging to other cities and the County of San Diego. It is home to a large naval installation that significantly affects the area in terms of traffic, public resources, and crime. Page3 The city's total area is 8.65 square miles or 5,536 gross acres. Only 3,196 acres, or 58 percent of the city's land, are available for any land use purpose whatsoever. Of those 3,196 acres, 572 acres, or 17.9 percent of the total net acres, are zoned for commercial use; 1,296 acres, or 40.6 percent, are zoned for residential use; 541 acres, or 16.9 percent, are zoned for industrial use; and 787 acres, or 24.6 percent, are zoned for institutional, including military, use. In December 1986, respondents Steven D. Wiener, individually and doing business as Chuck's Bookstore, and his sister Patricia Sanders (respondents) *836 opened Chuck's Bookstore, an adult bookstore and arcade, at 929 National City Boulevard in the city. [FN1] Shortly thereafter, the city brought an action in superior court seeking a preliminary and permanent injunction against the continued operation of Chuck's Bookstore by respondents pursuant to chapter 18 of the city municipal code regulating adult establishments. The city claimed that the bookstore constituted a common law and statutory nuisance, [FN2] and that the store was operating in violation of certain sections of the municipal code, including section 18.69.030. [FN3] Respondents ultimately conceded that Chuck's Bookstore violated the ordinance by virtue of its proximity to both another adult entertainment establishment and a residential area, but claimed that section 18.69.030 was unconstitutional. rule on the issue, it would be inappropriate for us to reach the issue. Accordingly, we decline to resolve this action on the ground of common law public nuisance, and conclude that it is appropriate for us to reach the constitutional issue. FN3 Section 18.69.030 provides in relevant part: "A. No person or entity shall own, establish, operate, control or enlarge, or cause or permit the establishment, operation, enlargement or transfer of ownership or control, except pursuant to Section 18.69.060, of any of the following adult entertainment establishments if such adult entertainment establishment is within one thousand five hundred feet of another adult entertainment establishment or within one thousand five hundred feet of any school or public park within the city or within one thousand feet of any residentially zoned property in the city, measured along street frontages: " 1. Adult bookstore; "3. Adult mini-motion picture arcade (peep shows); FN1 Prior to opening the Chuck's Bookstore at 929 National City Boulevard, Wiener had operated another adult bookstore and arcade at 829 National City Boulevard. After the earlier store was closed by the city during redevelopment, respondents opened Chuck's Bookstore at 929 National City Boulevard, where it became the subject of the current action. FN2 Although the city's action was for both statutory and common law public nuisance, the superior court's statement of decision relied solely on the statutory basis for imposing the requested injunctive relief. On appeal, the Court of Appeal also addressed only the statutory public nuisance issue and denied the city's petition for rehearing (opposed by respondents) requesting a ruling on the issue of common law public nuisance. Finally, at oral argument before this court, respondents urged the court that given what they characterized as a lack of evidence in the record on the issue of common law public nuisance, and the failure of the lower courts to "C. Nothing in this chapter prohibits the location of adult entertainment establishments within retail shopping centers in all commercial zones wherein such activities will have then" only frontage upon enclosed malls or malls isolated from direct view from public streets, parks, schools, churches or residentially zoned property." The parties stipulated that Chuck's Bookstore is an "adult entertainment establishment" within the meaning of the municipal code. City municipal code section 18.69.030 (the ordinance) prohibits an adult business from locating within 1,500 feet of another adult business, 1,500 feet of a school or public park, or 1,000 feet of any residentially zoned property. The ordinance limits neither the total number of adult businesses that may locate in the city, nor the hours they may operate. It "grandfathers" existing *837 adult businesses, and hence does not apply to another adult business in the city, the Pussycat Theater. Mr. Post, the city's Planning Director, testified that the ordinance was enacted after the city had performed a study and conducted one or more public hearings before Page 4 the city's Planning Commission, and was part of a comprehensive scheme of urban redevelopment. According to Mr. Post, the city suffers the second highest crime rate in San Diego County, and urban decay is rife throughout the city. Its population is largely transient, and its per capita income is one of the lowest in the county. Because of low property values in its residential area, the city is heavily reliant on its commercial tax base for revenue, and there was testimony that the area zoned for commercial use is proportionately larger than in other cities. Moreover, there was testimony that the neighborhood surrounding Chuck's Bookstore has experienced deleterious effects as a result of respondents' current location. [FN4] These problems were widely publicized in a series of articles appearing in the local newspaper, the Star News. FN4 Following the opening of respondents' business at its current location, one neighbor, Ms. Janice Martinelli, observed men urinating in her backyard. Her nine-year-old son found used condoms and pornographic reading material in her yard, and was once chased by one of respondents' customers. Ms. Martinelli no longer allows him to play in the backyard. Prior to June of 1988, when lockable doors on the respondents' viewing booths were removed, one Star News reporter, Mr. Dane David Schiller, testified that he observed a patron placing his penis in a "glory hole" in a viewing booth, and on numerous occasions observed puddles of semen on the floor of the booths. Mr. Rich Chriss, circulation manager and part-time reporter for the Star News, testified that also prior to the removal of the lockable doors, on four or five occasions, he observed male patrons placing their penises in the "glory holes." Mr. Chriss further testified that he observed acts of oral and anal sex in the booths, and anal sex in the alley behind respondents' business. The city employs "strip zoning," or commercial zoning on either side of heavily trafficked arterials; thus its commercial zones are generally in close proximity to residential areas. As a result, only 4.5 of the 572 commercially zoned acres not already developed into a shopping mall lie beyond the distance requirements of the ordinance. This parcel of land is located in the southern portion of the city, fronting on National City Boulevard. There was evidence that it currently contains a 9,000-square- foot building and a motorcycle shop. To allow for a greater number of alternative sites for adult businesses, while still attempting to minimize their negative impact, the ordinance also provides that adult businesses are not subject to the distance requirements, and may locate anywhere within the city's 572 acres of commercially zoned property, if they are located in a retail shopping center. Under this exception, either the frontage of the business must be oriented to an enclosed mall or the business must be in a mall isolated from direct view from public streets, parks, schools, churches, and residentially zoned property. *838 Three existing shopping centers were identified as fulfilling the enclosed mall requirements: the Plaza Bonita Shopping Center, South Bay Plaza, and Sweetwater Town and Country. While vacancies existed at all three of these malls, not all portions of South Bay Plaza or Sweetwater Town and Country conformed to the specifications of the ordinance. It was estimated that only 5,000 to 6,000 square feet of space at Sweetwater Town and Country, and 12,000 square feet of space at South Bay Plaza, met the ordinance's criteria. Moreover, respondents' expert witness testified that none of these three malls would rent space to an adult entertainment business. The witness recounted telephone conversations with leasing agents from two of the malls during which the witness inquired generally whether those malls would rent space to an adult business, without identifying a particular business. In addition, new shopping centers may be built or existing malls may be modified in conformance with the ordinance to accommodate adult businesses. Although there was testimony as to the cost and expertise required for such construction, no direct evidence was presented regarding the economic viability of such an enterprise, or the ability of respondents to undertake such development. Finally, there was evidence that there is currently a trend toward developing small retail shopping centers in Southern California, and that it is relatively easy to undertake this type of development in the city. Mr. Post testified that "developing a church would actually be more difficult than developing an adult entertainment enterprise in National City." After a three-day trial, the superior court found that the ordinance was a reasonable time, place, and manner regulation designed to serve a substantial government interest. The court also found that the ordinance provided reasonable alternative avenues of communication, noting that "there are shopping centers in existence in [National City] which could accommodate [respondents'] business and comply with the [ordinance," and that the city had "demonstrated that an abundant amount of land exists for development Page5 of commercial edifices which would conform to the [ordinance] requirements." [FN5] The court further found that the operation of Chuck's Bookstore at its present location was in violation of the ordinance. On that basis, the court *839 granted the city's request for a declaration that Chuck's Bookstore constituted a public nuisance, and permanently enjoined respondents from establishing, maintaining, and operating an adult business, including an adult bookstore, at 929 National City Boulevard. FN5 We note that the trial court's statement of decision characterizes the 572 acres of commercially zoned property as "vacant." Moreover, the Court of Appeal stated in its opinion that the "evidence [was] undisputed that under the ordinance a new or relocating adult entertainment business would be limited to locating" in certain locations, including "572 acres of undeveloped commercial land ..." However, our review of the record reveals uncontroverted evidence that the commercially zoned property was substantially developed. Since neither party has objected to, or appeared misled by the lower courts' mistaken characterizations of the property, and we conclude there are reasonable alternative avenues of communication, the discrepancy is of no significance. The Court of Appeal reversed. While the court found that the ordinance was constitutional on its face, and served a substantial government interest, it concluded that the ordinance as applied failed to provide reasonable alternative avenues of communication under Renton, supra, 475 U.S. 41. Specifically, the court found that the distance regulations allowed too few alternative sites for adult businesses, and that the "purported" opportunity to locate in enclosed malls was "illusive." This finding of illusiveness derived from both "the apparent aversion shopping mall landlords have toward the presence of adult entertainment shops on the premises," and the court's determination that construction of a new shopping facility "would not be economically feasible for the typical adult business entrepeneur." The court also took into consideration counsel's representation at oral argument that the city "has a population of over 57,000 and has only one adult entertainment business in operation." The court stated that while "not controlling, this factor does indicate that as a practical matter the ordinance is highly restrictive." Accordingly, the court held that the city "has not shown there are practical alternative locations for adult entertainment establishments, and thus ordinance 18.69.030 is an impermissible restriction on protected speech." II. Discussion A. Background We are guided in our analysis by two landmark decisions of the United States Supreme Court in Young v. American Mini Theatres, Inc. (1976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440] (Young) and Renton, supra, 475 U.S. 41. While the Court of Appeal cited Young and Renton, it failed to apply their express language or heed their underlying rationale. In Young, the Supreme Court upheld two Detroit zoning ordinances that differentiated "between motion picture theaters which exhibited] sexually explicit 'adult' movies and those which d[id] not" (427 U.S. at p. 52 [49 L.Ed.2d at pp. 315- 316].) "The principal question presented by th[e] case [was] whether that statutory classification [was] unconstitutional because it [was] based on the content of communication protected by the First Amendment." (Ibid.) As the court later explained in Renton, "although five Members of the Court did not agree on a single rationale for the decision [in *840 Young], we held that the city of Detroit's zoning ordinance, which prohibited locating an adult theater within 1,000 feet of any two other ' regulated uses' or within 500 feet of any residential zone, did not violate the First and Fourteenth Amendments." (Renton, supra, 475 U.S. at p. 46 [89 L.Ed.2d at pp. 36-37].) Significantly, Justice Powell, in his concurring opinion in Young, observed, "The constraints of the ordinance with respect to location may indeed create economic loss for some who are engaged in this business. But in this respect they are affected no differently from any other commercial enterprise that suffers economic detriment as a result of land-use regulation." (427 U.S. at p. 78 [49 L.Ed.2d at pp. 330- 331].) In Renton, supra, 475 U.S. at pages 43-44 [89 L.Ed.2d at pages 35-36], "Renton, a city of approximately 32,000 people," sought to zone adult motion picture theaters by providing that they could not be located "within 1,000 feet of any residential zone, single- or multiple- family dwelling, church, park, or school." This distance requirement resulted in a concentration of approved locations for adult theaters. (Id at p. 52 [89 L.Ed.2d at pp. 40-41].) "The ordinance by its terms [was] designed to prevent crime, protect the city's retail trade, maintain property values, and generally 'protecft] and preservfe] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life....'" (Id at p. 48 [89 L.Ed.2d at p. 38].) There was no evidence that "at the time the Renton ordinance was Page 6 enacted, any other adult business [other than Playtime Theatres] was located in, or was contemplating moving into, Renton." (Id at p. 52 [89 L.Ed.ld at pp. 40- 41].) The court first found that the ordinance was "properly analyzed as a form of time, place, and manner regulation" since the ordinance did not ban adult theaters altogether, but merely provided that such businesses could only be located in certain areas. (Renton, supra, 475 U.S. at p. 46 [89 L.Ed.2d at pp. 36-37].) The court also found that the ordinance was content-neutral, since it was "aimed not at the content of the films shown at 'adult motion picture theatres,' but rather at the secondary effects of such theaters on the surrounding community." (Renton, supra, 475 U.S. at p. 47 [89 L.Ed.2d at pp. 37-38].) Relying substantially on its earlier decision in Young, supra, 427 U.S. 50, the high court then upheld the content-neutral time, place, and manner regulation against a First Amendment challenge, and established a two- part test: (1) whether the ordinance is designed to serve a substantial governmental interest, and (2) whether the ordinance allows for reasonable alternative *841 avenues of communication. (Renton, supra, at p. 50 [89 L.Ed.2d at pp. 39-40].) In addition, the Supreme Court noted that while the First Amendment protects sexually explicit communication," '[I]t is manifest that society's interest hi protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate...'" (Id at p. 49, fa. 2 [89 L.Ed.2d at p. 39], quoting Young, supra. 427 U.S. at p. 70 [49 L.Ed.2d at p. 326].) In applying its test to the Renton ordinance, the court found that the first factor was easily satisfied. The court noted that "a city's 'interest in attempting to preserve the quality of urban life is one that must be accorded high respect.' " (Renton, supra, 475 U.S. at p. 50 [89 L.Ed.2d at pp. 39- 40], quoting Young, supra, 427 U.S. at p. 71 [49 L.Ed.2d at pp. 326-327].) The court also found "no constitutional defect in the method chosen by Renton to further its substantial interests." (Renton, supra, 475 U.S. at p. 52 [89 L.Ed.2d at pp. 40-41].) "Cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton." (Ibid)" 'It is not our function to appraise the wisdom of [the city's] decision to require adult theaters to be separated rather than concentrated in the same areas.... [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.'" (Ibid., quoting Young, supra, 427 U.S. at p. 71 [49 L.Ed.2d at pp. 326- 327].) In this connection, the court noted that "the Renton ordinance is 'narrowly tailored' to affect only that category of theaters shown to produce the unwanted secondary effects ..." (Renton, supra, 475 U.S. at p. 52 [89 L.Ed.2d at pp. 40-41]; see Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd. (1991) 502 U.S. , fh. ** [116 L.Ed.2d 476, 491, 112 S.Ct. 501, 511], ["[U]nder Ward and Renton ... regulations must be 'narrowly tailored' to advance the interest asserted by the State."]; People v. Superior Court (Lucero) (1989) 49 Cal.3d 14,27 [259 CaLRptr. 740, 774 P 2d 769] [Ordinance must be "content-neutral and narrowly tailored to minimize only the adverse secondary effects related to adult entertainment establishments."].) More recently, hi Wardv. Rock Against Racism (1989) 491 U.S. 781 [105 L.Ed.2d 661, 109 S.Ct. 2746] ( Ward), the high court has provided further guidance on the "narrowly tailored" requirement. In Ward, the court stated that"... a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but ... it need not be the least restrictive or least intrusive means of doing so." (Id. at p. 798 [105 L.Ed.2d at pp. 679-680].) "Rather, the requirement of narrow tailoring is satisfied 'so long as the... regulation promotes a substantial government interest that would be achieved less *842 effectively absent the regulation.' " (Id at p. 799 [105 L.Ed.2d at pp. 680-681], quoting United States v. Albertini (1985) 472 U.S. 675, 689 [86 L.Ed.2d 536, 548, 105 S.Ct. 2897]). The court noted that "Government may not regulate expression hi such a manner that a substantial portion of the burden on speech does not serve to advance its goals." (Ward, supra, 491 U.S. at p. 799 [105 L.Ed.2d at pp. 680-681].) However, "[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest,... the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative." (Id at p. 800 [105 L.Ed.2d at p. 681].) "[T]he validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct." (Id at p. 801 [105 L.Ed.2d at pp. 681-682].) In explicating the second factor, that the ordinance must allow for reasonable alternative avenues of communication, the Renton court rejected an economic viability standard for determining whether the zoning ordinance was constitutional. Playtime Theatres claimed that the ordinance was invalid in part because as a practical matter it restricted the availability of locations for adult businesses. Under the Renton ordinance, "520 acres, or more than five percent of the entire land area of Renton, [was] open to use as adult theater sites." (Renton, supra, 475 U.S. at p. 53 [89 L.Ed.2d at pp. 41- 42].) "The District Court found, and the Court of Appeals did not dispute the finding, that Page? the 520 acres of land consisted] of [ajmple, accessible real estate,' including 'acreage in all stages of development from raw land to developed, industrial, warehouse, office, and shopping space that is criss- crossed by freeways, highways, and roads.'" (Ibid.) Playtime Theatres contended, however, that "some of the land in question [was] already occupied by existing businesses, that 'practically none' of the undeveloped land [was] currently for sale or lease, and that in general there [were] no 'commercially viable' adult theater sites within the 520 acres left open by the Renton ordinance." (Renton, supra, 475 U.S. at p. 53 [89 L.Ed.2d at pp. 41- 42].) Specifically, "[a] substantial part of the 520 acres [was] occupied by: f (1) a sewage disposal site and treatment plant; ^| (2) a horseracing track and environs; ^[ (3) a business park containing buildings suitable only for industrial use; ^ (4) a warehouse and manufacturing facilities; | (5) a Mobil Oil tank farm; and, ^[ (6) a fully-developed shopping center." (Playtime Theaters, Inc. v. City of Renton (9th Cir. 1984) 748 F.2d 527, 534.) The Ninth Circuit "accepted these arguments, concluded that the 520 acres was not truly 'available' land, and therefore held that the Renton ordinance 'would result hi a substantial restriction' on speech." (Renton, supra, 475 U.S. at pp. 53-54 [89 L.Ed.2d at pp. 41-42], fn. omitted.) *843 The Supreme Court held unequivocally to the contrary: "That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. And although we have cautioned against the enactment of zoning regulations that have 'the effect of suppressing, or greatly restricting access to, lawful speech,1 ... we have never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices. ... The inquiry for First Amendment purposes is not concerned with economic impact.'... In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement." (Renton, supra, 475 U.S. at p. 54 [89 L.Ed.2d at p. 42], quoting Young, supra, 427 U.S. at p. 78 [49 L.Ed.2d at pp. 330-331].) Thus, the court held that "the Renton ordinance represents a valid governmental response to the 'admittedly serious problems' created by adult theaters." (Renton, supra, 475 U.S. at p. 54 [89 L.Ed.2d at p. 42], quoting Young, supra, 427 U.S. at p. 71 [49 L.Ed.2d at pp. 326-327].) "Renton has not used 'the power to zone as a pretext for suppressing expression,'... but rather has sought to make some areas available for adult theaters and their patrons, while at the same tune preserving the quality of life hi the community at large by preventing those theaters from locating in other areas. This, after all, is the essence of zoning." (Ibid.) "Here, as in [Young], the city has enacted a zoning ordinance that meets these goals while also satisfying the dictates of the First Amendment." (Id at pp. 54-55 [89 L.Ed.2d at pp. 42-43].) B. Application of the Renton Analysis In applying the Renton analysis to the ordinance here, we determine as a preliminary matter whether the ordinance is a content-neutral time, place, and manner regulation. If so, we then determine whether the ordinance, and hi particular the shopping center exception, is designed to serve a substantial governmental interest, and allows for reasonable alternative avenues of communication. [FN6] *844 FN6 Respondents attempt to raise in this court several arguments under the California Constitution. Respondents failed to raise these arguments in the Court of Appeal. Accordingly, we do not reach these claims, or decide whether the California Constitution provides greater protection to respondents than the federal Constitution. (Cal. Rules of Court, rule 29.) In addition, respondents raise in this court arguments regarding a conditional use permit amendment to the ordinance. Once again, however, respondents failed to raise these arguments in the Court of Appeal, and we therefore decline to consider them here. Moreover, we note that respondents appear to largely rely on the amendment as further evidence of an alleged impermissible government intent, an argument we consider post and reject. 1. Content-Neutrality (1) Since the city's ordinance, like the one in Renton, does not ban adult businesses altogether, but merely provides that such businesses may only be located hi certain areas, the ordinance is properly analyzed as a form of time, place, and manner regulation. (Renton, supra, 475 U.S. at p. 46 [89 L.Ed.2d at pp. 36-37].) Moreover, we conclude that the ordinance is content-neutral, since the ordinance is, as in Renton, supra, 475 U.S. at page 47 [89 L.Ed.2d at pages 37-38], aimed not at the content of materials sold, but rather at PageS the secondary effects of adult businesses on the surrounding community. [FN7] While the superior court did not expressly address this issue, in its discussion of the evidence in support of its finding that the ordinance was designed to serve a substantial government interest, the court noted that there was testimony that the ordinance "was enacted as part of a comprehensive scheme of urban redevelopment" in an effort to combat blight in National City, and that "the presence of Chuck's Bookstore... has led to 'secondary effects' on the community ..." Moreover, the court's ruling upholding the constitutionality of the ordinance under Renton constitutes an implied finding that the ordinance is content-neutral. The record amply supports this implied finding. FN7 We note that the written stated purpose of the ordinance is to "prevent problems of blight and deterioration which accompany and are brought about by the concentration of adult entertainment establishments." However, there was also evidence that under the shopping center exception, adult businesses could be concentrated so long as they were located in a mall. Hence, it appears that the written stated purpose of the ordinance has not been amended to conform with the addition of the shopping center exception, and the purpose underlying that exception. However, we note that respondents have never contended, and in particular did not contend at the trial level, that the written stated purpose of the ordinance failed to support the city's testimony as to the purpose of the shopping center exception, despite the fact that the issue was brought to the parties' attention by the trial judge. Hence, we conclude that both purposes of the ordinance are supported by substantial evidence, and that we may rely on both purposes in determining that the ordinance is content-neutral. (2) Respondents devote much of their argument to the proposition that the city's ordinance is content-based, and that the "predominant censorial purpose" behind it was to prohibit the establishment of any adult business. In support of this contention, respondents rely on evidence they claim establishes that the city knew or should have known owners of shopping centers would be either reluctant, or would outright refuse, to rent to an adult business. The factual predicate for this argument is unsupported by the record, since Mr. Post categorically denied that city planners were aware of *845 any reluctance to rent. [FN8] More importantly, Mr. Post denied any motivation on the part of the city to eliminate adult businesses. Rather, Mr. Post testified that the purpose of the ordinance was to alleviate the secondary effects of adult businesses, while allowing reasonable alternative locations for those businesses. The trial court apparently credited this testimony, and we see no reason to question its ruling. (See Renton, supra, 475 U.S. at p. 48 [89 L.Ed.2d at p. 38], quoting United States v. O'Brien (1968) 391 U.S. 367,383 [20 L.Ed.2d 672,683-684,88 P.2d 1673] [" 'It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.' "]; Ward, supra, 491 U.S. at p. 791 [105 L.Ed.2d at p. 675], quoting Clarkv. Community for Creative Non-Violence (1984) 468 U.S. 288, 293 [82 L.Ed.2d 221, 226-227, 104 S.Ct. 3065] ["Government regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.'"].) FN8 Rather, respondents' evidence in this regard essentially consists of testimony that it is generally known among realtors that shopping centers do not usually rent to adult businesses. Such generalized, speculative evidence, not linked to any city representative, fails to even rise to the level of an illicit "motivating factor." (See Renton, supra, 475 U.S. at pp. 47-48 [89 L.Ed.2d at pp. 37-38] [distinguishing generally between an illicit "motivating factor" and a legitimate "predominant purpose"].) Respondents also rely on evidence that they claim demonstrates that the city knew or should have known that it would not be economically feasible for an adult business to build its own shopping center. However, as we discuss more fully in our evaluation of whether the ordinance allows for reasonable alternative avenues of communication, the ordinance does not limit respondents' alternatives to such construction. Finally, respondents argue that since the effect of the ordinance is to eliminate all adult businesses, that must be its underlying intent. Since we conclude, post, that the ordinance does not have this effect, we likewise reject respondents' suggestion of illicit intent. In sum, we conclude that the ordinance is content-neutral, and proceed to evaluate the constitutionality of the ordinance under Renton's two- part test. 2. Substantial Government Interest Page 9 (3) We find, as did the two lower courts, that the first prong of "substantial governmental interest" is easily satisfied. The city presented substantial evidence at trial that adult businesses are a source of urban decay, and that the location of the adult business at issue in this case has in fact led to the secondary effects the ordinance seeks to curtail. Moreover, the city *846 demonstrated that both the distance regulation and the shopping center exception are designed to serve substantial government interests in decreasing blight and crime, shifting part of the regulatory burden to the private sector, by either dispersing adult businesses, or by placing them in locations such as enclosed shopping malls designed to minimize the occurrence of negative secondary effects, and protecting the city's tax base. (See Renton, supra, 475 U.S. at p. 48 [89 L.Ed.2d at p. 38] [upholding ordinance "designed to prevent crime, protect the city's retail trade, maintain property values, and generally 'protecft] and presence] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life' "].) We also find that the city's shopping mall exception is narrowly tailored, since the " 'regulation promotes ... substantial government interestfs] that would be achieved less effectively absent the regulation.' " (Ward, supra, 491 U.S. at p. 799 [105 L.Ed.2d at pp. 680-681], quoting United States v. Albertini, supra, 472 U.S. at p. 689 [86 L.Ed.2d at pp. 548-549].) First, under the ordinance, the malls in which adult businesses are permitted to be established are either inward looking configurations, or those "isolated from direct view from public streets, parks, schools, churches or residentially zoned property." Access is by a pedestrian walkway, not a public street. This configuration reduces the secondary effects associated with adult businesses by segregating such businesses away from residential areas and schools, and placing them in a location where they do not affect the moral climate of the community as a whole. Specifically, it decreases the problems of harassment of neighborhood adults and children, littering of sexually explicit reading material and paraphernalia, loitering, and visual blight from bright colors and explicit signage associated with adult businesses. Second, placing adult businesses in shopping centers promotes the city's interests by shifting part of the regulatory burden to the private sector. A shopping center has its own signage, paint, and landscaping restrictions. A mall arrangement also addresses such factors as hours of operation, parking, and security. Thus, a shopping center generally exercises a high degree of control over its tenants. This benefits the city, as Mr. Post testified, by removing it from "the enforcement business. We don't have to expend the amount of resources that we typically would if the shopping center itself is doing some of the policing in terms of these various factors." [FN9] FN9 Moreover, there was testimony that adult businesses are considered "destination retail," i.e., they deal in goods that consumers specifically seek out wherever they are located, and do not require "high visibility" locaations. "Destination retail" businesses are such that if they do relocate, their clientele will typically follow. Finally, there was testimony that the result of reducing the secondary effects of adult businesses, and freeing up public protection resources, is a *847 healthier economic base. As noted above, National City is particularly reliant on its commercial tax base, and hence has a substantial interest in its preservation. Therefore, placing adult businesses in malls furthers the city s substantial interests in reducing the secondary effects of adult businesses, relieving the city from some of the regulatory burden by shifting it to the private sector, and protecting the commercial tax base. 3. Reasonable Alternate Avenues of Communication (4) We also conclude that the ordinance provides reasonable alternative avenues of communication. The ordinance makes available the entire commercially zoned area of the city, or 572 acres of land, on which to locate an adult business. This area is highly accessible by major freeways and arterials. In addition, the ordinance limits neither the total number of adult businesses that may locate in the city, nor the hours they may operate. Finally, the ordinance does " 'not affect the operation of existing establishments but only the location of new ones.' " (Young, supra, 427 U.S. at p. 71, fh. 35 [49 L.Ed.2d at pp. 326-327], citation omitted.) Respondents contend, however, that the availability of sites under the ordinance is "illusory" because of the lack of sites currently for rent, the unwillingness of owners of available sites to rent to them, and the considerable cost of building their own shopping center in compliance with the ordinance. We find none of these arguments establish constitutional infirmity. The high court in Renton made clear that" The inquiry for First Amendment purposes is not concerned with economic impact.' " (Renton, supra, 475 U.S. at p. 54 [89 L.Ed.2d at p. 42], quoting Young, supra, 427 U.S. at p. 78 [49 L.Ed.2d at pp. 330- 331]. See City of Vallejo v. Adult Books (1985) 167 Cal.App.3d 1169, Page 10 1180 [213 Cal.Rptr. 143] ["[E]vidence of the considerable economic difficulty of locating 'adult' uses at many legally permissible sites within the City of Vallejo... falls far short of establishing that appellant is foreclosed or unreasonably restricted by the ordinance from effectively operating within the city limits."], cert, den. (1986) 475 U.S. 1064 [89 L.Ed.2d 601, 106 S.Ct. 1374].) As noted earlier, Renton refused to sustain an economic viability argument on a record demonstrating that a substantial part of the 520 acres zoned for adult businesses was occupied by a sewage disposal site, race track, and other uses restricting, as a practical matter, available sites. Similarly, we decline to find on this record that National *848 City's ordinance fails to provide reasonable alternative avenues of communication. [FN10] FN10 Respondents assert that if we uphold this ordinance, we approve in advance any and all economic restrictions on adult businesses in violation of Renton. While it is conceivable that a zoning ordinance could mandate economic restrictions so severe as to amount to an outright prohibition of First Amendment speech, that is not the case here. Moreover, Renton explicitly rejected the argument that because " 'practically none' of the undeveloped land [was] currently for sale or lease" the ordinance " 'would result in a substantial restriction' on speech." (Renton, supra, 475 U.S. at pp. 53-54 [89 L.Ed.2d at pp. 41-42], citations omitted.) The record here in fact reveals that vacancies existed at all three shopping centers, and that the evidence of landowners' unwillingness to rent consisted essentially of generalized responses by leasing agents to respondents' expert's telephone inquiry, and testimony that it is generally known among realtors that shopping centers do not usually rent to adult businesses. Nor, in this case, is any reluctance or outright refusal of private land owners to rent to adult businesses dispositive of the issue of whether the ordinance provides a reasonable opportunity for such businesses to locate within National City. While a city may not suppress protected speech, neither is it compelled to act as a broker or leasing agent for those engaged in the sale of it. We decline to hold local governments responsible for the business decisions of private individuals who act for then- own economic concerns without any reference to the First Amendment. The Constitution does not saddle municipalities with the task of ensuring either the popularity or economic success of adult businesses. Respondents' reliance on the fact that only one other adult business currently operates within the city is also misplaced. The number of adult businesses is, without more, of no particular significance in evaluating the validity of the ordinance. We find no authority that mandates a constitutional ratio of adult businesses to a particular population figure. [FN11 ] We note that at the tune the Renton ordinance was enacted "no adult theaters were located in *849 Renton ...." (Playtime Theaters, Inc. v. City of Renton, supra, 748 F.2d at p. 530.) Moreover, nothing in this record indicates whether similar enterprises have attempted to locate in the city and have been thwarted by virtue of unreasonable restrictions, or simply found it economically less advantageous than other localities. FN11 We also reject the analysis suggested by the City of San Diego, and the 36 cities joining in its amicus curiae brief, that we look to the availability of adult materials in surrounding communities in determining whether the National City ordinance provides reasonable alternative avenues of communication. In general, " '[o]ne is not to have the exercise of his [or her] liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.'" (Schadv. Borough of Mount Ephraim (1981) 452 U.S. 61, 76-77 [68 Cal.Rptr. 671, 685-686, 101 S.Ct. 2176], quoting Schneider v. State (1939) 308 U.S. 147,163 [84L.Ed.2d 155, 165-166, 60 S.Ct. 146].) Moreover, respondents have filed a motion to strike the factual material filed in support of San Diego's argument, as well as certain factual material attached to the Western Center for Law and Religious Freedom et al.'s amicus curiae brief. We share respondents' concern that none of this material was introduced below, and hence has not been subjected to the rigors of the adversarial process. Accordingly, we have not considered this material in reaching our decision. (See Bily v. Arthur Young & Company (1992) 3 CaUth 370, 405, m. 14 [11 Cal.Rptr.2d 51, 834 P.2d 745] [court may choose to ignore improper material filed in appellate brief rather than strike it from the file].) It is also inaccurate to characterize the ordinance as forcing respondents to build their own shopping mall at prohibitive cost. Rather, this is merely one option under the ordinance. The city has demonstrated that there are three shopping centers, and a partially developed 4.5-acre area, where an adult business may seek to rent an existing location. Moreover, certain malls may be modified in conformance with the ordinance to Page 11 accommodate adult businesses. It is respondents, not the city, who define construction of a new shopping center as their only alternative under the ordinance. Hence, we conclude that the ordinance provides reasonable alternative avenues of communication. Conclusion We hold that National City s ordinance is constitutional under the First Amendment. Accordingly, the judgment of the Court of Appeal is reversed, and the matter remanded with instructions to reinstate the trial court's judgment. Lucas, C. J., Panelli, J., Baxter, J., and George, J., concurred. BAXTER, J. I concur fully in the reasoning and judgment of the majority. I do so because the evidence does not support a conclusion that no bookstore handling "adult" materials would be able to rent space in National City. No evidence was offered that would support a conclusion that a bookstore which is clean, is well maintained and supervised, and which expects both staff and customers to abide by the law and socially acceptable norms of public conduct would be unable to rent space in a mall in National City. While I also agree with Justice Mosk that the evidence in this case would support a judgment that Chuck's Bookstore was a common law public nuisance, the trial court did not make such a finding. In its statement of decision, the court expressly noted that the decision would focus on the city's claim that defendant's operation violated the municipal code. This confirms that the trial court judgment rested solely on the theory of statutory public nuisance. This court may not affirm the judgment on a theory that a *850 common law public nuisance was established. The rule which requires that a reviewing court sustain a judgment if the result is correct even if the trial court based its decision on an erroneous legal theory, has no application here. International etc. Workers v. Landowitz (1942) 20 Cal.2d 418 [126 P.2d 609], on which Justice Mosk relies, was an action in which plaintiffs sought an injunction against future violations of a local ordinance. The trial court sustained a demurrer on the ground that the statute was constitutionally invalid. This court disagreed but nonetheless affirmed the judgment of dismissal because subsequent to the entry of judgment the enabling legislation which authorized adoption of the local ordinance had been repealed. There being no other basis for the action, we applied the rule ofSewell v. Johnson (1913) 165 Cal. 762, 769 [134 P. 704]: "[W]here matters of which the court has judicial knowledge occur subsequent to the trial court's action and have the effect of destroying the basis for the plaintiffs cause of action, it has been held that the appellate court may dispose of the case upon those grounds." (International etc. Workers v. Landowitz, supra, 20 Cal.2d at p. 423.) The rule that an appellate court will affirm a correct judgment even if the trial court's reasoning was faulty was adopted by this court in Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330 [48 P. 117]: "The fact that the action of the [trial] court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. [H] ••• HD m other words, it is judicial action, and not judicial reasoning or argument, which is the subject of review; and, if the former be correct, we are not concerned with the faults of the latter." This rule may not be used to uphold a judgment granting relief on the basis of only one of two or more counts pleaded in the complaint, each of which counts asserts a different basis for relief. "Exceptions exist to the rule of nonreviewability of a trial court's reasons for its decision. The exception ... most germane to this appeal allows for reversal where the trial court has refused to pass on an issue and disposes of the case on an entirely different ground. If the trial court thus chose an *851 improper ground, an appellate court will not uphold the judgment on the ground not addressed by the trial court, //resolution of that issue depends upon conflicting evidence." (United Pacific Ins. Co. v. Hanover Ins. Co. (1990) 217 Cal.App.3d 925, 933, fh. 9 [266 Cal.Rptr. 231], italics in original. See also, Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d 500, 506 [42 Cal.Rptr. 908]; Kynev. Kyne(1943) 60 Cal.App.2d 326,332 [140 P.2d 886]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 262, p. 269.) The trial court in this case did make factual findings that might also support a conclusion that Chuck's Bookstore was a common law public nuisance. It did so only insofar as that evidence was relevant to Page 12 determining that the bookstore had undesirable "secondary" effects, however. The court did not make the findings necessary to resolve whether Chuck's Bookstore was, at the time the action was brought, a common law public nuisance. [FN1] It would not be appropriate, therefore, to uphold the judgment on the basis suggested by Justice Mosk. FN1 Two of the three witnesses who testified regarding the activities and conditions described in footnote 4 of the majority opinion, ante, made their observations a year or more prior to trial. Both acknowledged that prior to trial changes had been made in the interior of the bookstore. Subsequent to their observations a fence had been constructed to separate the rear alleyway from the rear yard of the home directly behind the bookstore. Therefore, although their testimony was uncontradicted, it was not adequate to establish that either the bookstore employees or the patrons currently engaged in the objectionable conduct. The third witness, who lived behind the bookstore, testified that she continued to be bothered by patrons even after the fence was constructed and that her neighbors were also bothered. Her testimony did not establish a common law nuisance as a matter of law, however. MOSK, J., Concurring and Dissenting. There are nine words in the majority opinion with which I agree: "the judgment of the Court of Appeal is reversed." However, because the bulk of the opinion proposes to give effect to a city ordinance that unconstitutionally bans the dissemination of First Amendment-protected material, I must distance myself from its reasoning. First, the facts. At the time of trial, Chuck's Bookstore was the only adult bookstore in National City-a city of more than 57,000-although there is one other sexually oriented business, a movie theater. Purporting to rid itself of urban blight, the city enacted an ordinance prohibiting sexually oriented businesses like Chuck's from locating within 1,500 feet of each other, 1,500 feet of a school or park, or 1,000 feet of a residential zone. Strip development dominates the city's commercial zones; therefore, as the city conceded at trial, the distance rules are an effective ban *852 on places like Chuck's. But the law also provides that Chuck's may operate in any commercial zone, regardless of the aforementioned distance requirements, as long as it is in an enclosed mall or an unenclosed mall in which it faces inward so as to be invisible from the street. The city sought abatement of Chuck's as a common law and statutory public nuisance. The common law claim rested on an allegation that Chuck's was pestiferous to its neighbors. The basis for the statutory claim was that Chuck's violated a National City ordinance: it was too close to residences and the adult theater, and it did not come within any exception to the distance rules because it was not in an enclosed or inward-facing mall. It was uncontested that Chuck's enjoys First Amendment protection and therefore the city must provide reasonable alternative avenues of communication, as constitutionally required. [FN1 ] But much of the city's case focused on its allegation that Chuck's was a common law public nuisance. It is to this theory that I turn first. FN1 The First Amendment does not prevent the state from suppressing obscenity (Roth v. United States (1957) 354 U.S. 476, 485 [I L.Ed.2d 1498, 1507, 77 S.Ct. 1304]), but there was no contention in this case that Chuck's was selling obscene material. I The city could properly seek to have the bookstore abated as a common law public nuisance. (Civ. Code, § 3491, subd. 3; Code Civ. Proc., § 731.) The city alleged, and provided strong evidence at trial, that Chuck's is a classic public nuisance. (Civ. Code, §'§ 3479, 3480.) The store had front and rear entrances. The management would leave the rear door open, evidently without proper supervision, and patrons would wander between Chuck's and the back alley, which ineffectually separated the store from a historically distinguished row of residences. Chuck's patrons would, among other activities, have sex in the bushes, wander into neighboring residents' backyards, bother the neighbors with unsavory requests, and discard condoms and pornographic material on or near neighbors' residential property. Store workers would slop buckets of pungent cleaning fluid into the back alley. [FN2] The record leaves no doubt whatever that defendant did not manage the property properly. *853 Page 13 FN2 Also see the portion of footnote 4 of the majority opinion describing neighbors' injuries. It is important to note, however, that the references in that footnote to indoor conduct, distasteful as that conduct might be to most people, do not describe a nuisance, for the actionable injury presumably would be neither to others on their own property nor to the possessor of the indoor premises. (See Manginiv. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1133-1137 [281 Cal.Rptr. 827].) The common law of nuisance has been codified in our Civil Code. Thus it has a statutory basis. Nevertheless, I shall continue to refer to the first cause of action as one for common law nuisance, to distinguish it from the second cause of action under the National City ordinance, which is also statutory. Thus there was ample evidence to sustain the trial court's judgment that the bookstore was a public nuisance. The judgment did not specify, however, whether Chuck's was a statutory or a common law nuisance, and the statement of decision discussed only the statutory claim. Perhaps for this reason, the Court of Appeal focused on the constitutionally infirm statutory claim, rather than the strong evidence that Chuck's was a common law public nuisance. [FN3] FN3 The bookstore's First Amendment-protected status does not shield it from California's common law public nuisance laws. (Arcarav. CloudBooks, Inc. (1986)478 U.S. 697,707 [92L.Ed.2d568,578,106 S.Ct. 3172] [plur. opn.]; accord, id. at p. 708 [92 L.Ed.2d at pp. 578-579] [cone. opn. of O'Connor, J.]; see also Groyned v. City of Rockford (1972) 408 U.S. 104 [33 L.Ed.2d 222,92 S.Ct. 2294]; cf. People ex rel. Arcara v. CloudBooks, Inc. (1986) 68 N.Y.2d 553 [510 N.Y.S.2d 844] [closing bookstore as nuisance impermissibly burdened freedom of expression under New York Constitution if lesser sanctions would end nuisance]; but see fn. 12, .post) Assuming arguendo that the trial court's judgment declaring Chuck's a public nuisance was rendered on the constitutionally infirm statutory ground, rather than on the sound basis of the Civil Code, nevertheless the trial court's decision was correct because there was sufficient evidence of a common law public nuisance to support it. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [101 Cal.Rptr. 568, 496 P.2d 480].) The judgment should therefore have been sustained, for a reviewing court must sustain a judgment if the result was correct, no matter that the trial court gave die wrong legal reason for its decision. (International etc. Workers v. Landowitz (1942) 20 Cal.2d 418,423 [126 P.2d 609] [even if court erred in its analysis of ordinance's constitutionality, judgment must be sustained because it was correct on other grounds].) Therefore the majority opinion is correct that the Court of Appeal's judgment must be reversed. Alas, in tiieir eagerness to comment on the constitutionality of the ordinance- in actuality not at issue-the majority ignore the common law nuisance claim. Thus in my view their discussion becomes purely advisory. It is axiomatic that we may not address constitutional questions when there is another ground on which to reach a decision. Such is the rule we have previously imposed on ourselves. (Amador Valley Joint Union HighSch. Dist. v. State Ed. of Equalization (1978) 22 Cal.3d 208, 233 [149 Cal.Rptr. 239, 583 P.2d 1281] [stating general rule]; People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000].) It is also part of the self- discipline of the United States Supreme Court, which calls it >a " 'fundamental rule of judicial restraint.' " (Jean v. Nelson (1985) 472 U.S. 846, 854 [86 L.Ed.2d 664, 670-671, 105 S.Ct. 2992].) The federal high court has *854 commanded all federal courts to follow the rule. (Ibid.) And it is a principle of decisionmaking to which the appellate courts of every other state in the United States subscribe. [FN4] Finally, a restrained view of a reviewing court's role would ascribe no importance to a party's desire to resolve the case on constitutional grounds or lower courts' failure to address die common law claim. (See United States v. Locke (1985) 471 U.S. 84, 92 [85 L.Ed.2d64,74,105 S.Ct. 1785]; United States v. C.I.O. (1948) 335 U.S. 106,110 [92 L.Ed.2d 1849,1855,685 S.Ct. 1349]; Troy State University v. Dickey (5th Cir. 1968) 402 F.2d 515,516.) *8S5 dictum, unnecessary to the judgment. (Bakke v. St. Thomas Public Sch. Dist. No. 43 (N.D. 1984) 359 N.W.2d 117, 120.) FN4 (Love v. Fulford (Ala. 1983) 442 So.2d 29,33; Perry v. State (Alaska 1967) 429 P.2d 249,252; State v. Church(l913) 109 Ariz. 39 [504 P.2d 940, 942] [usual rule]; Bell v. Bell (1971) 249 Ark. 959 [462 S.W.2d 837, 840]; Upset v. Davis (1949) 119 Colo. 335 [203 P.2d 730, 731]; City of Hartford v. Powers (1981) 183 Conn. 76 [438 A.2d 824, 828]; Agostini v. Colonial Trust Co. (1945) 28 DeLCh. 360 [44 A.2d 21, 22, m. 1]; State v. Page 14 Tsavaris(Fla. 1981)394 So.2d418,421-422; Farmer v. State (1971) 228 Ga. 225 [184 S.E.2d 647, 648]; Doe v. Roe (1984) 67 Hawaii 63 [677 P.2d 468, 471]; Poesy v. Bunney (1977) 98 Idaho 258 [561 P.2d 400, 406]; Haughton v. Haughton (1979) 76111.2d 439 [394 N.E.2d 385, 389]; Board of Com'rs v. Kokomo City Plan Com'n (1975) 263 Ind. 282 [330 N.E.2d 92,96]; In Interest of Chad (Iowa 1982) 318 N.W.2d 213, 216, fii. 2; State ex rel. Fatzer v. Barnes (1951) 171 Kan. 491 [233 P.2d 724,726]; Preston v. Clements (CtApp. 1950) 313 Ky. 479 [232 S.W.2d 85, 88]; Benson & Gold Chev. v. La Motor Veh. Com'n (La. 1981) 403 So.2d 13, 23; State v. Bassford(Ue. 1982) 440 A.2d 1059, 1061; Com'r of Labor and Industry v. Fitzwater (CtApp. 1977) 280 Md. 14 [371 A.2d 137, 140]; Com. v. Loretta (1982) 386 Mass. 794 [438 N.E.2d 56, 59]; Snyder v. Charlotte P. School Dist., Eaton Cty. (1984) 421 Mich. 517 [365 N.W.2d 151, 158]; Complaint Concerning Winton (Minn. 1984) 350 N. W.2d 337, 343, fa. 9; Kron v. Van Cleave (Miss. 1976) 339 So.2d 559,563; State ex rel. Union Elec. v. Pub. Serv. Com'n (Mo. 1985) 687 S.W.2d 162, 165 & fii. 4; Board of Com 'rs of Flathead County v. Eleventh Judicial Dist. Court (1979) 182 Mont. 493 [597 P.2d 728, 731]; State, Department of Motor Vehicles v. Lessert (1972) 188 Neb. 243 [196 N.W.2d 166, 169]; Spears v. Spears (1979) 95 Nev. 416 [596 P.2d 210, 212]; State v. Hodgkiss (1989) 132 N.H. 376 [565 A.2d 1059,1061]; Donadiov. Cunningham (1971) 58 N.J. 309 [277 A.2d 375, 384]; Property Tax Dept. v. Molycorp., Inc. (1976) 89 N.M. 603 [555 P.2d 903, 905-906]; Peters v. New York City Housing Authority (1954) 307N.Y. 519 [121. N.E.2d529,531]; WilUamsv. Williams(1980) 299 N.C. 174 [261 S.E.2d849,859];M/r/ev. Cavalier County (1938) 68 N.D. 242 [278 N. W. 243,246]; Greenhills Home Own. Corp. v. Village of Greenhills (1966) 5 Ohio St.2d 207 [215 N.E.2d403,407]; Schwartz v. Diehl (Okla. 1977) 568 P.2d 280, 283; State v. House (1985) 299 Ore. 78 [698 P.2d 951, 952]; Ballon v. State Ethics Commission (1981)496 Pa. 127 [436 A.2d 186,187 & fa. 2]; Town ofBarrington v. Blake (R.I. 1987) 532 A.2d 955; Floyd v. Thornton (1951) 220 S.C. 414 [68 S.E.2d 334, 339] [general rule]; State v. Big Head (S.D. 1985) 363 N.W.2d 556, 559; Watts v. Memphis Transit Management Co. (1971) 224 Tenn. 721 [462 S.W.2d 495, 498]; Courtney v. State (Tex.Ct.App. 1982) 639 S.W.2d 16, 17; Goodsel v. Department of Business Regulation (Utah 1974) 523 P.2d 1230,1232; Watkinsv. Ford(\9\«) 123 Va. 268 [96 S.E. 193,194]; State v. Clarke (1985) 145 Vt. 547 [496 A.2d 164, 167]; Tommy P. v. Board of County Com'rs (1982) 97 Wn.2d 385 [645 P.2d 697, 700]; Priester v. Hawkins (1981) 168 W.Va. 569 [285 S.E.2d396,398]; Labor & Farm Party v. Elections Bd. ofWis. (1984) 117 Wis.2d 351 [344 N. W.2d 177, 179]; Stambaugh v. State (Wyo. 1977) 566 P.2d 993, 996.) II As indicated above, the constitutional issue should be of no precedential importance. But because the majority opinion contains a gratuitous commentary on the constitutionality of the National City ordinance, I offer my own views on the subject. The record establishes conclusively that as applied to a sexually oriented business the National City ordinance cannot pass constitutional muster. City ofRenton v. Playtime Theatres, Inc. (1986) 475 U.S. 41 [89 L.Ed.2d 29, 106 S.Ct. 925] (Renton), the leading case in this area, [FN5] held that an ordinance that regulates sexually oriented but First Amendment-protected establishments must provide for alternative avenues of communication, and that these avenues must be reasonable. (Id. at p. 50 [89 L.Ed.2d at pp. 39-40].) Moreover, the burden lies with the government to show that the reasonable alternatives exist. (Ibid.; see also Playtime Theaters, Inc. v. City of Renton (9th Cir. 1984) 748 F.2d 527, 538.) Though Renton upheld that city's dispersal ordinance, it made clear, in line with its general statement at page 50 of 475 U.S. [89 L.Ed.2d at pages 39- 40], that the First Amendment requires a city to "refrain from effectively denying ... a reasonable opportunity to open and operate an adult theater within the city...." (Id. at p. 54 [89 L.Ed.2d at p. 42], italics added.) FN5 The majority opinion refers both to Renton and to Young v. American Mini Theatres, Inc. (\ 976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440] as landmark cases. But Young was a plurality opinion, and the high court recently disparaged it (R.A. V. v. City of St. Paul (1992) 505 U.S. , [120 L.Ed.2d 305, 322, 112 S.Ct. 2538].) Also, in diametrical contrast to this case, Young considered a dispersal ordinance that left many locations available. (427 U.S. at pp. Page 15 71-72, fa. 35 [49 L.Ed.2d at p. 327].) For these reasons, I shall concentrate on Renton as the significant United States Supreme Court authority. With these principles in mind, let us examine in greater detail the facts of this case as revealed at trial. The city's planning director testified that the distance requirements, taken by themselves, imposed a de facto ban, denying any opportunity-much less a reasonable one-for Chuck's to operate in National City. Because such a ban is patently unconstitutional, the city also purported to give sexually oriented businesses the opportunity to locate in an unobtrusive mall location. But as the record reveals, the city's exception is meaningless-the opportunity it provides is purely chimerical. *856 The record discloses that there were only three existing locations that could fulfill the mall requirements: the Plaza Bonita, Sweetwater Town & Country, and South Bay Plaza shopping centers. A witness for defendant, Tony Solis, testified that none of the three shopping centers would lease to an adult bookstore. At South Bay Plaza the leasing agent told him that the center would not rent to a business like Chuck's. At Town & Country he found out from realtors that an existing lease to Circuit City specified either that Circuit City was forbidden to sublet to an adult bookstore or that the mall was forbidden to lease any space to such a business. At the third and final possible location, Plaza Bonita, the character of the mall was apparently sufficiently genteel that Solis did not even inquire about the possibility of entering into a lease, but merely surveyed the site and took photographs of existing businesses. In sum, no existing site was available to Chuck's, a fact that led to the trial court's somewhat rhetorical remark to counsel, "Is there any question in your mind that not in a million years would Plaza Bonita, or T&C, or South Bay Plaza rent to Mr. Wiener [defendant] ...?" [FN6] entertainment businesses? "A. That's correct. They ordinarily wouldn't rent. "Q. Would not rent? "A. Would not rent to an adult bookstore. "Q. And is that generally known by people who are in the commercial real estate business? "A. Well, if you don't know it, you'll soon find out" The unavailability of the city's entire commercial area, including the three enclosed malls, left only the possibility of new construction that would fulfill the city's concealment requirements. In that regard, defendant's expert witness Clifford Beck-a redevelopment consultant with 40 years' construction experience in shopping centers and an expert in mall development-testified it would cost $6.5 million to build a small inward-facing mall that would meet the requirements. [FN7] More significant yet was Beck's uncontradicted testimony that in National City it would require two to five years *857 merely to assemble the property-from thirty different landowners-and financing needed to build the most uncomplicated and minimally sized mall that would meet the city's rules. FN7 The majority opinion indirectly acknowledges this testimony, but then states that "no direct evidence was presented regarding the economic viability of such an enterprise, or the ability of respondents to undertake such development." (Maj. opn., ante, p. 838.) This conclusion implies that the burden lies on the bookseller, not the city, to show that the ordinance does not offend the First Amendment. The law, however, is otherwise. (Morscott, Inc. v. City of Cleveland (N.D. Ohio 1990) 781 F.Supp. 500, 503; World Wide Video v. City ofTukwila (1991) 117 Wn.2d 382, 389-390 [816 P.2d 18, 21]; see also Renton, supra, 475 U.S. at p. 50 [89 L.Ed.2d at p. 39].) FN6 At times the witnesses seemed bemused or incredulous at the kinds of questions they were being asked, because the shopping centers' unwillingness to rent to an adult bookstore seemed self-evident to them. Solis testified: "Q. In your experience in the commercial real estate business, is it expected that retail shopping centers such as the ones I've mentioned would not rent to adult In sum, defendant proved that the city had effectively denied him "a reasonable opportunity to open and operate an adult [business] ...." (Renton, supra, 475 U.S. at p. 54 [89 L.Ed.2d at p. 42].) [FN8] To reach any other conclusion is to ignore commercial reality as well as the First Amendment's command. "There can be no doubt that bookselling is a constitutionally protected activity or that closing a bookstore for a year may have a substantial impact on that activity." (People ex rel. Arcara v. Cloud Books, Inc., supra, 68 N.Y.2d 553, Page 16 558 [510 N.Y.S.2d 844, 847] [interpreting New York Constitution].) FN8 There was one other possibility for relocation: the addition, to an existing strip mall of the type ubiquitous in southern California, of an inward-facing adult bookstore. Ironically, the city established through defendant's witness Beck that this too was impossible: the loss of parking space would make the entire mall uneconomical and might violate zoning laws, and the existing tenants would "beef like mad" about the obstruction of their all-important exposure to the street. In sum, such a modification would not be feasible. Relying on Renton, supra, 475 U.S. 41, the majority opinion implies that defendant's inability to locate his business anywhere in National City does not violate the First Amendment because the only impediments to doing so are economic. (Maj. opn., ante, p. 848 ["The Constitution does not saddle municipalities with the task of ensuring either the popularity or economic success of adult businesses."].) That statement betrays a fundamental misunderstanding ofRenton's teaching. The Ninth Circuit explained that the Renton ordinance set aside 520 acres on which an adult bookstore could be located, but noted that the district court had found that "a substantial part" of the 520 acres was occupied by existing businesses or industrial facilities not easily adapted-if adaptable at ail-to an adult bookstore. (Playtime Theaters, Inc. v. City of Renton, supra, 748 F.2d 527, 534.) The high court rejected the Ninth Circuit's view that these impediments amounted to a substantial restriction on speech. The court stated: "That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. ... [W]e have never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices." (Renton, supra, 475 U.S. at p. 54 [89 L.Ed.2d at p. 42], italics added.) But the Renton ordinance did not limit the location of adult bookstores to specific physical facilities, as does the ordinance at bench: it merely specified certain distance requirements. *&58(Renton, supra, 475 U.S. at p. 43 [89 L.Ed.2d at p. 35]; see also Playtime Theaters, Inc. v. City of Renton, supra, 748 F.2d at pp. 529-530.) Within the 520 acres not occupied by the incompatible existing facilities, an adult bookstore owner was free to build or buy a small mom- and-pop store, for example, and there operate the book business. Renton's ordinance, in sum, provided for " '[a]mple, accessible real estate.1" (475 U.S. at p. 53 [89 L.Ed.2d at p. 41].) The United States Supreme Court was declaring only that the city need not locate economically advantageous sites for an adult bookstore, any more than it need do so for a Shakespearean festival, an art museum, a symphony hall, or a repertory movie theater. That is not the situation before us. The city conceded the distance rules ban adult bookstores. The record reveals the alternatives to be purely illusory. Alas, those facts do not appear to perturb the majority. If the law's majestic equality can forbid rich and poor alike to sleep under bridges, [FN9] then apparently in the majority's view the law may with equally lofty impartiality permit an adult bookstore to locate anywhere available to Saks Fifth Avenue. Renton, however, does not countenance such prohibitions disguised as mere restrictions: immediately after the statement that the law does not require cities to guarantee sites at bargain prices, the court held that a city must "refrain from effectively denying ... a reasonable opportunity to open and operate an adult theater within the city...." (475 U.S. at p. 54 [89 L.Ed.2d at p. 42], italics added)-an opportunity to obtain" '[a]mple, accessible real estate' " (Id at p. 53 [89 L.Ed.2d at p. 41], italics added). [FN10] FN9 Anatole France, Le Lys Rouge (as printed by Calmann-Levy, Editeurs (1918)), chapter 7, page 118. FN10 See also Walnut Properties, Inc. v. City ofWhittier (1988) 861 F.2d 1102, in which the Ninth Circuit held unconstitutional a city ordinance that was more generous than is National City's in that it would at least allow a handful of adult businesses to operate (see particularly pp. 1107-1109). The court concluded, "To hold... that there are adequate alternatives available for expression of this sort would make a mockery of First Amendment protections and would render meaningless the Supreme Court's admonition that an ordinance must not 'effectively den[y] ... a reasonable opportunity to open and operate an adult theater within the city.' Renton, 475 U.S. at 53-54 [89 L.Ed.2d at pp. 41-42], 106 S.Ct. at 932." (Id at p. 1109.) This court's recent decision in People v. Superior Court (Lucero) (1989) 49 Cal.3d 14 [259 CaLRptr. 740, 774 P.2d 769, A.L.R.Sth Page 17 3346] adds nothing to the majority's constitutional surmises. The opinion only briefly alludes to the economic-impact discussion in Renton and does not contravene my discussion of that issue here. (See 49 Cal.3datp.25,m.6.) The complete cynicism of National City's ordinance is easily exposed. For the ordinance permits adult bookstores to locate precisely where the values the ordinance is ostensibly designed to protect-what the majority opinion refers to as "the moral climate of the community as a whole" (maj. opn., ante, p. 846) -are entirely vulnerable. A family- oriented shopping mall, *859 with small children wandering about and adolescents congregating after school, would seem to be the last place the city would prefer an adult bookstore to locate, even if city officials truly believed the mall owner would permit it. In conclusion, the record shows National City's ordinance to be in effect a complete proscription of First Amendment-protected adult businesses. The bookstore cannot locate anywhere now, and it would take several years for its owners to be able to build an entire commercial mall, assuming it is feasible and they can afford to do so. Therefore, under the First Amendment as interpreted in Renton, the ordinance cannot stand. [FN11] FN11 Justice Baxter's own reference to the third witness's testimony in footnote 1 of his concurring opinion, ante, makes unpersuasive his statement that the neighbors did not establish an abatable common law nuisance as a matter of law. But if he is correct on this point, then Renton, supra, 475 U.S. 41, applies squarely; and without state law complications there can be no obstacle to the United States Supreme Court hearing the case and correcting the majority opinion's faulty constitutional reasoning. Moreover, I find irrelevant Justice Baxter's statement that there was no evidence a clean, well-maintained bookstore would be unable to acquire space in a mall. He fails to consider that the burden is on the city to show that reasonable alternative avenues of communication exist. The city offered no evidence that a mall would lease space to an adult bookstore. more than 100 years old. No doubt. I must add that the First Amendment is also venerable, it being the foundation of a free society. (See generally my concurring and dissenting opinion in People v. Superior Court (Lucero), supra, 49 Cal.3d at pp. 28- 34.) The judgment of the Court of Appeal should be reversed on the basis of common law public nuisance. [FN12] The balance of the majority opinion cannot be supported. FN12 In stating that the Court of Appeal's judgment must be reversed, I do not mean to sanction the use of the Civil Code's restatement of the common law of nuisance as a pretext for ridding a community of First Amendment- protected activity. The federal high court has also cautioned that it would take a dim view of any such action. (Arcara v. Cloud Books, Inc., supra, 478 U.S. 697, 707, fh. 4 [92 L.Ed.2d 568, 578]; accord, id. at p. 708 [92 L.Ed.2d at pp. 578-579] [cone. opn. of O'Connor, J.].) There is no such risk here, however: Chuck's was proven to be a common law public nuisance and the city's action was not pretextual in that regard. Kennard, J., concurred. Appellant's petition for a rehearing was denied January 21, 1993, and the opinion was modified to read as printed above. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted. *860 Cal. 1992. City of National City v. Wiener END OF DOCUMENT III National City is said to be a venerable municipality 16 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Pagel Supreme Court of the United States CITY OF RENTON, et al., Appellants v. PLAYTIME THEATRES, INC., et al. No. 84-1360. Argued Nov. 12, 1985. Decided Feb. 25,1986. Rehearing Denied April 21, 1986. See 475 U.S. 1132, 106 S.Ct. 1663. Suit was brought challenging the constitutionality of a zoning ordinance which prohibited adult motion picture theaters from locating within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school. The United States District Court for the Western District of Washington ruled in favor of the city. The Court of Appeals for the Ninth Circuit, 748 F.2d 527, reversed and remanded for reconsideration, and the city appealed. The Supreme Court, Justice Rehnquist, held that the ordinance was a valid governmental response to the serious problems created by adult theaters and satisfied the dictates of the First Amendment. Reversed. Justice Blackmun concurred in the result. Justice Brennan filed a dissenting opinion in which Justice Marshall joined. West Headnotes [1] Constitutional Law €=>90.4(4) 92k90.4(4) Most Cited Cases City ordinance that prohibited adult motion picture theaters from locating from within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school was properly analyzed as a form of time, place and manner regulation of speech. U.S.C.A. ConstAmend. 1. [2] Constitutional Law €=^90.4(4) 92k90.4(4) Most Cited Cases A zoning ordinance that prohibited adult motion picture theaters from locating within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school was a valid governmental response to the serious problems created by adult theaters and satisfied the dictates of the First Amendment. U.S.C.A. ConstAmend. 1. [3] Constitutional Law €=>90.4(4) 92k90.4(4) Most Cited Cases (Formerly 92k90.1(4)) The First Amendment does not require a city, before enacting an adult theater zoning ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever the evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. U.S.C.A. ConstAmend. 1. [4] Zoning and Planning C=»76 414k76 Most Cited Cases Cities may regulate adult theaters by dispersing them or by effectively concentrating them. *41 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, 287, 50 L.Ed. 499. Respondents purchased two theaters in Renton, Washington, with the intention of exhibiting adult films and, at about the same time, filed suit in Federal District Court, seeking injunctive relief and a declaratory judgment that the First and Fourteenth Amendments were violated by a city ordinance that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. The District Court ultimately entered summary judgment in the city's favor, holding that the ordinance did not violate the First Amendment. The Court of Appeals reversed, holding that the ordinance constituted a substantial restriction on First Amendment interests, and remanded the case for reconsideration as to whether the city had Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 2 substantial governmental interests to support the ordinance. Held: The ordinance is a valid governmental response to the serious problems created by adult theaters and satisfies the dictates of the First Amendment. Cf. **925 Youngv. AmericanMini Theatres, Inc., 427 U.S. 50,96 S.Ct 2440, 49 L.Ed.2d 310. Pp. 928-933. (a) Since the ordinance does not ban adult theaters altogether, it is properly analyzed as a form of time, place, and manner regulation. "Content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. Pp. 928-929. (b) The District Court found that the Renton City Council's "predominate" concerns were with the secondary effects of adult theaters on the surrounding community, not with the content of adult films themselves. This finding is more than adequate to establish that the city's pursuit of its zoning interests was unrelated to the suppression of free expression, and thus the ordinance is a "content-neutral" speech regulation. Pp. 928-930. (c) The Renton ordinance is designed to serve a substantial governmental interest while allowing for reasonable alternative avenues of communication. A city's interest in attempting to preserve the quality of urban life, as here, must be accorded high respect. Although the ordinance was enacted without the benefit of studies specifically relating to *42 Renton's particular problems, Renton was entitled to rely on the experiences of, and studies produced by, the nearby city of Seattle and other cities. Nor was there any constitutional defect hi the method chosen by Renton to further its substantial interests. Cities may regulate adult theaters by dispersing them, or by effectively concentrating them, as in Renton. Moreover, the ordinance is not "underinclusive" for failing to regulate other kinds of adult businesses, since there was no evidence that, at the time the ordinance was enacted, any other adult business was located in, or was contemplating moving into, Renton. Pp. 930-932. (d) As required by the First Amendment, the ordinance allows for reasonable alternative avenues of communication. Although respondents argue that in general there are no "commercially viable" adult theater sites within the limited area of land left open for such theaters by the ordinance, the fact that respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a violation of the First Amendment, which does not compel the Government to ensure that adult theaters, or any other kinds of speech-related businesses, will be able to obtain sites at bargain prices. P. 932. 748 F.2d 527 (CA9 1984), reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., concurred in the result. BRENNAN, J., filed a dissenting opinion, hi which MARSHALL, J., joined, post, p. —. **926 E. Barrett Prettyman, Jr., arguedthe cause for appellants. With him on the briefs were David W. Burgett, Lawrence J. Warren, Daniel Kellogg, MarkE. Barber, and Zanetta L. Fontes. Jack R. Burns argued the cause for appellees. With him on the briefs was Robert E. Smith. * * Briefs of amid curiae urging reversal were filed for Jackson County, Missouri, by Russell D. Jacobson; for the Freedom Council Foundation by Wendell R. Bird and Robert K. Skolrood; for the National Institute of Municipal Law Officers by George Agnost, Roy D. Bates, Benjamin L. Brown, J. Lamar Shelley, John W. Witt, Roger F. Cutler, Robert J. Alfton, James K. Baker, Barbara Mather, James D. Montgomery, Clifford D. Pierce, Jr., William H. Taube, William I. Thornton, Jr., and Charles S. Rhyne; and for the National League of Cities et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Block, and Lawrence R. Velvel. Briefs of amid curiae urging affirmance were filed for the American Civil Liberties Union et al. by David Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) PageS Utevsky, Jack D. Novik, and Burt Neuborne; and for the American Booksellers Association, Inc., et al. by Michael A. Bamberger. Eric M. Rubin and Walter E. Diercks filed a brief for the Outdoor Advertising Association of America, Inc., et al. as amid curiae. *43 Justice REHNQUIST delivered the opinion of the Court. This case involves a constitutional challenge to a zoning ordinance, enacted by appellant city of Renton, Washington, that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Appellees, Playtime Theatres, Inc., and Sea-First Properties, Inc., filed an action in the United States District Court for the Western District of Washington seeking a declaratory judgment that the Renton ordinance violated the First and Fourteenth Amendments and a permanent injunction against its enforcement. The District Court ruled in favor of Renton and denied the permanent injunction, but the Court of Appeals for the Ninth Circuit reversed and remanded for reconsideration. 748 F.2d 527 (1984). We noted probable jurisdiction, **927471 U.S. 1013, 105 S.Ct. 2015, 85 L.Ed.2d 297 (1985), and now reverse the judgment of the Ninth Circuit. [FN1 ] FN1. This appeal was taken under 28 U.S.C. § 1254(2), which provides this Court with appellate jurisdiction at the behest of a party relying on a state statute or local ordinance held unconstitutional by a court of appeals. As we have previously noted, there is some question whether jurisdiction under § 1254(2) is available to review a nonfinal judgment. See South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439(1956); Slakerv. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258 (1929). But see Chicago v. Atchison, T. & S.F. R. Co., 357 U.S. 77, 82-83, 78 S.Ct. 1063, 1066-1067, 2 L.Ed.2d 1174 (1958). The present appeal seeks review of a judgment remanding the case to the District Court. We need not resolve whether this appeal is proper under § 1254(2), however, because in any event we have certiorari jurisdiction under 28 U.S.C. § 2103. As we have previously done in equivalent situations, see El Paso v. Simmons, 379 U.S. 497, 502-503, 85 S.Ct. 577,580-581,13L.Ed.2d446(1965); Doran v. Salem Inn, Inc., 422 U.S. 922,927,95 S.Ct. 2561, 2565, 45 L.Ed.2d 648 (1975), we dismiss the appeal and, treating the papers as a petition for certiorari, grant the writ of certiorari. Henceforth, we shall refer to the parties as "petitioners" and "respondents." *44 In May 1980, the Mayor of Renton, a city of approximately 32,000 people located just south of Seattle, suggested to the Renton City Council that it consider the advisability of enacting zoning legislation dealing with adult entertainment uses. No such uses existed in the city at that time. Upon the Mayor's suggestion, the City Council referred the matter to the city's Planning and Development Committee. The Committee 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. The City Council, meanwhile, adopted Resolution No. 2368, which imposed a moratorium on the licensing of" any business ... which ... has as its primary purpose the selling, renting or showing of sexually explicit materials." App. 43. The resolution contained a clause explaining that such businesses "would have a severe impact upon surrounding businesses and residences." Id., at 42. In April 1981, acting on the basis of the Planning and Development Committee's recommendation, the City Council enacted Ordinance No. 3526. The ordinance prohibited any "adult motion picture theater" from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school. App. to Juris. Statement 79a. The term "adult motion picture theater" was defined as "[a]n enclosed building used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 4 characterized] by an emphasis on matter depicting, describing or relating to 'specified sexual activities' or 'specified anatomical areas' ... for observation by patrons therein." Id., at 78a. *45 In early 1982, respondents acquired two existing theaters in downtown Renton, with the intention of using them to exhibit feature-length adult films. The theaters were located within the area proscribed by Ordinance No. 3526. At about the same time, respondents filed the previously mentioned lawsuit challenging the ordinance on First and Fourteenth Amendment grounds, and seeking declaratory and injunctive relief. While the federal action was pending, the City Council amended the ordinance in several respects, adding a statement of reasons for its enactment and reducing the minimum distance from any school to 1,000 feet. In November 1982, the Federal Magistrate to whom respondents' action had been referred recommended the entry of a preliminary injunction against enforcement of the Renton ordinance and the denial of Renton's motions to dismiss and for summary judgment. The District Court adopted the Magistrate's recommendations and entered the preliminary injunction, and respondents began showing adult films at their two theaters in Renton. Shortly thereafter, the parties agreed to submit the case for a final decision on whether a permanent**928 injunction should issue on the basis of the record as already developed. The District Court then vacated the preliminary injunction, denied respondents' requested permanent injunction, and entered summary judgment in favor of Renton. The court found that the Renton ordinance did not substantially restrict First Amendment interests, that Renton was not required to show specific adverse impact on Renton from the operation of adult theaters but could rely on the experiences of other cities, that the purposes of the ordinance were unrelated to the suppression of speech, and that the restrictions on speech imposed by the ordinance were no greater than necessary to further the governmental interests involved. Relying on Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440,49 L.Ed.2d 310 (1976), and United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the court held that the Renton ordinance did not violate the First Amendment. *46 The Court of Appeals for the Ninth Circuit reversed. The Court of Appeals first concluded, contrary to the finding of the District Court, that the Renton ordinance constituted a substantial restriction on First Amendment interests. Then, using the standards set forth in United States v. O 'Brien, supra, the Court of Appeals held that Renton had improperly relied on the experiences of other cities in lieu of evidence about the effects of adult theaters on Renton, that Renton had thus failed to establish adequately the existence of a substantial governmental interest in support of its ordinance, and that in any event Renton's asserted interests had not been shown to be unrelated to the suppression of expression. The Court of Appeals remanded the case to the District Court for reconsideration of Renton's asserted interests. In our view, the resolution of this case is largely dictated by our decision hi Young v. American Mini Theatres, Inc., supra. There, although five Members of the Court did not agree on a single rationale for the decision, we held that the city of Detroit's zoning ordinance, which prohibited locating an adult theater within 1,000 feet of any two other "regulated uses" or within 500 feet of any residential zone, did not violate the First and Fourteenth Amendments. Id., 427 U.S., at 72-73, 96 S.Ct., at 2453 (plurality opinion of STEVENS, J., joined by BURGER, C.J., and WHITE and REHNQUIST, JJ.); id., at 84, 96 S.Ct., at 2459 (POWELL, J., concurring). The Renton ordinance, like the one in American Mini Theatres, does not ban adult theaters altogether, but merely provides that such theaters may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. The ordinance is therefore properly analyzed as a form of time, place, and manner regulation. Id., at 63, and n. 18, 96 S.Ct., at 2448 and n. 18; id., at 78-79, 96 S.Ct., at 2456 (POWELL, J., concurring). [1] Describing the ordinance as a time, place, and Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page5 manner regulation is, of course, only the first step in our inquiry. This Court has long held that regulations enacted for the *47 purpose of restraining speech on the basis of its content presumptively violate the First Amendment. See Carey v. Brown, 447 U.S. 455, 462-463, and n. 7, 100 S.Ct. 2286, 2291, and n. 7, 65 L.Ed.2d 263 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 98- 99, 92 S.Ct. 2286, 2289, 2291-2292, 33 L.Ed.2d 212 (1972). On the other hand, so-called "content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 807, 104 S.Ct. 2118,2130, 80 L.Ed.2d 772 (1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647-648, 101 S.Ct. 2559, 2563-2564, 69 L.Ed.2d 298 (1981). **929 At first glance, the Renton ordinance, like the ordinance in American Mini Theatres, does not appear to fit neatly into either the "content-based" or the "content-neutral" category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at "adult motion picture theatres," but rather at the secondary effects of such theaters on the surrounding community. The District Court found that the City Council's "predominate concerns" were with the secondary effects of adult theaters, and not with the content of adult films themselves. App. to Juris. Statement 3la (emphasis added). But the Court of Appeals, relying on its decision in Tovar v. Billmeyer, 721 F.2d 1260, 1266 (CA9 1983), held that this was not enough to sustain the ordinance. According to the Court of Appeals, if "a motivating factor " in enacting the ordinance was to restrict respondents' exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council's decision. 748 F.2d, at 537 (emphasis in original). This view of the law was rejected in United States v. O'Brien, 391 U.S., at 382- 386, 88 S.Ct., at 1681-1684, the very case that the Court of Appeals said it was applying: *48 "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.... "... What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork." Id, at 383-384, 88 S.Ct, at 1683. The District Court's finding as to "predominate" intent, left undisturbed by the Court of Appeals, is more than adequate to establish that the city's pursuit of its zoning interests here was unrelated to the suppression of free expression. The ordinance by its terms is designed to prevent crime, protect the city's retail trade, maintain property values, and generally "protec[t] and preservfe] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life," not to suppress the expression of unpopular views. See App. to Juris. Statement 90a. As Justice POWELL observed in American Mini Theatres, "[i]f [the city] had 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." 427 U.S., at 82, n. 4, 96 S.Ct., at 2458, n. 4. In short, the Renton ordinance is completely consistent with our definition of "content-neutral" speech regulations as those that" areyustified without reference to the content of the regulated speech." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771,96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976) (emphasis added); Community for Creative Non-Violence, supra, 468 U.S., at 293,104 S.Ct., at 3069; International Society for Krishna Consciousness, supra, 452 U.S., at 648, 101 S.Ct., at 2564. The ordinance does not contravene the fundamental principle that underlies our concern about "content-based" speech regulations: that "government Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160,12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 6 may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express *49 less favored or more controversial views." Mosley, supra, 408 U.S., at 95-96, 92 S.Ct., at 2289-2290. It was with this understanding in mind that, in American Mini Theatres, a majority of this Court decided that, at least with respect to businesses that purvey sexually explicit materials, [FN2] zoning ordinances designed**930 to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to "content-neutral" time, place, and manner regulations. Justice STEVENS, writing for the plurality, concluded that the city of Detroit was entitled to draw a distinction between adult theaters and other kinds of theaters "without violating the government's paramount obligation of neutrality in its regulation of protected communication," 427 U.S., at 70, 96 S.Ct., at 2452, noting that "[i]t is th [e] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of'offensive' speech," id, at 71, n. 34,96 S.Ct., at 2453, n. 34. Justice POWELL, in concurrence, elaborated: FN2. See American Mini Theatres, 427 U.S., at 70, 96 S.Ct., at 2452 (plurality opinion) ("[I]t is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate "[The] dissent misconceives the issue in this case by insisting that it involves an impermissible time, place, and manner restriction based on the content of expression. It involves nothing of the kind. We have here merely a decision by the city to treat certain movie theaters differently because they have markedly different effects upon their surroundings.... Moreover, even if this were a case involving a special governmental response to the content of one type of movie, it is possible that the result would be supported by a line of cases recognizing that the government can tailor its reaction to different types of speech according to the degree to which its special and overriding interests are implicated. *50 See, e.g., Tinker v. Des Moines School Dist., 393 U.S. 503, 509-511 {89 S.Ct. 733, 737-739, 21 L.Ed.2d 731] (1969); Procunier v. Martinez, 416 U.S. 396, 413-414 [94 S.Ct. 1800, 1811, 40 L.Ed.2d 224] (1974); Greer v. Spock, 424 U.S. 828, 842-844 [96 S.Ct. 1211, 1219-1220, 47 L.Ed.2d 505] (1976) (POWELL, J., concurring); cf. CSC v. Letter Carriers, 413 U.S. 548 [93 S.Ct. 2880, 37 L.Ed.2d 796] (1973)." Id., at 82, n. 6,96 S.Ct., at 2458, n. 6. [2] The appropriate inquiry hi this case, then, is whether the Renton ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. See Community for Creative Non-Violence, 468 U.S., at 293, 104 S.Ct., at 3069; International Society for Krishna Consciousness, 452 U.S., at 649, 654, 101 S.Ct., at 2564, 2567. It is clear that the ordinance meets such a standard. As a majority of this Court recognized in American Mini Theatres, a city s "interest in attempting to preserve the quality of urban life is one that must be accorded high respect." 427 U.S., at 71, 96 S.Ct., at 2453 (plurality opinion); see id., at 80, 96 S.Ct., at 2457 (POWELL, J., concurring) ("Nor is there doubt that the interests furthered by this ordinance are both important and substantial"). Exactly the same vital governmental interests are at stake here. The Court of Appeals ruled, however, that because the Renton ordinance was enacted without the benefit of studies specifically relating to "the particular problems or needs of Renton," the city's justifications for the ordinance were "conclusory and speculative." 748 F.2d, at 537. We think the Court of Appeals imposed on the city an unnecessarily rigid burden of proof. The record in this case reveals that Renton relied heavily on the experience of, and studies produced by, the city of Seattle. In Seattle, as in Renton, the adult theater zoning ordinance was aimed at preventing the secondary effects caused by the presence of even one such theater in a given neighborhood. See Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978). The opinion of the Supreme Court of Washington in Northend Cinema, which *51 was Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page? before the Renton City Council when it enacted the ordinance in question here, described Seattle's experience as follows: "The amendments to the City's zoning code which are at issue here are the **931 culmination of a long period of study and discussion of the problems of adult movie theaters in residential areas of the City.... [T]he City's Department of Community Development made a study of the need for zoning controls of adult theaters.... The study analyzed the City's zoning scheme, comprehensive plan, and land uses around existing adult motion picture theaters...." Id., at 711, 585P.2d,atll55. "[T]he [trial] court heard extensive testimony regarding the history and purpose of these ordinances. It heard expert testimony on the adverse effects of the presence of adult motion picture theaters on neighborhood children and community improvement efforts. The court's detailed findings, which include a finding that the location of adult theaters has a harmful effect on the area and contribute to neighborhood blight, are supported by substantial evidence in the record." Id, at 713, 585 P.2d, at 1156. "The record is replete with testimony regarding the effects of adult movie theater locations on residential neighborhoods." Id, at 719, 585 P.2d, at 1159. [3] We hold that Renton was entitled to rely on the experiences of Seattle and other cities, and in particular on the "detailed findings" summarized in the Washington Supreme Court's Northend Cinema opinion, 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 *52 problem that the city addresses. That was the case here. Nor is our holding affected by the fact that Seattle ultimately chose a different method of adult theater zoning than that chosen by Renton, since Seattle's choice of a different remedy to combat the secondary effects of adult theaters does not call into question either Seattle's identification of those secondary effects or the relevance of Seattle's experience to Renton. [4] We also find no constitutional defect in the method chosen by Renton to further its substantial interests. Cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton. "It is not our function to appraise the wisdom of [the city's] decision to require adult theaters to be separated rather than concentrated in the same areas.... [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." American Mini Theatres, 427 U.S., at 71, 96 S.Ct., at 2453 (plurality opinion). Moreover, the Renton ordinance is "narrowly tailored" to affect only that category of theaters shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad v. Mount Ephraim, 452 U.S. 61,101 S.Ct.2176,68L.Ed.2d671 (l9&l),andErznoznikv. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268,45 L.Ed.2d 125 (1975). Respondents contend that the Renton ordinance is "under-inclusive," in that it fails to regulate other kinds of adult businesses that are likely to produce secondary effects similar to those produced by adult theaters. On this record the contention must fail. There is no evidence that, at the time the Renton ordinance was enacted, any other adult business was located in, or was contemplating moving into, Renton. In fact, Resolution No. 2368, enacted in October 1980, states that "the City of Renton does not, at the present time, have any business whose primary purpose is the sale, rental, or showing of sexually explicit materials." App. 42. That Renton chose first to address the potential problems created *53 by one particular kind of adult business in no way suggests that the city has "singled out" adult theaters for discriminatory treatment. We simply have no basis on **932 this record for assuming that Renton will not, in the future, amend its ordinance to include other kinds of adult businesses that have been shown to produce the same kinds of secondary effects as adult theaters. See Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563 (1955). Finally, turning to the question whether the Renton Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29,54 USLW4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) PageS ordinance allows for reasonable alternative avenues of communication, we note that the ordinance leaves some 520 acres, or more than five percent of the entire land area of Renton, open to use as adult theater sites. The District Court found, and the Court of Appeals did not dispute the finding, that the 520 acres of land consists of "[a]mple, accessible real estate," including "acreage in all stages of development from raw land to developed, industrial, warehouse, office, and shopping space that is criss-crossed by freeways, highways, and roads." App. to Juris. Statement 28a. Respondents argue, however, that some of the land in question is already occupied by existing businesses, that "practically none" of the undeveloped land is currently for sale or lease, and that in general there are no "commercially viable" adult theater sites within the 520 acres left open by the Renton ordinance. Brief for Appellees 34-37. The Court of Appeals accepted these arguments, [FN3] concluded that *54 the 520 acres was not truly "available" land, and therefore held that the Renton ordinance "would result in a substantial restriction" on speech. 748 F.2d, at 534. FN3. The Court of Appeals' rejection of the District Court's findings on this issue may have stemmed in part from the belief, expressed elsewhere in the Court of Appeals' opinion, that, under Ease Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), appellate courts have a duty to review de novo all mixed findings of law and fact relevant to the application of First Amendment principles. See 748 F.2d 527, 535 (1984). We need not review the correctness of the Court of Appeals' interpretation of Base Corp., since we determine that, under any standard of review, the District Court's findings should not have been disturbed. We disagree with both the reasoning and the conclusion of the Court of Appeals. That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. And although we have cautioned against the enactment of zoning regulations that have "the effect of suppressing, or greatly restricting access to, lawful speech," American Mini Theatres, 427 U.S., at 71, n. 35,96 S.Ct, at 2453, n. 35 (plurality opinion), we have never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices. See id., at 78, 96 S.Ct., at 2456 (POWELL, J., concurring) ("The inquiry for First Amendment purposes is not concerned with economic impact"). In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement. In sum, we find that the Renton ordinance represents a valid governmental response to the "admittedly serious problems" created by adult theaters. See id, at 71,96 S.Ct., at 2453 (plurality opinion). Renton has not used "the power to zone as a pretext for suppressing expression," id., at 84,96 S.Ct., at 2459 (POWELL, J., concurring), but rather has sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas. This, after all, is the essence of zoning. Here, as in American Mini Theatres, the city has enacted a zoning ordinance that meets these goals while also satisfying the dictates of the *55 **933 First Amendment. [FN4] The judgment of the Court of Appeals is therefore FN4. Respondents argue, as an "alternative basis" for affirming the decision of the Court of Appeals, that the Renton ordinance violates their rights under the Equal Protection Clause of the Fourteenth Amendment. As should be apparent from our preceding discussion, respondents can fare no better under the Equal Protection Clause than under the First Amendment itself. See Young v. American Mini Theatres, Inc., 427 U.S., at 63-73, 96 S.Ct, at 2448-2454. Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 9 Respondents also argue that the Renton ordinance is unconstitutionally vague. More particularly, respondents challenge the ordinance's application to buildings "used" for presenting sexually explicit films, where the term "used" describes "a continuing course of conduct of exhibiting [sexually explicit films] in a manner which appeals to a prurient interest." App. to Juris. Statement 96a. We reject respondents' "vagueness" argument for the same reasons that led us to reject a similar challenge in American Mini Theatres, supra. There, the Detroit ordinance applied to theaters "used to present material distinguished or characterized by an emphasis on [sexually explicit matter]." Id, at 53, 96 S.Ct., at 2444. We held that "even if there may be some uncertainty about the effect of the ordinances on other litigants, they are unquestionably applicable to these respondents." Id, at 58-59, 96 S.Ct., at 2446. We also held that the Detroit ordinance created no "significant deterrent effect" that might justify invocation of the First Amendment "overbreadth" doctrine. Id, at 59- 61,96 S.Ct., at 2446-2448. Reversed. Justice BLACKMUN concurs in the result. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. Renton's zoning ordinance selectively imposes limitations on the location of a movie theater based exclusively on the content of the films shown there. The constitutionality of the ordinance is therefore not correctly analyzed under standards applied to content-neutral time, place, and manner restrictions. But even assuming that the ordinance may fairly be characterized as content neutral, it is plainly unconstitutional under the standards established by the decisions of this Court. Although the Court's analysis is limited to *56 cases involving "businesses that purvey sexually explicit materials," ante, at 929, and n. 2, and thus does not affect our holdings in cases involving state regulation of other kinds of speech, I dissent. I "[A] constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech." Consolidated Edison Co. v. Public Service Comm'n ofN.Y., 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980). The Court asserts that the ordinance is "aimed not at the content of the films shown at 'adult motion picture theatres,' but rather at the secondary effects of such theaters on the surrounding community," ante, at 929 (emphasis in original), and thus is simply a time, place, and manner regulation. [FN1] This analysis is misguided. FNI. The Court apparently finds comfort in the fact that the ordinance does not "deny use to those wishing to express less favored or more controversial views." Ante, at 929. However, content-based discrimination is not rendered "any less odious" because it distinguishes "among entire classes of ideas, rather than among points of view within a particular class." Lehman v. City of Shaker Heights, 418 U.S. 298, 316, 94 S.Ct. 2714, 2724,41 L.Ed.2d 770 (1974) (BRENNAN, J., dissenting); see also Consolidated Edison Co. v. Public Service Comm'n ofN.Y., 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980) ("The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic"). Moreover, the Court's conclusion that the restrictions imposed here were viewpoint neutral is patently flawed. "As a practical matter, the speech suppressed by restrictions such as those involved [here] will almost invariably carry an implicit, if not explicit, message in favor of more relaxed sexual mores. Such restrictions, in other words, have a potent viewpoint-differential Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160,12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 10 impact.... To treat such restrictions as viewpoint-neutral seems simply to ignore reality." Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U.Chi.L.Rev. 81,111-112(1978). The fact that adult movie theaters may cause harmful "secondary" land-use effects may arguably give Renton a compelling **934 reason to regulate such establishments; it does not mean, however, that such regulations are content neutral. *57 Because the ordinance imposes special restrictions on certain kinds of speech on the basis of content, I cannot simply accept, as the Court does, Renton's claim that the ordinance was not designed to suppress the content of adult movies. "[W]hen regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited 'merely because public officials disapprove the speaker's views.' " Consolidated Edison Co., supra, at 536, 100 S.Ct., at 2332 (quoting Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 325, 333, 95 L.Ed. 267 (1951) (Frankfurter, J., concurring in result)). "[Bjefore deferring to [Renton's] judgment, [we] must be convinced that the city is seriously and comprehensively addressing" secondary-land use effects associated with adult movie theaters. Metromedia, Inc. v. SanDiego, 453 U.S. 490,531,101 S.Ct. 2882,2904,69 L.Ed.2d 800 (1981) (BRENNAN, J., concurring in judgment). In this case, both the language of the ordinance and its dubious legislative history belie the Court's conclusion that "the city's pursuit of its zoning interests here was unrelated to the suppression of free expression." Ante, at 929. The ordinance discriminates on its face against certain forms of speech based on content. Movie theaters specializing in "adult motion pictures" may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Other motion picture theaters, and other forms of "adult entertainment," such as bars, massage parlors, and adult bookstores, are not subject to the same restrictions. This selective treatment strongly suggests that Renton was interested not in controlling the "secondary effects" associated with adult businesses, but in discriminating against adult theaters based on the content of the films they exhibit. The Court ignores this discriminatory treatment, declaring that Renton is free "to address the potential problems created by one particular kind of adult business," ante, at 931, and to amend the ordinance in the *58 future to include other adult enterprises. Ante, at 932 (citing Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563 (1955)). [FN2] However, because of the First Amendment interests at stake here, this one-step-at-a-time analysis is wholly inappropriate. FN2. The Court also explains that "[tjhere is no evidence that, at the time the Renton ordinance was enacted, any other adult business was located in, or was contemplating moving into, Renton." Ante, at 931. However, at the time the ordinance was enacted, there was no evidence that any adult movie theaters were located in, or considering moving to, Renton. Thus, there was no legitimate reason for the city to treat adult movie theaters differently from other adult businesses. "This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-465,99 L.Ed. 563 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression. '[AJbove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.' Police Dept. of Chicago v. Mosley, 408 U.S., at 95 [92 S.Ct., at 2290]." Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125 (1975). In this case, the city has not justified treating adult Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160,12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 11 movie theaters differently from other adult entertainment businesses. The ordinance's underinclusiveness is cogent evidence that it was aimed at the content of the films shown in adult movie theaters. **935 B Shortly after this lawsuit commenced, the Renton City Council amended the ordinance, adding a provision explaining that its intention in adopting the ordinance had been "to promote the City of Renton's great interest in protecting and preserving the quality of its neighborhoods, commercial districts, and the quality of urban life through effective land *59 use planning." App. to Juris. Statement 81 a. The amended ordinance also lists certain conclusory "findings" concerning adult entertainment land uses that the Council purportedly relied upon in adopting the ordinance. Id., at 81 a-86 a. The city points to these provisions as evidence that the ordinance was designed to control the secondary effects associated with adult movie theaters, rather than to suppress the content of the films they exhibit. However, the "legislative history" of the ordinance strongly suggests otherwise. Prior to the amendment, there was no indication that the ordinance was designed to address any "secondary effects" a single adult theater might create. In addition to the suspiciously coincidental timing of the amendment, many of the City Council's "findings" do not relate to legitimate land-use concerns. As the Court of Appeals observed, "[b]oth the magistrate and the district court recognized that many of the stated reasons for the ordinance were no more than expressions of dislike for the subject matter." 748 F.2d 527,537 (CA9 1984). [FN3] That some residents may be offended by the content of the films shown at adult movie theaters cannot form the basis for state regulation of speech. See Terminiellov. Chicago, 337 U.S. 1,69 S.Ct. 894, 93 L.Ed. 1131 (1949). FN3. For example, "finding" number 2 states that " [IJocation of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to, and causes a loss of sensitivity to the adverse effect of pornography upon children, established family relations, respect for marital relationship and for the sanctity of marriage relations of others, and the concept of non-aggressive, consensual sexual relations." App. to Juris. Statement 86a. "Finding" number 6 states that "[IJocation of adult land uses in close proximity to residential uses, churches, parks, and other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the relationship between spouses." Ibid. Some of the "findings" added by the City Council do relate to supposed "secondary effects" associated with adult movie *60 theaters. [FN4] However, the Court cannot, as it does, merely accept these post hoc statements at face value. " [T]he presumption of validity that traditionally attends a local government's exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment." Schadv. Mount Ephraim, 452 U.S. 61, 77, 101 S.Ct. 2176, 2187, 68 L.Ed.2d 671 (1981) (BLACKMUN, J., concurring). As the Court of Appeals concluded, "[t]he record presented by Renton to support its asserted interest in enacting the zoning ordinance is very thin." 748 F.2d, at 536. FN4. For example, "finding" number 12 states that "[IJocation of adult entertainment land uses in proximity to residential uses, churches, parks and other public facilities, and schools, may lead to increased levels of criminal activities, including prostitution, rape, incest and assaults in the vicinity of such adult entertainment land uses." Id., at 83a. The amended ordinance states that its "findings" summarize testimony received by the City Council at certain public hearings. While none of this testimony Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 12 was ever recorded or preserved, a city official reported that residents had objected to having adult movie theaters located in their community. However, the official was unable to recount any testimony as to how adult movie theaters would specifically affect the schools, churches, parks, or residences "protected" by the ordinance. See App. 190-192. The City Council conducted no studies, and heard no expert testimony, on how the protected uses would be affected by the presence of an adult movie theater, and never considered whether residents' concerns could be met by "restrictions **936 that are less intrusive on protected forms of expression." Schad, supra, 452 U.S., at 74, 101 S.Ct., at 2186. As a result, any "findings" regarding "secondary effects" caused by adult movie theaters, or the need to adopt specific locational requirements to combat such effects, were not "findings" at all, but purely speculative conclusions. Such "findings" were not such as are required to justify the burdens *61 the ordinance imposed upon constitutionally protected expression. The Court holds that Renton was entitled to rely on the experiences of cities like Detroit and Seattle, which had enacted special zoning regulations for adult entertainment businesses after studying the adverse effects caused by such establishments. However, even assuming that Renton was concerned with the same problems as Seattle and Detroit, it never actually reviewed any of the studies conducted by those cities. Renton had no basis for determining if any of the "findings" made by these cities were relevant to Renton's problems or needs. [FN5] Moreover, since Renton ultimately adopted zoning regulations different from either Detroit or Seattle, these "studies" provide no basis for assessing the effectiveness of the particular restrictions adopted under the ordinance. [FN6] Renton cannot merely rely on the general experiencesof *62 Seattle or Detroit, for it must "justify its ordinance in the context of Renton's problems—not Seattle's or Detroit's problems." 748 F.2d, at 536 (emphasis in original). FN5. As part of the amendment passed after this lawsuit commenced, the City Council added a statement that it had intended to rely on the Washington Supreme Court's opinion in Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978), cert, denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1979), which upheld Seattle's zoning regulations against constitutional attack. Again, despite the suspicious coincidental timing of the amendment, the Court holds that "Renton was entitled to rely... on the 'detailed findings' summarized in the ... Northend Cinema opinion." Ante, at 931. In Northend Cinema, the court noted that "[t]he record is replete with testimony regarding the effects of adult movie theater locations on residential neighborhoods." 90 Wash.2d, at 719, 585 P.2d, at 1159. The opinion however, does not explain the evidence it purports to summarize, and provides no basis for determining whether Seattle's experience is relevant to Renton's. FN6. As the Court of Appeals observed: "Although the Renton ordinance purports to copy Detroit's and Seattle's, it does not solve the same problem in the same manner. The Detroit ordinance was intended to disperse adult theaters throughout the city so that no one district would deteriorate due to a concentration of such theaters. The Seattle ordinance, by contrast, was intended to concentrate the theaters in one place so that the whole city would not bear the effects of them. The Renton Ordinance is allegedly aimed at protecting certain uses-schools, parks, churches and residential areas-from the perceived unfavorable effects of an adult theater." 748 F.2d, at 536 (emphasis in original). In sum, the circumstances here strongly suggest that the ordinance was designed to suppress expression, even that constitutionally protected, and thus was not to be analyzed as a content-neutral time, place, and manner restriction. The Court allows Renton to conceal its illicit motives, however, by reliance on the Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160,12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 13 fact that other communities adopted similar restrictions. The Court's approach largely immunizes such measures from judicial scrutiny, since a municipality can readily find other municipal ordinances to rely upon, thus always retrospectively justifying special zoning regulations for adult theaters. [FN7] Rather than speculate about Renton's motives for adopting such measures, our cases require the conclusion that the ordinance, like any other content-based restriction on speech, is constitutional "only if the [city] can show **937 that [it] is a precisely drawn means of serving a compelling [governmental] interest." Consolidated EdisonCo. v. Public Service Comm'n ofN.Y., 447U.S., at 540, 100 S.Ct., at 2334; see also Carey v. Brown, 447 U.S. 455,461-462,100 S.Ct. 2286,2290-2291,65 L.Ed.2d263 (1980); Police Department of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). Only this strict approach can insure that cities will not use their zoning powers as a pretext for suppressing constitutionally protected expression. FN7. As one commentator has noted: "[A]nyone with any knowledge of human nature should naturally assume that the decision to adopt almost any content-based restriction might have been affected by an antipathy on the part of at least some legislators to the ideas or information being suppressed. The logical assumption, in other words, is not that there is not improper motivation but, rather, because legislators are only human, that there is a substantial risk that an impermissible consideration has in fact colored the deliberative process." Stone, supra n. 1, at 106. *63 Applying this standard to the facts of this case, the ordinance is patently unconstitutional. Renton has not shown that locating adult movie theaters in proximity to its churches, schools, parks, and residences will necessarily result in undesirable "secondary effects," or that these problems could not be effectively addressed by less intrusive restrictions. II Even assuming that the ordinance should be treated like a content-neutral time, place, and manner restriction, I would still find it unconstitutional. "[Restrictions of this kind are valid provided ... that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069,82L.Ed.2d221 (1984); Heffronv. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648, 101 S.Ct. 2559,2564,69 L.Ed.2d 298 (1981). In applying this standard, the Court "fails to subject the alleged interests of the [city] to the degree of scrutiny required to ensure that expressive activity protected by the First Amendment remains free of unnecessary limitations." Community for Creative Non-Violence. 468 U.S., at 301, 104 S.Ct, at 3073 (MARSHALL, J., dissenting). The Court "evidently [and wrongly] assumes that the balance struck by [Renton] officials is deserving of deference so long as it does not appear to be tainted by content discrimination." Id, at 315, 104 S.Ct., at 3080. Under a proper application of the relevant standards, the ordinance is clearly unconstitutional. The Court finds that the ordinance was designed to further Renton's substantial interest in "presenting] the quality of urban life." Ante, at 930. As explained above, the record here is simply insufficient to support this assertion. The city made no showing as to how uses "protected" by the ordinance would be affected by the presence of an adult movie theater. Thus, the Renton ordinance is clearly distinguishable from *64 the Detroit zoning ordinance upheld in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440,49 L.Ed.2d 310 (1976). The Detroit ordinance, which was designed to disperse adult theaters throughout the city, was supported by the testimony of urban planners and real estate experts regarding the adverse effects of locating several such businesses in the same neighborhood. Id. at 55, 96 S.Ct., at 2445; see also Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 711, 585 P.2d 1153, 1154-1155 (1978), cert. Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 14 denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1979) (Seattle zoning ordinance was the "culmination of a long period of study and discussion"). Here, the Renton Council was aware only that some residents had complained about adult movie theaters, and that other localities had adopted special zoning restrictions for such establishments. These are not "facts" sufficient to justify the burdens the ordinance imposed upon constitutionally protected expression. B Finally, the ordinance is invalid because it does not provide for reasonable alternative avenues of communication. The District Court found that the ordinance left 520 acres in Renton available for adult theater sites, an area comprising about five **938 percent of the city. However, the Court of Appeals found that because much of this land was already occupied, "[l]imiting adult theater uses to these areas is a substantial restriction on speech." 748 F.2d, at 534. Many "available" sites are also largely unsuited for use by movie theaters. See App. 231, 241. Again, these facts serve to distinguish this case from American Mini Theaters, where there was no indication that the Detroit zoning ordinance seriously limited the locations available for adult businesses. See American Mini Theaters, supra, 427 U.S., at 71, n. 35, 96 S.Ct., at 2453 n. 35 (plurality opinion) ("The situation would be quite different if the ordinance had the effect of ... greatly restricting access to... lawful speech"); see also Basiardanesv. CityofGalveston, 682F.2d 1203,1214 (CAS 1982) (ordinance effectively banned adult theaters *65 by restricting them to " 'the most unattractive, inaccessible, and inconvenient areas of a city' "); Purple Onion, Inc. v. Jackson, 511 F.Supp. 1207, 1217 (ND Ga.1981) (proposed sites for adult entertainment uses were either "unavailable, unusable, or so inaccessible to the public that... they amount to no locations"). Despite the evidence in the record, the Court reasons that the fact "[t]hat respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation." Ante, at 932. However, respondents are not on equal footing with other prospective purchasers and lessees, but must conduct business under severe restrictions not imposed upon other establishments. The Court also argues that the First Amendment does not compel "the government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices." Ibid. However, respondents do not ask Renton to guarantee low-price sites for their businesses, but seek only a reasonable opportunity to operate adult theaters in the city. By denying them this opportunity, Renton can effectively ban a form of protected speech from its borders. The ordinance "greatly restricts] access to ... lawful speech," American Mini Theatres, supra, 427 U.S., at 71, n. 35, 96 S.Ct., at 2453, n. 35 (plurality opinion), and is plainly unconstitutional. 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29,54 USLW 4160, 12 Media L. Rep. 1721 Briefs and Other Related Documents (Back to top) • 1985 WL 669603 (Appellate Brief) Second Supplemental Brief of Appellees (Nov. 06, 1985) • 1985 WL 669601 (Appellate Brief) Supplemental Brief of Appellees (Oct. 30, 1985) • 1985 WL 669599 (Appellate Brief) Reply Brief of Appellants (Oct. 25, 1985) • 1985 WL 669613 (Appellate Brief) Brief of American Booksellers Association, Inc., Association of American Publishers, Inc., Council for Periodical Distributors Associations, International Periodical Distributors Association, Inc., National Association of College Stores, Inc., and th e Freedom to Read Foundation, as Amici Curiae, in Support of Appellees (Aug. 15,1985) • 1985 WL 669614 (Appellate Brief) Brief of the American Civil Liberties Union and the American Civil Liberties Union of Washington as Amici Curiae in Support of Appellees (Aug. 15,1985) • 1985 WL 669597 (Appellate Brief) Brief of Appellees Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 106 S.Ct. 925 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 4160, 12 Media L. Rep. 1721 (Cite as: 475 U.S. 41, 106 S.Ct. 925) Page 15 (Aug. 14, 1985) • 1985 WL 669612 (Appellate Brief) Brief of the Outdoor Advertising Association of America, Inc. and the American Advertising Federation as Amici Curiae in Support of Appellees (Jul. 15, 1985) • 1985 WL 669611 (Appellate Brief) Brief of the Freedom Council Foundation Amicus Curiae, in Support of Appellants (Jul. 03, 1985) • 1985 WL 669595 (Appellate Brief) Brief for Appellants (Jun. 28, 1985) • 1985 WL 669608 (Appellate Brief) Motion to File Brief Amicus Curiae and Brief Amicus Curiae of the National League of Cities, the National Association of Counties, the International City Management Association, the United States Conference of Mayors, the Council of State Governments , and the American Planning Association in Support of Appellants (Jun. 28, 1985) • 1985 WL 669609 (Appellate Brief) Brief Amicus Curiae of Jackson County, Missouri, hi Support of the Petitioners (Jun. 28, 1985) • 1985 WL 669610 (Appellate Brief) Motion for Leave to File, and Brief Amicus Curiae of the National Institute of Municipal Law Officers (Jun. 28, 1985) • 1985 WL 669605 (Appellate Brief) Brief of Amici Curiae City of Whittier, California and Other Joining California Cities in Support of Appellants' Jurisdictional Statement (Mar. 29, 1985) • 1985 WL 669607 (Appellate Brief) Motion to File Brief Amicus Curiae and Brief Amicus Curiae of the National League of Cities, the National Association of Counties, the International City Management Association, the United States Conference of Mayors, the Council of State Governments , and the American Planning Association in Support of a Plenary Hearing and Reversal of the Decision Below (Mar. 29, 1985) • 1985 WL 669592 (Appellate Brief) Reply Brief (Mar. 28, 1985) • 1985 WL 669604 (Appellate Brief) Brief of Amici Curiae Washington and Utah Attorneys General in Support of Appellants (Mar. 28,1985) Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 17 Pagel 167Cal.App.3dll69 213 CaLRptr. 143 (Cite as: 167 Cal.App.3d 1169) CITY OF VALLEJO, Plaintiff and Respondent, v. ADULT BOOKS et al., Defendants and Appellants. No. A021042. Court of Appeal, First District, Division 1, California. Apr 25, 1985. SUMMARY The trial court upheld the constitutionality of a city ordinance directing that no adult bookstores or adult theaters may be located within 500 feet of a residential zone, park, playground, library or school, or within 1000 feet of another such business, further providing that such businesses could only be located in given districts, and further defining such businesses as commercial establishments having 25 percent or more of its stock in visual representations of specified sexual activities or "other sexual conduct." (Superior Court of Solano County, No. VO2157, Michael L. Mclnnis, Judge.) The Court of Appeal affirmed. The court held that the owners of a business described by the ordinance had no standing to argue that the law was vague, since they had admitted (for purposes of testing the constitutional validity) that they met the definition of adult use set out in the ordinance. The court held that the use of the phrase "other sexual conduct" in defining establishments subject to the ordinance was not inherently vague, since examples of sexual conduct were specifically enumerated in the ordinance and since any remaining ambiguity could be readily clarified by a narrowing construction by the state courts. The court further held that the ordinance was not so pervasive in its constraints to violate the owners' right under U.S. Const, 1st Amend., of free expression. (Opinion by Newsom, J., with Holmdahl, J., concurring. Separate concurring opinion by Racanelli, P. J.) HEADNOTES Classified to California Digest of Official Reports (la, Ib) Constitutional Law § 21—Constitutionality of Legislation-- Raising Question of Constitutionality—Standing Essential to Raise *1170 Question—Vagueness. The owners and operators of a business of selling adult books and showing adult movies lacked standing to challenge, on grounds of vagueness, a city ordinance limiting the operation of adult bookstores and adult theaters in certain areas of the city where the owners had admitted that their business fell within the ordinance's definition as a commercial establishment having 25 per cent or more of its stock in visual representations of specified sexual activities or "other sexual excitement or conduct." Furthermore, in light of the enumeration of specific activities which made up the content of the visual representations used to define such establishments, the additional use of the phrase "or other sexual excitement or sexual conduct" was not inherently vague, and any remaining ambiguity could be readily clarified by a "narrowing construction" in the state courts without insuperable difficulty. (2) Constitutional Law § 21—Constitutionality of Legislation — Raising Question of Constitutionality—Standing Essential to Raise Question—Vagueness. A litigant whose conduct is precisely proscribed by a statute has no standing to argue that the law is vague as applied to others. Thus, one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. However, an exception is recognized if the statute may cause persons not before the court to refrain from engaging in constitutionally protected free speech or expression. This exception applies only if the statute's deterrent effect on legitimate expression is both real and substantial and if the statute is not readily subject to a narrowing construction by the state courts. (3) Constitutional Law § 21-Constitutionality of Legislation — Raising Question of Constitutionality—Standing Essential to Raise Question—First Amendment Rights. Owners and operators of a business of selling adult books and showing adult movies had standing to challenge, on U.S. Const., 1st Amend, grounds, the impact of a city ordinance limiting the operation of adult bookstores and theaters in certain areas of the city Copr. © Bancroft-Whitney and West Group 1998 Page 2 where the owners claimed that the ordinance unduly restricted not only public access to protected material, but their own rights of expression. (4) Constitutional Law § 56~First Amendment and Other Fundamental Rights of Citizens-Scope and Nature — Freedom of Speech and Expression—Expressive Conduct—Distribution of Books. The distribution of books or operation of a picture arcade is an activity entitled *1171 to protection under U.S. Const., 1st Amend. The fact that such businesses operate to make a profit or may exhibit pictures which are offensive or lacking in social worth does not deprive them of First Amendment rights. (5) Constitutional Law § 24-Constitutionality of Legislation—Rules of Interpretation-Presumption Against Constitutionality—Statute Affecting First Amendment Rights. Any law which imposes a prior restraint on the exercise of rights under U.S. Const., 1st Amend, comes to the court with a heavy presumption against its constitutional validity, since freedom of speech enjoys a preferred position under the law. (6) Constitutional Law § 63-First Amendment and Other Fundamental Rights of Citizens—Governmental Regulation and Restriction of Fundamental Rights-- Judicial Review—Reasonableness and Necessity. Legislation which is alleged to regulate or infringe upon rights under U.S. Const., 1st Amend., will be subjected to closest scrutiny. The government has the burden of showing not only that such a law furthers some important or substantial governmental interest unrelated to the suppression of free expression, but also that it is narrowly fashioned to insure the least possible restriction on First Amendment rights in the protection of the government interest. To be reasonable, time, place, and manner restrictions not only must serve significant state interests but also leave open adequate alternative channels of communication. (7a, 7b, 7c) Constitutional Law § 60—First Amendment and Other Fundamental Rights of Citizens-Governmental Regulation and Restriction of Fundamental Rights—Pornography:Lewdness, Indecency, and Obscenity § 5-Obscene Words and Conduct—Statutes and Ordinances—Validity. A city ordinance prohibiting adult bookstores or theaters within 500 feet of certain residential, recreational, or school uses, or within 1,000 feet of another such business, and which limited the operation of such businesses to three types of zones, was not an unconstitutional violation of the right of free expression under U.S. Const., 1st Amend., as applied to the owners of an existing business of selling adult books and showing adult movies. The city's statement of finding in the ordinance that the purpose of the provisions was to alleviate the adverse impact of adult theaters and bookstores was sufficient justification for the regulation. Although the ordinance was broad, contained no exemption permitting preexisting nonconforming uses, and was applicable to all existing businesses, it did not impose an outright ban, nor did it directly abrogate or infringe First Amendment *1172 rights. Furthermore, the owners failed to establish they were foreclosed or unreasonably restricted by the ordinance from effectively operating within the city limits in another location, despite expert testimony to that effect. [See Cal.Jur.3d, Constitutional Law, § 255; Am.Jur.2d, Constitutional Law, § 512.] (8) Constitutional Law § 60-First Amendment and Other Fundamental Rights of Citizens—Governmental Regulation and Restriction of Fundamental Rights-- Pornography. The justification for zoning laws locating adult businesses in specified areas set forth as a "finding" can be based on past experience and evidence offered in similar cases, rather than evidence necessarily adduced supporting the enactment. A city's interest in maintaining the quality of its civic life must be accorded high respect. (9) Constitutional Law § 59—First Amendment and Other Fundamental Rights of Citizens—Governmental Regulation and Restriction of Fundamental Rights-- Necessity That Legislation Be Narrowly Drawn. Legislation regulating activities subject to rights under U.S. Const., 1st Amend., must be narrowly drawn, the test being whether there are less drastic means available to accomplish the government's purpose. An ordinance must be narrowly directed at the evil being attacked if First Amendment activity is involved. COUNSEL Wells & Shiftman and Arthur Wells, Jr., for Defendants and Appellants. John M. Powers, City Attorney, and Michael H. Roush, Assistant City Attorney, for Plaintiff and Respondent. NEWSOM, J. Since at least July 1, 1976, appellants have conducted a business of selling adult books and showing adult Copr. © Bancroft-Whitney and West Group 1998 PageS movies at 540 Georgia Street, Vallejo, California. [FN1] FN1 While a number of appellants have joined in this appeal, we will hereafter refer to the appealing parties in the singular to describe the business affected by one ordinance here under scrutiny. In February of 1978, respondent city council, perceiving an "adverse impact" upon the city from "adult bookstores" and "adult theatres" (Vallejo *1173 Mun. Code, § 16.57.020 Q), enacted ordinance No. 411 1 V.C. (2d), hereafter the ordinance, which provides that such establishments, defined elsewhere in the ordinances, can be located only in three zoning districts: Linear Commercial Districts (C-L); Pedestrian Shopping and Service Districts (C-P); and Intensive Use Districts (I-V). The ordinance also directs that no "adult bookstore" or "adult theatre" may be located within 500 feet of a residential zone, park, playground, library or school, or within 1,000 feet of another such business. Additionally, as originally enacted the ordinance required adult bookstores and adult theatres to obtain conditional use permits, obtainable only upon a showing that the business was "compatible with adjacent uses" and consistent with the city's general plan. After trial of this action, respondent amended the ordinance to eliminate the permit requirement. (Vallejo Mun. Ord. No. 693 N.C. (2d).) The ordinance requires "adult bookstores" and "adult theatres" in operation as of its effective date to comply with the new zoning provisions within one year, but allowed the city's planning commission to grant a one-year extension upon a showing of extreme hardship. Appellant's business location is both within 500 feet of a residential zone and 1,000 feet of another "adult bookstore," Bachelor Books. [FN2] Appellant has neither brought an action to contest the ordinance nor sought a zoning variance. Nevertheless, appellant admits for purposes of testing the constitutional validity of the ordinance that they "meet the definition of adult' use set out in the (ordinance)." FN2 Bachelor Books and Funville Amusement Theatre and Bookshop are appellants in another action before this division (AO14416) in which the ordinance is challenged on constitutional grounds. At trial, appellant offered the testimony of John Flanders, a real estate broker and qualified expert on commercial property, who conducted a survey to determine locations for adult bookstores and adult theatres which are both legal under the ordinance and economically feasible. According to Flanders, the three-block downtown area, although zoned C-P and containing a few available sites, cannot accommodate appellant's business due to the presence of another adult bookstore, Bachelor Books, within 100 feet of all other downtown businesses. In the remaining districts zoned to accommodate appellant's enterprise under the ordinance, Flanders found a number of legally available sites in south and northwest Vallejo. But in Flanders' opinion, none of these locations *1174 would be economically suitable for use as an adult theatre or adult bookstore. Each of the legally available sites was, according to Flanders, either unavailable for rental, without sufficient pedestrian traffic to attract customers, or lacking a building suited to appellant's business. Flanders also testified that it would not be economically feasible for an adult theatre or adult bookstore to purchase a vacant lot and construct its own building in compliance with the Vallejo building code. On the other hand, a number of legally available and vacant sites in the Lanvin Plaza Shopping Center, Vallejo Industrial Park, and the downtown area were suggested by respondent. While the evidence indicates that the owners of many legal sites, such as in the Lanvin Plaza Shopping Center, would not rent space to an adult bookstore or adult theatre, other permissible locations were not, at least according to our review of the record, established as unavailable or unsuitable for adult uses. Appellant has challenged the constitutionality of the ordinance on grounds that it is vague and violative of the First Amendment. Appeal has been taken from a judgment of the trial court upholding the constitutionality of the ordinance. (la)Appellant complains that the ordinance is unconstitutionally vague. The new zoning provisions apply to "adult bookstores" and "adult theatres," terms which appellant argues are not defined with sufficient certainty in the ordinance. The ordinance, in section 16.04.011 of the Vallejo Zoning Code, defines "adult bookstore" as follows: '"Adult bookstore' means any commercial establishment Copr. © Bancroft-Whitney and West Group 1998 Page 4 that has twenty-five percent or more of its stock in books, magazines, photographs, drawings, motion pictures, films or other visual representations which describe or depict sexual intercourse, homosexual acts, masturbation, fellatio, cunnilingus, bestiality, sodomy, sadomasochistic abuse or other sexual excitement or sexual conduct. (Ord. 558 N.C. (2d) Sec. 2 (part), 1980." An "adult theatre" is defined in section 16.04.12 as "any establishment which shows or provides for a fee, films, twenty-five percent or more of the number of which show any of the acts described in section 16.04.01 1. This includes any video tape system which displays on a viewer, screen, or television set. This section includes any motel which provides any such films, video tape, cartridges, or other viewing system for the use of guests or customers in individual rooms, or otherwise."*! 175 Respondent contends that appellants, having admitted that their business falls within the definitions of "adult bookstore" and "adult theatre," lack standing to challenge the ordinance on vagueness grounds. (2)It is the rule that a litigant whose conduct is precisely proscribed by a statute has no standing to argue that the law is vague as applied to others. ( Basiardanes v. City ofGalveston (5th Cir. 1982) 682 F.2d 1203, 1210; Dujfy v. State Bd. of Equalization (1984) 152 Cal.App.3d 1156, 1171 [199 Cal.Rptr. 886]; Gatesv. Municipal Court (1982) 135 Cal.App.3d 309, 312-313 [185 Cal.Rptr. 330].) As noted in In re Cregler (1961) 56 Cal.2d 308, 313 [14 Cal.Rptr. 289, 363 P.2d 305], "one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and ... a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations." (See also Gates, supra., 135 Cal.App.3datpp.312-313.) An exception is recognized if the statute "may cause persons not before the Court to refrain from engaging in constitutionally protected speech or expression." ( Youngv. American Mini Theatres (1976) 427 U.S. 50, 60 [49 L.Ed.2d 310, 320, 96 S.Ct. 2440]; see also 263 [150 Cal.Rptr. 813, 2 A.L.R.4th 1230].) The First Amendment standing exception applies only if the statute's deterrent effect on legitimate expression is '"both real and substantial,'" and if the statute is not " 'readily subj ect to a narrowing construction by the state courts."' ( Young, supra., 427 U.S. at p. 60 [49 L.Ed.2d at p. 320]; see also Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 216 [45 L.Ed.2d 125, 135, 95 S.Ct. 2268]; Purple Onion, Inc. v. Jackson (N.D.Ga. 1981)511F.Supp. 1207, 1218.) (Ib)The language of the ordinance which appellant challenges is the phrase "other sexual excitement or sexual conduct." Appellant maintains that such language, used together with other specifically identified sexual acts to describe the nature of "visual representations" which, if found to comprise 25 percent or more of a merchant's stock, qualifies the business as an "adult bookstore" or "adult theatre" under the ordinance, is impermissibly vague. In Young, a vagueness challenge was made to ordinances which classified a theatre as "adult" if it presented '"material distinguished or characterized by an emphasis on matter depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas" [as specifically defined elsewhere in the law]."1 (Id, 427 U.S. at p. 53 [49 L.Ed.2d at p. 31 6].) The court found that the phrase "characterized by an emphasis" on sexually *1176 explicit activities would not have a sufficient deterrent effect upon the exercise of protected expression to permit a party plainly falling within the coverage of the ordinances to assert a vagueness challenge. The court explained: "For most films the question will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances are not 'readily subject to a narrowing construction by the state courts.' Since there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance, and since the limited amount of uncertainty in the ordinances is easily susceptible of a narrowing construction, we think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court." ( Id., at p. 61 [49 L.Ed.2d at p. 320].) While the phrase "other sexual excitement and sexual conduct" similarly lacks specificity, we do not find it so inherently vague as to pose a "real and substantial" threat to the free exercise of First Amendment rights. As in Young, most books and films will either clearly fall within the scope of the ordinance or not. Examples of "sexual excitement or sexual conduct" are specifically enumerated in the ordinance, providing guidelines which can be used to construe the more general language of the law. ( People v. Hernandez (1978) 90 Cal.App.3d 309,315 [155 Cal.Rptr. 1].) And any remaining ambiguity can, in our view, be readily clarified by a "narrowing construction" in the state courts without insuperable difficulty. Copr. © Bancroft-Whitney and West Group 1998 PageS We perceive other ambiguities in the ordinance. For instance, a theatre showing films "twenty five percent or more of the number of which" depict sexual conduct, qualifies as an "adult theatre" and is subject to the zoning provisions of the ordinance. The ordinance, however, fails to specify whether the 25 percent figure applies to films containing only isolated depictions of sexual conduct or those distinguished or characterized by an emphasis upon depictions of such conduct. While the ambiguity is troubling, we construe it narrowly as applying only to films which fall within the latter description (Kuhnsv. Boardof'Supervisors (1982) 128 Cal.App.3d 369, 375 [181 Cal.Rptr. 1]). So doing, we conclude that the challenged language does not so threaten First Amendment rights as to permit a challenge to its clarity by an enterprise such as Adult Books, Inc., which uncontestably falls within its regulatory scope. We accordingly find that appellant lacks standing to challenge the ordinance on vagueness grounds. (Young, supra., 427 U.S. at p. 61 [49 L.Ed.2d at pp. 320-321]; Basiardanes v. City of Galveston, supra., 682 F.2d 1203, 1211-1212; Castner v. City of Oakland(]9&2) 129 Cal.App.3d 94, 98 [180 Cal.Rptr. 682]; Walnut Properties, Inc. v. City Council (1980) 100 Cal.App.3d 1018, 1072 [161 Cal.Rptr. 411].) *1177 Appellant also contends that the ordinance violates its First Amendment rights. (3)The basis of this argument is that the zoning provisions of the ordinance are overly broad in scope and effect and hence unduly restrictive of public access to protected material. [FN3] FN3 Since appellants are challenging the impact of the ordinance upon their own rights of expression, they have undisputed standing to argue that the ordinance is invalid under the First Amendment. ( Schadv. Mount Ephraim, supra., 452 U.S. 61, 66 [68 L.Ed.2d 671, 678-679]; Basiardanes v. City of Galveston, supra., 682 F.2d 1203, 1210.) (4)It is of course established beyond cavil that the distribution of books or operation of a picture arcade is an activity entitled to First Amendment protection. ( Schadv. Mount Ephraim (1981) 452 U.S. 61, 65 [68 L.Ed.2d 671, 678, 101 S.Ct. 2176]; People v. Glaze (1980) 27 Cal.3d 841, 846 [166 Cal.Rptr. 859, 614 P.2d 291]; Osmond v. EWAP Inc. (1984) 153 Cal.App.3d 842,853 [200 Cal.Rptr. 674].) The fact that such businesses operate to make a profit or may "exhibit pictures which are offensive or lacking in social worth" does not deprive them of First Amendment rights. (People v. Glaze, supra., 27 Cal.Sd at p. 846; see also Osmond, supra., 153 Cal.App.3d at p. 843.) (5)Any law which imposes a prior restraint on the exercise of First Amendment rights comes to the court with a "heavy presumption against its constitutional validity." ( Vance v. Universal Amusement Co. (1980) 445 U.S. 308, 317 [63 L.Ed.2d 413, 421, 100 S.Ct. 1156]; Rosen v. Port of Portland (9th Cir. 1981) 641 F.2d 1243,1246-1247; Kuhnsv. Board of Supervisors, supra., 128 Cal.App.3d 369, 374.) Freedom of speech enjoys a "preferred position" under the law ( People v. Glaze, supra., 27 Cal.3d 841,845; People v. Katrinak (1982) 136 Cal.App.3d 145,151 [185 CaLRptr. 869]). (6)Legislation which is alleged to regulate or infringe upon First Amendment rights will be subjected to closest scrutiny ( Rosen, supra., 641 F.2d at p. 1246; City ofWhittierv. Walnut Properties, Inc. (1983) 149 Cal.App.3d 633, 641 [197 Cal.Rptr. 127]). And the government has the burden of showing not only that such a law furthers some important or substantial governmental interest unrelated to the suppression of free expression, but also that it is narrowly fashioned to ensure the least possible restriction on First Amendment rights in the protection of the governmental interest. ( United States v. O'Brien (1968) 391 U.S. 367, 377 [20 L.Ed.2d 672, 680, 88 S.Ct. 1673]; People v. Glaze, supra., 27 Cal.3d at p. 846; County of Sacramento v. Superior Court (1982) 137 Cal.App.3d 448, 454 [187 CaLRptr. 154]; People v. Katrinak, supra., 136 Cal.App.3d at p. 151; EWAP, Inc. v. City of Los Angeles(l919) 97 Cal.App.3d 179,189 [158 Cal.Rptr. 579].) As the court noted hi Schad v. Mount Ephraim Hospital, supra., 452 U.S. 61, at pages 75- 76 [68 L.Ed.2d 671, at pages 684-685]: "To be reasonable, time, place, and manner restrictions not only must serve *1178 significant state interests but also must leave open adequate alternative channels of communication." (See also City of Whittier v. Walnut Properties, Inc., supra., 149 Cal.App.3d 633, 641.) (7a)We readily acknowledge the legitimate and substantial concern the City of Vallejo has in protecting the moral aesthetic and commercial quality of its neighborhoods and commerce by restricting "adult" businesses to designated areas. Contained within the ordinance is a finding by respondent city council that the purpose of the new zoning provisions is to "alleviate" the "adverse impact" of "adult theatres and adult bookstores ... on the tone of commerce in the city generally." (Vallejo Mun. Code, § 16.57.020Q.) [FN4] Appellant, however, complains that respondent has failed to show any factual basis for its finding or otherwise support its claimed purpose by proof in the record. The law does not require such proof. (8)The justification for zoning laws locating adult businesses in Copr. © Bancroft-Whitney and West Group 1998 Page 6 specified areas can be based upon past experience and evidence offered in similar cases. ( Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 887 [200 Cal.Rptr. 47]; County of Sacramento v. Superior Court, supra., 137 Cal.App.3d 448, 455.) A city's interest in maintaining the quality of its civic life "must be accorded high respect" ( Young v. American Mini Theatres, supra., 427 U.S. 50, 71 [49 L.Ed.2d 310, 327]). (7b)Since in our view the assertion of that interest by the City of Vallejo in the present instance is free from motives of censorship or suppression, and is actuated by legitimate concerns over proper city planning, we find in the present record sufficient justification for the challenged regulations. (Ibid.; see also Strand, supra., 148 Cal.App.3d at p. 887; County of Sacramento, supra., 137 Cal.App.3d at p. 455; Pringlev. CityofCovina(l9Bl) 115 Cal.App.3d 151, 162 [171 Cal.Rptr. 251]; Walnut Properties, Inc. v. City Council, supra., 100 Cal.App.3d 1018, 1023.) FN4 Section 16.57.020 Q states: "The City council finds that adult bookstores and adult theaters ... have an adverse impact on the tone of commerce hi the city generally. They cause mental distress and anguish to nearby residents; they attract undesirable persons who pose dangers to school children and who interfere with adjoining businesses; adult bookstores, when placed on major thoroughfares, tend to downgrade the image of the City and to make it a less desirable place to work and live." (9)It remains for us to examine the effect of the challenged legislation upon freedom of expression. ( Schneider v. State (1939) 308 U.S. 147, 161 [84 L.Ed. 155, 164-165, 60 S.Ct. 146]; Basiardanes v. City of Galveston, supra., 682 F.2d 1203, 1214; Strand Property Corp. v. Municipal Court, supra., 148 Cal.App.3d 882, 887.) As we have said, legislation of this character must be narrowly drawn, the test being "whether there are 'less drastic means' available to accomplish the government's purpose." ( People v. Glaze, supra., 27 Cal.3d 841,847.) "An ordinance must be narrowly directed *1179 at the evil being attacked if First Amendment activity is involved." ( Id., at p. 848.) In Young v. American Mini Theatres, supra., 427 U.S. 50, the United States Supreme Court was called upon to determine the constitutionality of a Detroit zoning ordinance which provided that adult movie theatres could not locate within 1,000 feet of any other two regulated uses. [FN5] The court held that Detroit's zoning ordinance was a legitimate "limitation on the place where adult films may be exhibited," (id., at p. 71 [49 L.Ed.2d at p. 327]), explaining that the "market for this commodity is essentially unrestrained" (id, at p. 62 [49 L.Ed.2d at p. 321]). The plurality opinion acknowledged, however, that "[t]he situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech." (Id, at p. 71, fh. 35 [49 L.Ed.2d at p. 327]; see also Bayside Enterprises, Inc. v. Carson (M.D.Fla. 1978) 450 F.Supp. 696, 701.) The concurring opinion of Mr. Justice Powell [FN6] focused upon the effect of the legislation, concluding that the impact of the Detroit ordinance was merely "incidental and minimal," not having the "effect of suppressing production of or, to any significant degree, restricting access to adult movies." (Id., at pp. 77-79 [49 L.Ed.2d at pp. 330-331].) FN5 The zoning ordinance was an amendment to an anti-skid row ordinance that had been adopted 10 years earlier by the Detroit Common Council. The amendment added adult businesses to a group of previously regulated uses such as cabarets, hotels, bars, pawn shops, pool halls, public lodging houses, secondhand stores, shoeshine parlors and taxi dance halls. ( Young, supra., at p. 52 [49 L.Ed.2datp.314]. FN6 Since there is no majority without Mr. Justice Powell's vote, his views and criteria must be satisfied if a zoning ordinance is to withstand First Amendment scrutiny, as subsequent cases have acknowledged. ( Avalon Cinema Corp. v. Thompson (8th Cir. 1981) 667 F.2d 659, 662.) Subsequently, in Schadv. Mount Ephraim, supra., 452 U.S. 61, the high court struck down a zoning ordinance which had the effect of excluding all nonobscene nude dancing in the Borough of Mount Ephraim. The court there emphasized that legislation regulating free expression "must not only assess the substantiality of the governmental interests asserted but also determine whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment." ( Id., at p. 70 [68 L.Ed.2d at p. 681].) Distinguishing Young on the ground that the Detroit ordinance "did not affect the number of adult movie theaters that could operate in the city," (id., at p. 71 [68 L.Ed.2d at p. 682]), the court concluded that "[t]he Borough has not established that its interests could not Copr. © Bancroft-Whitney and West Group 1998 Page? be met by restrictions that are less intrusive on protected forms of expression." ( Id., at p. 74 [68 L.Ed.2datp.684].) (7c)Thus, the crucial inquiry here becomes: what impact will the ordinance have upon access to protected expression. Among relevant factors *1180 in measuring that impact, the following are significant. First, respondent's ordinance is broad-facially broader than the Detroit zoning law at issue in Young. An "adult bookstore" or "adult theatre" is not only prohibited within 1,000 feet of another such regulated use, but must be located within one of three specified zoning districts and cannot operate within 500 feet of numerous other enumerated uses, such as playgrounds, parks, libraries, schools or residential zones. Such zoning and linear distance requirements are rather more restrictive than those prescribed by the Detroit ordinance. ( Bayside Enterprises, Inc. v. Carson, supra., 450 F.Supp. 696.) Moreover, the ordinance has no grandfather clause permitting preexisting nonconforming uses to continue operations, as do most of the valid zoning regulations enacted in the wake of Young. (Avalon Cinema Corp. v. Thompson, supra., 667 F.2d 659, 662; Purple Onion, Inc. v. Jackson, supra., 511 F.Supp. 1207, 1224.) Here, the ordinance is applicable to all existing businesses, making its impact upon access to protected material more substantial. (Ibid.) Still, the ordinance does not impose an outright ban; "[i]t is a content- neutral regulation of the time, place, and manner of protected speech, not a direct abrogation or infringement of First Amendment rights." ( County of Sacramento v. Superior Court, supra., 137 Cal.App.3d 448, 453; see also EWAP, Inc. v. City of Los Angeles, supra., 97 Cal.App.3d 179, 188-190.) Permissible locations available to adult uses are restricted by the ordinance, but not legislated out of existence. While evidence of the impact of the ordinance upon public access to adult theatres and bookstores was disputed, we think respondent established without doubt the existence within the city of reasonably available sites conforming to the zoning and distance requirements of the ordinance for operation of "adult bookstores" and "adult theatres," thereby meeting its burden of demonstrating the absence of a governmental attempt at suppression of First Amendment activity. We are mindful that appellant produced by expert testimony evidence of the considerable economic difficulty of locating "adult" uses at many legally permissible sites within the City of Vallejo. Such evidence, however, falls far short of establishing that appellant is foreclosed or unreasonably restricted by the ordinance from effectively operating within the city limits. The issue is one of degree, and we are satisfied that the limitations based upon prospective relocation are not onerous. We are also convinced that the ordinance will not result in an oppressive and hence unconstitutional restriction of public access to adult material as found, for example, in Alexander v. City of Minneapolis (D.Minn. 1982) 531 F.Supp 1162, affirmed 698 F.2d 936, and Purple Onion, Inc. v. Jackson, supra., 511 F.Supp. 1207, cases relied upon by appellant. We accordingly conclude that the ordinance is not so pervasive in its constraints as to violate appellant's First Amendment rights. ( *llSlCastner v. City of Oakland, supra., 129 Cal.App.3d 94, 98; Walnut Properties, Inc. v. City Council, supra., 100 Cal.App.3d 1018, 1023.) Appellant's final contention is that the conditional use permit requirements of the ordinance are unconstitutionally broad, vesting excessive discretion in municipal authorities, but this issue has been mooted by an amendment to the ordinance eliminating the permit requirement. We thus decline to consider it. ( Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132 [41 CaLRptr. 468, 396 P.2d 924]; Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859,863 [167 P.2d 725].) The judgment is affirmed. Holmdahl, J., concurred. RACANELLI, P. J., Concurring. Since it is clear that appellants lack the necessary standing to challenge the ordinance on grounds of vagueness and overbreadth, I do not interpret the majority opinion as having decided that constitutional issue; with that reservation, I join in the result reached by the majority. A petition for rehearing was denied May 22, 1985. Racanelli, P. J., was of the opinion that the petition should be granted. Appellants' petition for review by the Supreme Court was denied July 17, 1985. *1182 Cal.App.l.Dist.,1985. City of Vallejo v. Adult Books END OF DOCUMENT Copr. © Bancroft-Whitney and West Group 1998 18 Pagel 163 F.3d 545 98 Cal. Daily Op. Serv. 8965, 98 Daily Journal D.A.R. 12,449 (Cite as: 163 F.3d 545) United States Court of Appeals, Ninth Circuit. Frank COLACURCIO, Jr., dba DDF & S Investment Co.; David Ebert, dba DDF & S Investment Co.; Steve Fueston, dba DDF & S Investment Co., Plaintiffs- Appellants, v. CITY OF KENT, Defendant-Appellee. No. 96-36197. Argued and Submitted April 10, 1998. Decided Dec. 8, 1998. Operators seeking to open adult nightclub challenged constitutionality of city ordinance requiring exotic dancers to perform at least ten feet from patrons, seeking declaratory relief and damages under § 1983. City moved for summary judgment. The United States District Court for the Western District of Washington, Thomas S. Zilly, J., 944 F.Supp. 1470, granted motion. Operators appealed. The Court of Appeals, Hug, Chief Judge, held that: (1) ordinance was not facially content-based; (2) ordinance satisfied content- neutrality requirement for permissible time, place, and manner restrictions on protected speech; (3) ordinance was narrowly tailored to achieve city's objectives in controlling drug transactions and prostitution; and (4) ordinance left open ample alternative channels for communication. Affirmed. Reinhardt, Circuit Judge, dissented and filed a separate opinion. West Headnotes [1] Federal Civil Procedure €=>2470.2 170Ak2470.2 Most Cited Cases When a mixed question of fact and law involves undisputed underlying facts, summary judgment maybe appropriate. [2] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases Nude dancing is a form of expressive conduct protected, to some degree, by the First Amendment. U.S.C.A. Const. Amend. 1. [3] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases 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. U.S.C.A. Const. Amend. 1. [4] Constitutional Law 92k90. 1(1) Most Cited Cases Regulation of symbolic expression is sufficiently justified if it (a) is within the constitutional power of government, (b) furthers an important or substantial governmental interest unrelated to the suppression of expression, and (c) the incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest. U.S.C.A. Const.Amend. 1 . [5] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases In determining whether an ordinance is content-neutral, for First Amendment purposes, principal inquiry is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. U.S.C.A. Const.Amend. 1. [6] Constitutional Law €=^90(3) 92k90(3) Most Cited Cases Content-neutrality requirement for municipal ordinance imposing time, place, or manner restriction on protected speech is met if the involved ordinance is aimed to control secondary effects resulting from the protected expression, such as threats to public health or safety, rather than at inhibiting the protected expression itself. U.S.C.A. ConstAmend. 1. [7] Constitutional Law €=^90(3) 92k90(3) Most Cited Cases City may establish its interest in a regulation burdening protected speech by relying upon evidence reasonably believed to be relevant to the problem that the city addresses. U.S.C.A. ConstAmend. 1. Page 2 [8] Constitutional Law €=^90.4(3) 92k90.4(3) Most Cited Cases In evaluating the secondary effects of adult entertainment for purposes of ordinance restricting such activities, city is permitted, under First Amendment's free speech protections, to rely on experiences of other jurisdictions. U.S.C.A. Const.Amend. 1. [9] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Under First Amendment, regulation is "content-neutral" if it is justified without reference to the content of the regulated speech. U.S.C.A. ConstAmend. 1. [10] Constitutional Law €==>90(3) 92k90(3) Most Cited Cases Finding that the restriction of First Amendment speech was a motivating factor in enacting an ordinance is not of itself sufficient to hold the regulation presumptively invalid. U.S.C.A. Const.Amend. 1. [11] Constitutional Law €=^90.4(3) 92k90.4(3) Most Cited Cases [11] Theaters and Shows €==>3.50 376k3.50 Most Cited Cases City ordinance that required exotic dancers to perform at least ten feet from patrons was not facially content-based, for free speech purposes, despite claim that ordinance essentially banned table dancing; ordinance did not distinguish between table dancing and other exotic dance forms, nor did its stated purposes mention ills of table dancing or goals of restricting offensive conduct. U.S.C.A. Const.Amend. 1. [12] Constitutional Law €=^90.4(3) 92k90.4(3) Most Cited Cases [12] Theaters and Shows C=?3.50 376k3.50 Most Cited Cases In determining whether purpose of ordinance requiring exotic dancers to perform at least ten feet from patrons was content-neutral, for free speech purposes, Court of Appeals would rely on all objective indicators of intent, including the face of ordinance, the effect of ordinance, comparison to prior law, facts surrounding enactment, the stated purpose, and the record of proceedings. U.S.C.A. Const.Amend. 1. [13] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [13] Theaters and Shows €==>3.50 376k3.50 Most Cited Cases City ordinance requiring exotic dancers to perform at least ten feet from patrons was justified without reference to speech, and thus satisfied content- neutrality requirement for permissible time, place, and manner restrictions on protected speech, even though it allegedly resulted in complete ban of table dancing; the record did not reflect unusual procedural maneuvering on part of city officials or illicit purposes behind ordinance's enactment, ordinance was based on comprehensive study concerning secondary impacts of adult entertainment businesses, and police affidavits documented connection between table dancing and illegal sexual activity. U.S.C.A. Const.Amend. 1. [14] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [14] Theaters and Shows €==>3.50 376k3.50 Most Cited Cases City ordinance requiring exotic dancers to perform at least ten feet from patrons was narrowly tailored to achieve city's objectives in controlling drug transactions and prostitution, notwithstanding claims that less burdensome alternatives existed. U.S.C.A. Const. Amend. 1. [15] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Regulation of the time, place or manner of protected speech must be narrowly tailored to serve the government's legitimate content-neutral interests, but it need not be the least restrictive or the least intrusive means of doing so; rather, requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. U.S.C.A. Const.Amend. 1. [16] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. U.S.C.A. Const. Amend. 1. [17] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Validity of a time, place, or manner regulation of protected speech does not turn on a judge's agreement with the responsible decisionmaker concerning the most Page 3 appropriate method for promoting significant government interests. U.S.C. A. Const.Amend. 1 . [18] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Time, place, or manner restrictions on protected speech will not violate the First Amendment simply because there is some imaginable alternative that might be less burdensome on speech. U.S.C. A. Const.Amend. 1. [19] Constitutional Law €=390.4(3) 92k90.4(3) Most Cited Cases [19] Obscenity 281k6 Most Cited Cases (Formerly 376k3. 50) Nude table dancing, even if unique form of protected expression due to use of multisensory perception to communicate message, was not sufficiently unique to merit special protection under First Amendment. U.S.C.A. ConstAmend. 1. [20] Constitutional Law €=^90.1(4) 92k90.1(4) Most Cited Cases For First Amendment purpose, "traditional public forums" are places which by long tradition or government fiat have been devoted to assembly and debate. U.S.C.A. Const.Amend. 1. [21] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [21] Theaters and Shows €=>3.50 376k3.50 Most Cited Cases City ordinance that required exotic dancers to perform at least ten feet from patrons left open ample alternative channels for communication, notwithstanding potential nightclub operators' claims that ordinance essentially banned table dancing; distance requirement did not rob dancers of their forum or their entire audience. U.S.C.A. ConstAmend. 1. [22] Constitutional Law €=^90.4(3) 92k90.4(3) Most Cited Cases [22] Theaters and Shows €=^3.50 376k3.50 Most Cited Cases Claim that economic impact of ordinance requiring exotic dancers to perform at least ten feet from patrons foreclosed entire medium of expression offered by table dancing did not preclude determination that ordinance left open ample alternative channels of communication, for First Amendment purposes, given absence of evidence that ordinance's distance requirement served as absolute bar to market entry. U.S.C.A. Const. Amend. 1. [23] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Test for determining whether governmental action will foreclose entire medium of expression, for First Amendment purposes, is whether a business could operate under the regulations at issue, not whether a particular business will be able to compete successfully within the market. U.S.C.A. Const.Amend. 1. *548 Gilbert H. Levy, Levy & Hamilton, Seattle, WA, for plaintiffs- appellants. William P. Schoel and Jayne L. Freeman, Keating, Bucklin & McCormack, Seattle, WA, Roger A. Lubovich, City Attorney, Laurie A. Evezich, Assistant City Attorney, Kent, WA, for defendant-appellee. Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-95- 01176-TSZ. Before: HUG, Chief Judge, and REINHARDT and WIGGINS, Circuit Judges. Opinion by Chief Judge HUG; Dissent by Judge REINHARDT. HUG, Chief Judge: In this case we examine whether the district court was correct in concluding as a matter of law that the City of Kent's ordinance, which requires nude dancers to perform at least ten feet from patrons, does not violate the First Amendment of the United States Constitution. Appellants, who planned to open a nightclub featuring nude dancing on stage and personalized table dancing, argue that the ten-foot distance requirement amounts to a complete ban on table dancing, which they allege is a unique form of expression entitled to separate First Amendment analysis. We have jurisdiction under 28 U.S.C. §1291. We affirm. I. Factual Background Appellants desire to open a non-alcoholic adult nightclub hi the City of Kent, Washington, featuring Page 4 nude dancing on stage and personalized table dances. Appellants located a site in Kent and applied for a building permit. The City of Kent has examined issues related to adult entertainment for several years. In 1982, the City's planning department published a study on the effects of adult entertainment on surrounding communities, including a discussion of various regulatory alternatives. Kent's initial regulatory effort involved a zoning ordinance, which Appellants challenged in 1994. The district court found that the zoning ordinance failed to designate a sufficient number of sites for the location of adult businesses. Pursuant to a settlement agreement, the City agreed to treat Appellants' proposed business as a lawful non-conforming use under the zoning law. *549 In March 1995, the Kent City Council adopted Adult Entertainment Ordinance 3214, establishing new standards for the licensing and operation of adult uses in Kent. In April 1995, that ordinance was amended by Ordinance 3221, in an effort to conform the legislation to the King County Superior Court's ruling on a similar ordinance in Bellevue, Washington. Ordinance 322 1 , which has been codified as Kent City Code § 5. 10.010 et seq., provides, in relevant part: The portion of the exotic dance studio premises in which dancing and adult entertainment by an entertainer is performed shall be a stage or platform at least twenty-four (24) inches in elevation above the level of the patron seating areas. KCC § No dancing or adult entertainment by an entertainer shall occur closer than ten (10) feet to any patron. KCC§5.10.120(A)(3). The code also specifies minimum lighting requirements and prohibits dancers from soliciting or receiving tips from patrons. Shortly after enactment of the ordinance, Appellants brought this action for declaratory relief and damages pursuant to 42 U.S.C. § 1983. Appellants contend that the ten-foot rule would effectively eliminate table dancing, which they argue is a unique form of expression entitled to separate First Amendment analysis. Unlike nude dancing performed on stage, table dancing is performed in close proximity to patrons. Appellants have submitted declarations of a cultural anthropologist and a communications expert attesting to the uniqueness of table dancing and the potentially detrimental effects of the ten-foot rule on the dancers' erotic messages. Appellants also argue that table dancing is the primary source of income for exotic dancers, and that the Kent ordinance would make it uneconomical and therefore impossible for exotic dance studios to open or operate in Kent. The City filed a motion for summary judgment, which the district court granted in November 1996. The district court ruled as a matter of law that (1) the ordinance was a content-neutral time, place and manner regulation; and (2) the ten-foot distance requirement was narrowly tailored and left open ample alternative avenues for communication of protected artistic expression. Appellants filed a timely notice of appeal. II. Standard of Review [ 1 ] A grant of summary judgment is reviewed de novo. Covey v. Holtydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997). We must determine, viewing the evidence in the light most favorable to Appellants, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. We do not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue of material fact for trial. Id. When a mixed question of fact and law involves undisputed underlying facts, summary judgment may be appropriate. Han v. Mobil Oil Corp., 73 F.3d 872, 875 (9th Cir. 1995). III. Level of Protection for Nude Dancing [2] The parties and the district court correctly acknowledge that nude dancing is a form of expressive conduct protected, to some degree, by the First Amendment. [FN1 ] There is understandable confusion, however, about the level of such protection. The district court cited a plurality opinion of the Supreme Court indicating that nude dancing "is expressive conduct within the outer perimeters of the First Amendment, though ... only marginally so." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Appellants cite to pre-Barnes Ninth Circuit precedent which accorded nude dancing full First *S50 Amendment protection. Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir. 1986). FN1. The Supreme Court has determined that conduct is expressive when the following two factors are present: (1) intent to convey a particularized message; and (2) a substantial likelihood that the message will be understood by those receiving it. Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). The fragmented nature of Supreme Court opinions PageS dealing with nude dancing in particular and sexually explicit but non-obscene conduct in general has resulted in a lack of clear guidance on the level of First Amendment protection afforded to this type of expression. In Youngv. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), which involved a zoning ordinance governing the location of adult theaters, a plurality of the Court agreed that adult entertainment should be regarded as "low value" speech: "[F]ew of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice." Id at 70, 96 S.Ct. 2440. However, five Justices in Young, one concurring and four dissenting, argued that First Amendment protection should not vary with the social value ascribed to speech by the courts. See id at 73 n. 1, 96 S.Ct. 2440 (Powell, J., concurring); Id at 85-87, 96 S.Ct. 2440 (Stewart, J., dissenting). Writing for our court in 1986, Judge Pregerson in Kev alluded to the voting tally in Young when he ascribed full First Amendment protection to nude dancing. Kev, 793 F.2d at 1058. Fifteen years after Young, a plurality of the Supreme Court including Justices Rehnquist, O'Connor, and Kennedy, reiterated that nude dancing enjoys only marginal First Amendment protection. Barnes, 501 U.S. at 565-66, 111 S.Ct. 2456. [FN2] Two Justices concurred in Barnes, with four dissenters advocating full First Amendment protection. Because one concurrence did not reach the issue, Barnes represents a four-four split on the matter. [FN3] FN2. See also Schad v. Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (stating that "nude dancing is not without its First Amendment protections"); Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561,45 L.Ed.2d 648 (1975) (noting that nude barroom dancing may involve only the "barest minimum of protected expression" which "might be entitled to First and Fourteenth Amendment protection "under some circumstances."). FN3. Justice Scalia, concurring, determined that because the statute did not regulate nude dancing in particular but instead regulated public nudity in general, the law was not specifically directed at expression and therefore was not subject to First Amendment scrutiny at all. Barnes, 501 U.S. at 572, 111 S.Ct. 2456 (Scalia, J., concurring). Justice Souter, concurring, accorded a low-level of First Amendment protection to nude dancing, noting 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." Barnes, 501 U.S. at 584, 111 S.Ct. 2456 (Souter, J., concurring) (citing Young, 427 U.S. at 70,96 S.Ct. 2440)). Dissenting Justice White, joined by Justices Marshall, Blackmun, and Stevens, argued for full First Amendment protection for nude dancing. Barnes, 501 U.S. at 593,111 S.Ct. 2456 (White, J., dissenting). Scholars have grappled with the problem of the uncertain status of nude dancing and adult entertainment under the First Amendment. Professor Lawrence Tribe noted that "no Court has yet squarely held that sexually explicit but non-obscene speech enjoys less than full First Amendment protection." Tribe, American Constitutional Law §§ 12-18, p. 938 (2d Ed. 1988). Although his comment was made prior to Barnes, the observation continues to be accurate today. Professor Erwin Chemerinsky views Supreme Court precedent as according sexually explicit expression "low-value" status. Chemerinsky, Constitutional Law § 11..3.4.4, p. 836-41 (1st Ed. 1997). Professors Gerald Gunther and Kathleen Sullivan suggest that even in cases where courts do not explicitly treat sexual expression as lower-value speech, the decisions have implicitly treated such speech as a "subordinate species" in their tolerance of content- specific regulation. Gunther and Sullivan, Constitutional Law § 5(D), p. 1155-56 (13th Ed. 1997). IV. Content Neutrality Appellants contend that the district court erred in determining that the Kent Ordinance is content-neutral as a matter of law. Appellants argue that the ordinance is content-based on its face, and that the record shows that the City's predominant intent in passing the Ordinance was to ban adult entertainment in Kent. This contention is based *551 on statements made by the mayor and other city officials, in addition to Kent's alleged pattern of adopting restrictive ordinances in response to proposals to build exotic dance studios. [3][4] 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. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The Supreme Court has determined that this test is Page 6 similar or identical to the O'Brien test generally applied to regulations affecting symbolic speech. [FN4] FN4. "[Validating a regulation of expressive conduct... in the last analysis is little, if any, different from the standard applied to time, place or manner restrictions." Clark v. Community for Creative Non- Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Under the standard set out in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), a regulation of symbolic expression is sufficiently justified if it: (a) is within the constitutional power of government; (b) furthers an important or substantial governmental interest unrelated to the suppression of expression; and (c) the incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest. Id. at 377, 88 S.Ct. 1673. The Ninth Circuit frequently cites both tests when analyzing regulations of adult entertainment. See, e.g., Walnut Properties, Inc. v. City ofWhittier, 808 F.2d 1331, 1334-35 (9th Cir.l986)("fFa/nztf /"); Kev, 793 F.2d at 1058-59 & n. 3 (9th Cir.1986). [5] [6] In determining whether an ordinance is content-neutral, our principal inquiry is "whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 491 U.S. at 791, 109 S.Ct. 2746. The content-neutrality requirement is met if the involved ordinance is " 'aimed to control secondary effects resulting from the protected expression,' rather than at inhibiting the protected expression itself." Tollis, Inc. v. San Bernardino County, 827 F.2d 1329, 1332 (9th Cir. 1987)(quoting Int'l Food and Beverage Systems v. City of Fort Lauderdale, 794 F.2d 1520, 1525 (llth Cir. 1986)). See also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29. Secondary effects may include, but are not limited to, threats to public health or safety. Building upon the Supreme Court's reasoning in Renton, we outlined the appropriate test in Tollis: If the ordinance is predominantly aimed at the suppression of First Amendment rights, then it is content-based and presumptively violates the First Amendment. If, on the other hand, the predominant purpose of the ordinance is the amelioration of secondary effects in the surrounding community, the ordinance is content-neutral, and the court must then determine whether it passes constitutional muster as a content-neutral time, place and manner regulation. 827 F.2d at 1332 (internal citation omitted). [7][8][9][10] A city may establish its interest in a regulation by relying upon evidence "reasonably believed to be relevant to the problem that the city addresses." Renton, 475 U.S. at 51-52, 106 S.Ct. 925. In evaluating the secondary effects of adult entertainment, the city is also permitted to rely on experiences of other jurisdictions. Id. A regulation is content-neutral if it is "justified without reference to the content of the regulated speech." Id. at 48, 106 S.Ct. 925 (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,771,96 S.Ct. 1817,48L.Ed.2d346(1976)). A finding that the restriction of First Amendment speech is a "motivating factor" in enacting an ordinance is not of itself sufficient to hold the regulation presumptively invalid. Id. at 46- 49, 106 S.Ct. 925. The case law has not clarified when secondary effects warrant restriction of speech and how much proof there must be of these effects. [FN5] Similarly, precedent provides no standards for determining when an illicit but inconsequential "motivating factor" might develop into an illicit and controlling "predominant purpose." Precedent suggests that government defendants generally will prevail on *552 the issue of content neutrality if evidence shows that the enactment can be "justified without reference to ... speech." See Kev, 793 F.2d. at 1058-59 (internal quotations and citations omitted). This is a difficult standard to overcome, unless the challenger can show that the statute is speech-discriminatory on its face. See, e.g., BSA, Inc. v. King County, 804 F.2d 1104,1108-09 (9th Cir. 1986) (holding unconstitutional county ordinances which specifically exempted barroom nude dancing from their definitions of "expressive dance," thus effecting complete bans on nude dancing). FN5. Chemerinsky, Constitutional Law, § 11.3.4.4., p. 840 (1997). [11] Contrary to Appellants' contention, the Kent ordinance is not content- based on its face. The ordinance does not distinguish between table dancing and other exotic dance forms. Nor do the stated purposes mention the ills of table dancing or the goals of restricting offensive conduct. The ten-foot distance requirement applies to all forms of dancing within exotic dance studios. [12][13] We will look to the full record to determine whether evidence indicates that the purpose of the ordinance is to suppress speech or ameliorate secondary Page? effects. In so doing, we will 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." City of Las Vegas v. Foley, 747 F.2d 1294,1297 (9th Cir. 1984). The district court was correct in rejecting the City's claim that the court need only look to the stated purposes of the ordinance to find a permissible purpose. Appellants cite to statements by city officials and others allegedly revealing the City's underlying speech-suppressive purposes. For example, Appellants quote the following statement by the City Attorney at a Planning Commission meeting: Since we cannot zone these type[s] of businesses out of the City, the licensing was looked at that was in place for this type of facility ... As indicated, these uses cannot be prohibited, but they can be regulated. Appellants also cite the following statement from the Planning Committee Chairman: With all the regulations we have adopted and stuff, I'm not too concerned that someone's going to come and try to open something up. Because we've made it a little bit difficult for them to make money in the traditional way they make money. In determining the extent to which comments such as these should inform our analysis of predominant intent, we look to our decision in Foley. In Foley, we noted that individual statements by city leaders were admissible if they "showed the chain of events from which intent may be inferred, rather than merely the subjective intent of individual legislators." Id. at 1298. Put another way, the subjective statements cited by Appellants are relevant if they show objective manifestations of an illicit purpose, such as a departure from normal procedures or a sudden change in policy. [FN6] In the present case, the record does not indicate unusual procedural maneuvering on the part of the Kent Planning Committee, Planning Commission, City Attorney, or other City governing bodies. The enactment of the Kent Ordinance was consistent with the City's comprehensive planning policy, and reflects no procedural lapses that might suggest unjust treatment. Objective indicators of illicit purpose are not present here. FN6. Equal protection cases may provide some guidance in this regard. See, e.g, Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252,267-68,97 S.Ct. 555,50 L.Ed.2d 450 (1977) (allowing courts to consider "contemporary statements by members of the decisionmaking body" as evidence of sudden changes in policy or departure from normal procedures). Appellants disagree, contending that Kent's history reflects a clear pattern of adopting "the most restrictive regulations possible" in response to proposals to build nude dance studios hi the City. This contention is rebutted by the record. The record indicates that Kent's approach has grown more lenient over time. Evidence suggests that after the failed zoning attempt, City leaders learned that unduly restrictive regulations would not survive judicial review. The City Attorney's comments at a 1995 Planning Commission meeting reflect this *553 awareness: "These uses cannot be prohibited but they can be regulated ... the question is where do we put this type of business and how many sites do we allow." The record indicates that the City devoted considerable resources to developing an ordinance that would be constitutionally sound. Kent's distance requirements were modeled after regulations upheld in Kitsap County, Bellevue, King County, and Kelso. [FN7] FN7. Kent's 1982 study also indicates an intent to assimilate rather than eliminate adult uses: "The City of Kent seeks to assimilate adult uses into the overall urban fabric with the least adverse impact to the business and residential environments." City of Kent Planning Dept, Adult Use Zoning Study 41 (1982). "A secondary objective is to discuss the ability of the City to provide services-primarily protective services- based on alternative locational requirements for adult uses." Id. Even if we were to accord substantial weight to the mixed motivations of certain City officials, the record indicates that the City's documentation of permissible purposes satisfies Virginia Pharmacy Board and Renton. Kent's ordinance was based on a comprehensive study of adult entertainment businesses and their secondary impacts. In formulating the ordinance, the City relied on the study, concluding that regulation of adult uses was an important factor in controlling prostitution, drug dealing, and other criminal activity. See e.g., Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1258 (5th Cir. 1992) (treating reliance on formal studies as evidence of permissible purpose). The record also includes affidavits and statements by police officers and vice detectives documenting the connection between table dancing and illegal sexual activity. We find, therefore, that the Kent Ordinance is justified without PageS reference to speech. V. Narrow Tailoring [14] Appellants argue that the ten-foot distance requirement fails the narrow tailoring requirement because there are less-speech-restrictive means of achieving the same results. Appellants contend that summary judgment was improper because the district court failed to consider less burdensome alternatives such as a "no touch" ordinance and a one-foot distance requirement. [15][16]A regulation of the tune, place or manner of protected speech must be narrowly tailored to serve the government's legitimate content-neutral interests, but it need not be the least restrictive or the least intrusive means of doing so. Ward, 491 U.S. at 798-99, 109 S.Ct. 2746. "Rather, the requirement of narrow tailoring is satisfied 'so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Id. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). This standard does not mean that a time, place or manner regulation may burden substantially more speech than necessary to further the government's interests. "Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ward, 491 U.S. at 799, 109 S.Ct. 2746. [17][18] The validity of a 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." Albertini, 472 U.S. at 689, 105 S.Ct. 2897 (citing Clark, 468 U.S. at 299, 104 S.Ct. 3065). Such restrictions will not violate the First Amendment "simply because there is some imaginable alternative that might be less burdensome on speech." Albertini, 472 U.S. at 689, 105 S.Ct. 2897. The district court was correct in concluding that the ten-foot setback is narrowly tailored to achieve Kent's objectives. The courts have emphasized that judges should not supplant the legislature's role in developing the most appropriate methods for achieving government purposes. See, e.g., DLS, Inc. v. City of Chattanooga, 107 F.3d 403,413 (6th Cir. 1997) (upholding a six- foot distance requirement, the court stated that "it is not for us to say that a seven-foot zone or a five-foot zone would strike a better balance.") *554 As to whether the ordinance burdens substantially more expression than necessary, the district court was correct in concluding that this argument is foreclosed by our earlier decision in Kev, which upheld a similar ten-foot distance requirement. Kev, 793 F.2d at 1061. Appellants argue that because Kev was decided prior to the Supreme Court's decision in Ward, the Kev court did not have occasion to apply the Ward test, which protects speech from unnecessary burdens. See Ward, 491 U.S. at 798, 109 S.Ct. 2746. This argument fails for two reasons. First, we need not reach the issue, as we leave the fine-tuning of the distance requirement to the legislative body. Second, at the time Kev was decided, Supreme Court precedent included speech-protective language similar or identical to that in Ward. See, e.g, Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 810,104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (requiring the ordinances in question to "respond [ ] precisely to the substantive problem which legitimately concerns [the government].") (emphasis added); Clark, 468 U.S. at 297, 104 S.Ct. 3065 (same); O'Brien, 391 U.S. at 377, 88 S.Ct. 1673 (requiring the incidental restrictions on First Amendment freedoms to be "no greater than is essential to the furtherance" of the asserted governmental interests). Several courts have upheld distance requirements as a narrowly tailored means of controlling illegal sexual contact and narcotics transactions. In BSA Inc.. we upheld a six-foot distance requirement while prohibiting a total ban on nude barroom dancing, stating that the distance requirement "imposes at most a very minimal restriction on First Amendment activity." 804 F.2d at 1112. The four dissenting Justices in Barnes, arguing against the statewide ban on public nudity, supported distance requirements as a less-restrictive means of furthering the government's interest in protecting public health and safety. Barnes, 501 U.S. at 594, 111 S.Ct. 2456. See also, DLS, Inc. v. Chattanooga, 107 F.3d 403 (6th Cir. 1997) (six-foot distance requirement); City of Colorado Springs v. 2354, Inc., 896 P.2d 272 (Colo. 1995) (en bane) (three-foot); Zanganeh v. Hymes, 844 F.Supp. 1087 (D.Md.1994) (six-foot); T-Marc, Inc. v. Pinellas County, 804 F.Supp. 1500 (M.D.Fla.1992) (three- foot); Ino Jno, Inc. v. City of Bellevue, 132 Wash.2d 103, 937 P.2d 154 (Wa.1997) (en bane) (four-foot). Furthermore, the less-restrictive alternatives presented by Appellants arguably are not "reasonable" alternatives as they would not serve the City s purposes of controlling drug transactions and prostitution. The one-foot and "no-touch" ordinances would be unenforceable, as both would fail to provide sufficient line-of-vision for law enforcement personnel. An earlier "no- touch" ordinance in Kent failed for this reason. In addition, both of these options would permit Page 9 verbal communication between dancers and patrons, thereby failing to curtail propositions for drugs or sex. [FN8] It is unclear from the record whether Appellants would support a four-foot distance requirement. While claiming at one point that such a regulation would be narrowly tailored, Appellants state elsewhere in the record that a four-foot requirement put them out of business in Bellevue. Although a four-foot distance requirement would keep patrons and dancers just out of arm's reach, a ten-foot requirement covers two arm spans and keeps patrons out of earshot. Appellants have failed to present evidence showing that a ten-foot rule burdens substantially more expression than necessary to achieve its purpose. We find, therefore, that summary judgment was proper on the issue of content-neutrality. FN8. We note that, according to Appellants' own evidence, an ordinance imposing a distance requirement any greater than six inches would effectively ban table dancing. The declaration of Appellants' expert cultural anthropologist defines table dancing as a dance performed in front of an audience at a distance of one to six inches. VI. Alternative Channels of Communication [19] The final attribute of a valid time, place and manner regulation is that it must "leave open ample alternative channels for communication of the information." *55SWard, 491 U.S. at 791, 109 S.Ct. 2746. What makes this case unusual is Appellants' claim that table dancing is a unique form of protected expression that is qualitatively different from nude stage dancing and entitled to separate First Amendment analysis. Appellants contend that the Kent ordinance fails to leave open ample alternatives, as a ten-foot distance requirement would eliminate table dancing altogether, an essential element of which is close proximity between dancers and patrons. Appellants argue that, unlike stage dancing, table dancing uses "not just vision but multi-sensory perception to communicate its message though the sounds, smells, and movements of the dancer within the [patron's] intimate perimeter." Therefore, the district court misapplied the law by failing to acknowledge the uniqueness of table dancing and instead holding that the ordinance "merely diminishes to a limited degree the effectiveness of the erotic message conveyed by the dance." Appellants support their theory with declarations of a cultural anthropologist and a communications expert attesting to the uniqueness of table dancing and the detrimental effect of the ten-foot rule on the dancer's message. 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. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 525-27, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (Brennan, J., concurring). The Court has been particularly hesitant to close off channels of communication which provide individuals with inexpensive means of disseminating core political messages. See, e.g., City ofLadue v. Gilleo, 512 U.S. 43, 54-56, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (ordinance banning residential signs almost completely foreclosed "a venerable means of communication that is both unique and important" and for which there is no adequate substitute, particularly for persons of modest means); [FN9] Martin v. City ofStruthers, Ohio, 319 U.S. 141, 146, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) ("Door to door distribution of circulars is essential to the poorly financed causes of little people."). FN9. The Ladue Court noted, "[Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute. Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one's house with a handheld sign may make the difference between participating and not participating in some public debate." Ladue, 512 U.S. at 57, 114 S.Ct. 2038. The Court also noted that "Ladue's ordinance covers even such absolutely pivotal speech as a sign protesting an imminent governmental decision to go to war." Id. at 54, 114 S.Ct. 2038 (internal citations omitted). Assuming arguendo that table dancing is a unique form of expression, precedent indicates that uniqueness, alone, is insufficient to trigger separate First Amendment protection. We recently emphasized this point in One World One Family Now v. City and County of Honolulu, 76 F.3d 1009 (9th Cir.1996). Acknowledging that a ban on wearing message-bearing T-shirts would raise serious constitutional questions, the same was not true for selling T-shirts: "[W]e do not believe the sale of message-bearing T-shirts is so 'uniquely valuable or important [a] mode of communication' as to be without effective substitute." Id. at 1015 (quoting City Council v. Taxpayers for Vincent, 466 U.S. 789,812,104 S.Ct. 2118,80 L.Ed.2d Page 10 772 (1984) (emphasis added)). [FN10] FN10. The court elaborated on this point: "While selling T-shirts is a unique form of expression in the sense that serving message-bearing raviolis or preaching on street corners in a Donald Duck voice would be unique, it does nothing to make the message uniquely significant or effective." One World, 76F.3dat 1015. [20] Appellants' argument misses a central point-in assessing a First Amendment challenge, we look not only at the private claims asserted in the complaint, but into the governmental interests protected by the enactment. As the Supreme Court noted in R.A. V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), a "valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be *556 associated with ... 'secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the ... speech.' " Id. at 389, 112 S.Ct. 2538 (quoting Renlon, 475 U.S. at 48, 106 S.Ct. 925). Using this reasoning, we upheld an ordinance prohibiting "tagging," the practice of distributing flyers and soliciting funds from automobile passengers while stopped at red lights. Acorn v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986). Although the appellants, a non-profit group, had argued that tagging was a "uniquely effective method of fundraising," id. at 1271, we determined that the ordinance was justified for traffic control and public safety purposes. Id. at 1268-70. See also Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S.Ct. 855, 866, 137 L.Ed.2d 1 (1997) (holding that public safety interests justified fifteen-foot "fixed buffer zone" separating abortion protestors from abortion clinics). The prohibitions in Acorn and Schenck were upheld despite the fact that they were analyzed under the rigorous standards applied to speech regulation in traditional public forums, where "the government's ability to permissibly restrict expressive activity is very limited." United States v. Grace. 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). [FN11] We conclude that table dancing in private nightclubs, with documented links to prostitution and drug dealing, is a highly unlikely candidate for special protection under the First Amendment. FN11. Traditional public forums are "places which by long tradition or government fiat have been devoted to assembly and debate." Perry Education Ass'n v. Perry Local Educators'Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Although in Acorn, we did not decide whether traffic-filled intersections should be considered public forums, we nevertheless applied public forum analysis to the case. Acorn, 798 F.2d at 1267. [21] In support of their claim that the Kent ordinance effects a complete ban on a unique mode of expression, Appellants borrow from public forum analysis to argue that the applicable "forum" for a table dance is not the whole cabaret, but merely the area required for performing the table dance. According to this argument, the ten-foot distance requirement fails to leave open ample alternative avenues of expression within that forum. Although the time, place and manner test applied to regulations affecting adult entertainment was initially developed for speech in public forums, Appellants are incorrect in attempting to extend all aspects of the public forum principle to private nightclubs. Even assuming the forum concept were applicable here, Appellants' argument fails due to the incongruity of its potential results. Following Appellants' logic, we would be required to provide separate First Amendment protection to so-called "lap dancing," arguably another unique form of expressive conduct in which the nude or semi- nude dancer performs in the patron's lap. Any distance requirement, even a one-foot setback, would amount to a flat ban on communication within that "forum." Appellants' fluid definition of relevant forums, if carried to its logical conclusion, would require courts to subdivide audiences to the extent that any speech-restrictive regulation would necessarily fail. Again, Appellant's theory would lead to the ironic result that forms of expressive conduct with documented connections to criminal activity would enjoy special constitutional protection. The district court was correct in rejecting this proposition. If forum analysis is relevant here, the appropriate forum is the entire cabaret. Even assuming that the audiences for table dancing and stage dancing are distinguishable, there is undoubtedly a high degree of overlap. The ten-foot distance requirement does not rob dancers of their forum or their entire audience. [22] Appellants also provide an economic argument to support their claim that a ten-foot distance requirement would foreclose an entire medium of expression. Appellants contend that the distance requirement and prohibition on tipping would prevent exotic dancers from making a living in Kent, and would make it uneconomical and therefore impossible for adult clubs Page 11 to open and operate in the city. Appellants allege that income from table dances is the main source of revenue for Appellants' entertainers, who are not compensated for stage dances. Table *557 dancers in Appellants' establishments are independent contractors who pay rental fees to the dance studios. These fees are a primary source of revenue for the enterprise. Appellants allege that the four-foot distance requirement imposed in Bellevue caused profits to drop at their Bellevue establishment, requiring it to close. [FN12] FN12. Appellants allege that, after a four-foot setback requirement was effectuated in Bellevue, the average number of dancers per week dropped from fifty to twelve, and thirty-eight dancers quit their jobs. Appellants also noted that "few if any" patrons purchased table dances. [23] We recognize that determining whether a governmental action will foreclose an entire medium of expression can be a difficult undertaking. In some cases, as mLadne (signs) or Stnithers (handbills), a ban will be evident from the face of the ordinance. In other instances, as in the case at bar, it is not. The test for determining whether an adult business1 First Amendment rights are threatened is whether a the government has "effectively den[ied]" the business "a reasonable opportunity to open and operate" within the city or area in question. Renton, 475 U.S. at 54, 106 S.Ct. 925. We elaborated on this test in Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996). The test is whether a business could operate under the regulations at issue, not whether a particular business will be able to compete successfully within the market. Id. at 666. [FN13] "[I]n the absence of any absolute bar to the market... it is irrelevant whether '[a regulation] will result in lost profits, higher overhead costs, or even prove to be commercially unfeasible for an adult business'." Id. (quoting Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1531 (9th Cir. 1993)). The market access test has been applied to adult zoning cases, where total foreclosure of the market can be ascertained by calculating available locational sites. We have held unduly restrictive adult zoning ordinances to be unconstitutional on this basis. See, e.g., Walnut Properties, Inc. v. City of Whittier (Walnut Properties II ), 861 F.2d 1102, 1110 (9th Cir. 1988) (holding that zoning ordinance's acute restriction on available acreage would deny adult theaters a reasonable opportunity to operate in the city, and would force closure of all existing adult businesses). The analysis may be even more complicated when, as here, distance requirements are involved. However, Appellants have not presented economic evidence sufficient to show that the ten-foot distance requirement would serve as an absolute bar to market entry, as required under Spokane Arcade. Rather, Appellants have merely shown a potential loss in profits, which arguably could be remedied by restructuring the way they do business. The fact that Appellants hire their dancers on an independent contractor basis, refuse to pay their dancers for dancing on stage, require their dancers to pay rental fees, and limit their dancers' remuneration to tips from patrons, appears to us to be an effort to maximize profits while minimizing dancers' economic security. As to Appellants' contention that table dancing is a unique form of expression entitled to separate First Amendment analysis, this issue is not outcome determinative, because uniqueness, alone, is insufficient to trigger special protection. VII. For the reasons de$cribed herein, we determine that the district court was correct in ruling as a matter of law that the Kent ordinance is content neutral, and that the ten-foot distance requirement is narrowly tailored and leaves open ample alternative avenues for communication of protected expression. The judgment of the district court is AFFIRMED. FN13. In other words, Spokane Arcade clarified that the scope of permissible economic analysis is whether one is permitted to enter or participate in the market in the first instance. Id. "Even if the costs of compliance were so great that [appellants] would be forced out of business, the ordinancef ] do[es] not pose any intrinsic limitation on the operation of the [business]." Id. at 667. REINHARDT, Circuit Judge, dissenting: I respectfully dissent. I believe that the district court erred in granting summary *558 judgment. By requiring nude dancers to perform on a raised platform and to remain at least ten feet away from customers, the City of Kent effectively outlawed table-dancing. The issue before us is whether table dancing constitutes a separate form of expressive communication from other Page 12 types of nude dancing-that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers. The appellants presented sufficient evidence to establish a triable issue of fact on that question. By doing so, they have precluded a judicial determination that the ordinance is content-neutral as a matter of law. Because the district court reached that very conclusion, I would reverse and remand for trial. As an initial matter, I disagree with Section III of the majority opinion, which resolves no legal issues, but seeks to leave the impression that nude dancing may merely be "low-value" speech entitled to "onlymarginal First Amendment protection." The panel admits that erotic dancing is constitutionally protected but claims that the extent of that protection is unclear, thus implying that it is unnecessary to look too closely at the restrictions on speech at issue in this case. I disagree. In this Circuit, it is clear that nude erotic dancers are entitled to full First Amendment protection for the expressive messages conveyed in their dancing. Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir.1986). I also disagree with the majority that the ten foot set-back at issue in this case is content-neutral as a matter of law. A regulation on constitutionally protected speech is content-neutral only if it is justified without reference to the content of the regulated speech. City ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Kent's ordinance requires that all entertainers perform on a stage at least two feet above the patron seating area, and that no performer may dance any closer than ten (10) feet from any patron. The majority concludes that this law is content-neutral because it is not content-based "on its face." This determination obviously begs the question at issue here: what is the content of the message communicated by the table dancer, as opposed to the stage dancer? If it is the same message—only magnified by proximity—then the majority is correct. If, however, stage dancers and table dancers communicate different expressive content in their respective messages, then summary judgment was improper. Appellants argue that the ordinance on its face bans certain forms of communication because it bars close physical proximity between dancers and patrons. They assert that proximity itself~the distance, or lack thereof, between the dancer and the patron-is integral to the message conveyed by table dancing. This message is entirely different, they contend, than the message conveyed by stage dancers. In support of this contention, appellants proffered the testimony of cultural anthropologist Judith Hanna, a Senior Research Scholar at the University of Maryland. Hanna is the author of four books and approximately 80 scholarly articles on the anthropology of dance as non-verbal communication. She has conducted extensive fieldwork in exotic dance establishments as well as interviews with dancers and patrons. Hanna asserts that table dancers seek to send a message that is entirely different from that sent by stage dancers: The message of the table dancer is personal interest in and understanding of the customer.... The entertainer creates an illusion of concern and availability for the customer and seeks to effect a transformation in the patron's feelings. Some customers get the personal attention of an attractive female who would not otherwise related to them or "give them the time of day;" some customers are reminded of what is to be desired. Hanna concluded that close proximity between the dancer and the patron is an integral and essential part of the message itself. This is so, according to Hanna, not only because of the message of personal interest sent by the dancer's physical presence but also by other nonverbal communication that is only possible in close quarters. Specifically, Hanna testified that "proximity permits *559 eye contact and awareness of indicators of attraction and satisfaction such as the mouth position, eye brightness, pupil dilation and expansion, facial color, breath, perfume, and body odors." Appellants also introduced the declaration of Dr. Edward Donnerstein, the chair of the University of California-Santa Barbara Department of Communications who has studied the impact of distance on audience perceptions of erotic dance performances. Dr. Donnerstein, who was the lead social scientist called to give expert testimony before former United States Attorney General Edwin Meese's Commission on Pornography, concluded that proximity is not merely an incidental component of erotic dance but is integral to the message itself. He concluded that The relational and erotic communication sought to be communicated by erotic dance performance is significantly and substantially effected (sic), reduced, and degraded by the requirement that performers be separated from their intended audience by a minimum distance often (10) feet. Both Hanna and Donnerstein contrasted the message sent by physical closeness with that sent by the distance imposed by stage dancing, which, Hanna testified, transmits an entirely different signal: "coldness and impersonality." Appellants contend, with the support of their experts' declarations, that stage dancing communicates "the remoteness of the 'unreachable' object of desire" through its use of distance. Page 13 Appellants, by producing these declarations, have created a material question of fact regarding whether table dancing is, as the district court and the majority conclude, merely stage dancing at a "louder volume," or whether it is an altogether different form of expression that depends upon proximity, and communicates a different and particular content. To the extent that a reasonable trier of fact might conclude that table dancing and stage dancing are qualitatively distinct forms of expression, the ordinance is itself facially content-based. Moreover, evidence was adduced by appellants that Kent banned proximity precisely because it wants to constrain dancers from doing the very things that according to appellants' experts are essential to the message-chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits. Given the circumstances set forth above, the factual issue created by appellants' expert testimony is one for a jury. It was not appropriate for the district court or this court to substitute its own views regarding the purpose and effect of table dancing and decide as a factual matter the content of the message conveyed by that form of expressive communication. Accordingly, I would reverse the district court's grant of summary judgment. 163 F.3d 545,98 Cal. Daily Op. Serv. 8965, 98 Daily Journal D.A.R. 12,449 Briefs and Other Related Documents (Back to top) • 1997 WL 33574577 (Appellate Brief) Brief of Appellee (Apr. 14, 1997)Original Image of this Document with Appendix (PDF) • 1997 WL 33574578 (Appellate Brief) Brief of Appellant (Mar. 11, 1997)Original Image of this Document with Appendix (PDF) END OF DOCUMENT 19 Pagel 96 F.3d 380 65 USLW 2204, 24 Media L. Rep. 2576,96 Cal. Daily Op. Serv. 6768,96 Daily Journal D.A.R. 11,066 (Cite as: 96 F.3d 380) United States Court of Appeals, Ninth Circuit. Bryan H. CRAWFORD; Jim Atwell, a partnership doing business as Advanced Publications; ISG Communications Inc., a California Corporation; Bold Type, Inc., a California Corporation; Wayne C. Berry, doing business as ZAP Distributors; and Lisa Lascody, Plaintiffs-Appellants, v. Daniel E. LUNGREN, Attorney General, individually and as Attorney General of the State of California; James K. Hahn, individually and as City Attorney for the City of Los Angeles; Willie Williams, Chief of Police, individually and as Police Chief for the City of Los Angeles; Gilbert Garcetti, District Attorney, individually and as District Attorney of the County of Los Angeles; Thomas W. Sneddon, District Attorney, individually and as District Attorney for the County of Santa Barbara, Defendants-Appellees. No. 95-56570. Argued and Submitted July 11, 1996. Decided Sept. 11, 1996. Publishers, vendors, and consumer of adult-oriented publications appealed from order of the United States District Court for the Central District of California, Manuel L. Real, J., holding constitutional a California statute banning sale of "harmful matter" in unsupervised sidewalk vending machines. The Court of Appeals, Fernandez, Circuit Judge, held that statute does not violate First Amendment. Affirmed. Tashima, Circuit Judge, concurred with separate opinion. West Headnotes [1] Federal Courts €=>776 170Bk776 Most Cited Cases Court of Appeals reviews district court's ruling on challenge to constitutionality of state statute de novo. [2] Declaratory Judgment €=>393 118Ak393 Most Cited Cases Court of Appeals reviews decision to grant or deny declaratory relief de novo. [3] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases In assessing constitutionality of regulation that limits time, place, or manner of speech, Court of Appeals must determine whether statute is content-neutral or content-based; if statute is content-based, Court applies strict scrutiny to determine whether statute is tailored to serve compelling state interest and is narrowly drawn to achieve that end, but if statute is content-neutral, Court must determine whether it is designed to serve substantial governmental interest and allows for reasonable alternative avenues of communication. U.S.C.A. Const.Amend. 1. [4] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Principal inquiry in determining whether regulation is content-neutral or content-based, and thus in determining level of scrutiny under First Amendment, is whether government has adopted regulation because of agreement or disagreement with message it conveys. U.S.C.A. ConstAmend. 1. [5] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases As general rule, laws that by their terms distinguish favored speech from disfavored speech on basis of ideas or views expressed are "content-based" and subject to strict scrutiny under First Amendment. U.S.C.A. ConstAmend. 1. [6] Constitutional Law €=>90.4(6) 92k90.4(6) Most Cited Cases [6] Obscenity €=>2.5 281k2.5 Most Cited Cases California statute banning sale of "harmful matter" in unsupervised sidewalk vending machines was content-based regulation, and thus subject to strict Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 scrutiny under First Amendment; to determine whether particular publication was "harmful" under statute, state was necessarily required to examine content of message that was conveyed, predict reaction of young viewers, and make judgment only on that basis, and statute was designed to prevent materials from provoking harmful reactions in minor readers, not to remedy potential secondary effects of the "harmful matter." U.S.C.A. Const. Amend. 1; West's Ann.Cal.Pena! Code §§ 313(a),313.1(c)(2). [7] Constitutional Law €=90(1) 92k90(l) Most Cited Cases Content-based regulations are presumptively unconstitutional; nevertheless, finding that regulation is content-based does not foreclose possibility that it is constitutional. U.S.C.A. ConstAmend. 1 . [8] Constitutional Law €=90(3) 92k90(3) Most Cited Cases Government may regulate content of constitutionally protected speech in order to promote compelling interest if it chooses least restrictive means to further articulated interest. U.S.C.A. Const.Amend. 1. [9] Constitutional Law €=90.4(6) 92k90.4(6) Most Cited Cases [9] Obscenity €=2.5 281k2.5 Most Cited Cases California legislature was not required to make specific findings as to whether statute banning sale of "harmful matter" in unsupervised sidewalk vending machines was least restrictive means of achieving state's compelling interest in shielding minors from influence of adult-oriented literature, for purposes of First Amendment strict scrutiny review. U.S.C.A. ConstAmend. 1; West's Ann.Cal.Penal Code §§3 13 (a), [10] Constitutional Law €=90(3) 92k90(3) Most Cited Cases If plaintiff who is contesting constitutionality of content-based regulation or court can imagine and allude to other means of furthering state's articulated interest, state has ultimate burden of showing that means in question are not effective. U.S.C.A. Const. Amend. 1. [11] Constitutional Law €=90.4(6) 92k90.4(6) Most Cited Cases [11] Obscenity €=2.5 281k2.5 Most Cited Cases California statute banning sale of "harmful matter" in unsupervised sidewalk vending machines does not violate First Amendment; state has compelling interest in shielding minors from influence of adult-oriented literature, and legislation is least restrictive means of achieving that interest, while still allowing access to adults, despite claim that placement of warning labels on newsracks and banning sales within reasonable distance from schools were less burdensome means of effectuating state's goals. U.S.C.A. Const.Amend. 1; West's Ann.Cal.Penal Code §§ 313(a), 313.1(c)(2). *382 Stanley Fleishman, Fleishman, Fisher & Moest, Los Angeles, California, for plaintiffs-appellants. Christopher C. Foley, Deputy Attorney General, Los Angeles, California, for defendant-appellee Daniel E. Lungren, individually and as Attorney General of the State of California. Marjorie Heins, ACLU Foundation, New York City, and Cathy E. Crosson, Indiana University School of Law, Bloomington, Indiana, for amici Feminists for Free Expression and Califomians Against Censorship Together. James V. Lacy, Laguna Niguel, California and Gary G. Kreep, Escondido, California, for amici Assemblyman Bill Morrow, the United States Justice Foundation, and Help Oppose Pornography and Exploitation. Janet M. Larue, Santa Ana, California, for amici National Law Center for Children and Families," Enough is Enough!" Campaign, National Coalition for the Protection of Children and Families, and Family Research Counsel. Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CV-94-08343- MLR. Before: FERNANDEZ and TASHIMA, Circuit Judges, and MERHIGE, [FN*] District Judge. FN* The Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation. Opinion by Judge FERNANDEZ; Concurrence by Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 3 Judge TASHIMA. FERNANDEZ, Circuit Judge: Publishers, vendors, and one consumer of adult-oriented publications appeal the district court's order holding constitutional a California statute that bans the sale of "harmful matter" in unsupervised sidewalk vending machines. They contend that the statute is facially invalid because it discriminates against the sale of certain publications on the basis of content without being narrowly tailored to achieve a compelling state interest. We affirm. BACKGROUND On January 1, 1995, California banned the sale of certain "harmful matter" in public *383 vending machines. The statute, California Penal Code section 313. l(c)(2), provides: Any person who knowingly displays, sells, or offers to sell in any coin- operated vending machine that is not supervised by an adult and that is located in a public place, other than a public place from which minors are excluded, any harmful matter, as defined in subdivision (a) of Section 313, shall be punished as specified in Section 313.4. Section 313(a) defines "harmful matter" as: matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter 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. The statute also provides certain defenses to the crime described in 313.1 (c)(2). [FN1 ] Penalties for violating the law are substantial, including a fine of not more than $2000 or imprisonment for as much as one year, or both for the first conviction. Cal.Penal Code § 313.4. Subsequent violations can lead to felony convictions. Id. FN1. Those defenses are described in CaLPenal Code § 313.1(h) as follows: It shall be a defense in any prosecution for a violation of paragraph (2) of subdivision (c) that the defendant has taken either of the following measures to restrict access to the harmful matter by persons under 18 years of age: (1) Required the person receiving the harmful matter to use an authorized access or identification card to the vending machine after taking reasonable measures to ascertain that the applicant was 18 years of age or older and has established a procedure to immediately cancel the card of any person after receiving notice, in writing or by telephone, that the code has been lost, stolen, or used by persons under the age of 18 years or that the card is no longer desired. (2) Required the person receiving the harmful matter to use a token in order to utilize the vending machine after taking reasonable measures to ascertain that the person was 18 years of age or older. The constitutionality of the statute was challenged by Bryan Crawford and Jim Atwell, who operate a partnership known as Advanced Publications which produces The Sun; ISO Communications, Inc., which produces New Reality and Hollywood Play dates; Bold Type, Inc., which produces Spectator; Wayne Berry, who operates ZAP Distributors, a newsrack company; and Lisa Lascody, who is a consumer. [FN2] They requested injunctive and declaratory relief because, they claimed, the statute will likely make it commercially infeasible for the publishers to distribute their materials through vending machines, and the publishers have had great difficulty finding other outlets willing to distribute their materials. [FN3] Thus, they asserted, the law will ultimately interfere substantially with the ability of adults to purchase the periodicals, and substantially burden the publishers' ability to distribute their materials. That, they said, violates the First Amendment to the United States Constitution. FN2. They will be collectively referred to as Crawford. FN3. They did not challenge the definition of "harmful matter" in § 313(a) nor did they assert that their publications are not harmful matter. The publications in question do contain a large quantity of highly sexually oriented pictorial and written matter which is not, however, obscene. We will sometimes refer to them as adult-oriented. On December 19, 1994, the district court granted a temporary restraining order against the enforcement of the statute and an order to show cause why a preliminary injunction should not issue. Then, on January 6, 1995, the district court issued a preliminary injunction restraining enforcement of the statute Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 pending trial. [FN4] FN4. Those sued and restrained were Daniel E. Lungren, the Attorney General of the State of California, and a number of officials of local California entities. They are collectively referred to as Lungren. After trial, however, the district court concluded that the statute was not content-based and upheld it as constitutional. In finding the statute to be content-neutral, the court did not provide any explicit explanation, but did cite Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440,49 L.Ed.2d 310 (1976), and *3S4City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Those citations suggest that the court understood the statute to be content-neutral because it concluded that the statute regulated the material on the basis of its secondary effects, rather than on the basis of its impact on the reader. It then held that California had a compelling interest "in shielding minors from the influence of literature that is not obscene by adult standards," and that reasonable alternative means are available for distribution and receipt of the publications. In the alternative, it held that the statute satisfied the constitutional standards applicable to content-based regulations because it was narrowly tailored to serve a compelling state interest. Consequently, the district court dissolved the preliminary injunction and denied the prayer for a permanent injunction. This appeal followed. JURISDICTION and STANDARDS OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291. [1][2] We review the district court's ruling on a challenge to the constitutionality of a state statute de novo. NCAA v. Miller, 10 F.3d 633, 637 (9th Cir.1993),cert.denied, 511 U.S. 1033,1 HS.Ct. 1543, 128 L.Ed.2d 195 (1994). We also review the decision to grant or deny declaratory relief de novo. Ablang v. Reno, 52 F.3d 801, 803 (9th Cir. 1995) (" 'Although the decision to grant or deny declaratory relief... is a matter initially committed to the discretion of the district court, on appeal we exercise our own 'sound discretion' to determine the propriety of the district court's grant or denial of declaratory relief.' ") (citation omitted) (quotation omitted), cert, denied, 516 U.S. 1043, 116 S.Ct. 701, 133 L.Ed.2d 658 (1996); see also Tashima v. Administrative Office of the United States Courts, 967 F.2d 1264, 1273 (9th Cir. 1992); Fireman's Fund Ins. Co. v. Ignacio, 860 F.2d 353, 354 (9th Cir. 1988) (per curiam). DISCUSSION I. First Amendment [3] Crawford contends that the statute violates the First Amendment right to free expression because it limits access to a forum based on the content of the message. In assessing the constitutionality of a regulation that limits the time, place, or manner of speech, we must determine whether the statute is content-neutral or content-based. See Tollis, Inc. v. San Bernardino County, 827 F.2d 1329, 1332 (9th Cir. 1987). If the statute is content-based, we apply strict scrutiny to determine whether the statute is tailored to "serve a compelling state interest and is narrowly drawn to achieve that end." Simon & Schuster, Inc. v. New York Crime Victims Bd, 502 U.S. 105, 118, 112 S.Ct. 501, 509, 116 L.Ed.2d 476 (1991) (quotation omitted). If the statute is content-neutral, we must determine whether it "is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S.Ct. 925,930, 89 L.Ed.2d 29 (1986). 1. Content-Based Regulation [4][5][6] The "principal inquiry" in determining whether a regulation is content-neutral or content-based " is whether the government has adopted [the] regulation ... because of [agreement or] disagreement with the message it conveys." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, —, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994) (quotation omitted) (second alteration in original). "As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based." Id. That perfectly defines the law at hand because it regulates on the basis of whether the content of a publication will be "harmful" to minors. To determine whether a particular publication is "harmful" under the statute, the state "must necessarily examine the content of the message that is conveyed," predict the "reaction" of young viewers, and make a judgment only on that basis. Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395,2403, 120 L.Ed.2d 101 (1992) (quotations omitted). That the statute affects publications solely on the basis of content, however, is not quite *38S the end of the inquiry. Some regulations which are seemingly content-based are analyzed as content-neutral Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS regulations if the government shows that they are justified by a desire to eliminate a "secondary effect"—an undesirable effect only indirectly related to the content or communicative impact of the speech. See City ofRenton, 475 U.S. at 47-49, 106 S.Ct. at 929-30. The Supreme Court has defined secondary effects as being correlated with, but not directly a consequence of, the impact of the speech. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746,2754, 105 L.Ed.2d 661 (1989) (in the area of sound amplification: "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."); see also City ofRenton, 475 U.S. at 48, 106 S.Ct. at 929 (some regulations of businesses that purvey sexually explicit materials are treated as content- neutral because they "are justified without reference to the content of the regulated speech"); cf. Forsyth County, 505 U.S. at 133-34, 112 S.Ct. at 2403 (regulation based on reaction to speech is not content-neutral). The Court has given examples of legitimate secondary effects, including "prevention of crime, maintenance of property values, and protection of residential neighborhoods." Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988); see also City ofRenton, 475 U.S. at 50-51,106 S.Ct. at 930-31; Young. 427 U.S. at 71-72, 96 S.Ct. at 2453 (Stevens, J., writing for plurality); Tollis, 827 F.2d at 1332. Section 313.1(c)(2), however, is not designed to remedy potential secondary effects of the "harmful matter." The statute is based only on the State's determination that reading the materials at issue will be "harmful" to minors. The statute, therefore, does not focus on the secondary impact of the speech, but rather on the direct impact of the speech on part of its potential audience. The statute is designed to prevent the materials from provoking harmful reactions in minor readers. That justification does not fall within the parameters of the secondary effects doctrine. As the Court has explained: Regulations that focus on the direct impact of speech on its audience present a different situation. Listeners' reactions to speech are not the type of "secondary effects" we referred to in Renton. To take an example factually close to Renton, if the ordinance there 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 have been appropriate. Boos, 485 U.S. at321,108 S.Ct. at 1163-64. Like the hypothetical regulation described in Boos, section 313.1 (c)(2) is concerned with psychological damage to readers and, therefore, "targets the direct impact of a particular category of speech, not a secondary feature that happens to be associated with that type of speech." Id.; see Berry v. City of Santa Barbara, 40 Cal.App.4th 1075, 1084, 47 Cal.Rptr.2d 661, 666-67 (1995) (ordinance that distinguishes between publications based solely upon whether they contain material deemed "harmful" to minors is content-based regulation subject to strict scrutiny because its purpose is not to mitigate secondary effects such as traffic congestion or loitering, but to mitigate the perceived effects of the contents of the publications on minor readers); Sebago, Inc. v. City ofAlameda, 211 Cal.App.3d 1372, 1384, 259 Cal.Rptr. 918, 923 (1989) ("The second aim, that of restricting the access of minors to adult newspapers, concerns direct listener reaction to speech and is thus content-based."); see also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429-30, 113 S.Ct. 1505, 1517,123 L.Ed.2d 99 (1993) (city cannot exclude newsracks just because they dispense commercial speech). Consequently, we must analyze this statute as a content-based regulation, but, as we will demonstrate, the statute survives strict scrutiny. 2. Strict Scrutiny [7][8] Content-based regulations are presumptively unconstitutional. R.A. V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992). Nevertheless, a finding that a regulation is content- based does not foreclose the possibility that it is constitutional. See *386Simon & Schuster, 502 U.S. at 116-17,112 S.Ct. at 508-09. "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." Sable Communications of California, Inc. v. FCC, 492 U.S. 115,126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989); see also Simon & Schuster, 502 U.S. at 118, 112 S.Ct. at 509. There is no dispute that the aim of the statute is to shield minors from the influence of adult-oriented literature by limiting minors' access to the publications. The Court has recognized that there is "a compelling interest in protecting the physical and psychological well-being of children" and that "[t]his interest extends to shielding minors from the influence of literature that is not obscene by adult standards." Sable Communications, 492 U.S. at 126, 109 S.Ct. at 2836; see also Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, —, 116 S.Ct. 2374, 2391, 135 L.Ed.2d 888 (1996); New York v. Ferber, 458 U.S. 747, 756-58, 102 S.Ct. 3348, 3354- 55, 73 L.Ed.2d 1113 (1982); Ginsberg v. New York, Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 390 U.S. 629, 639-40, 88 S.Ct. 1274, 1280-81, 20 L.Ed.2d 195 (1968). However, "[i]t is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Sable Communications, 492 U.S. at 126, 109 S.Ct. at 2837. To pass constitutional muster, content-based restrictions must be the least restrictive alternative available. They must be narrowly tailored to achieve that end. See Denver Area, 518 U.S. at —, 116 S.Ct. at 2391; Ward, 491 U.S. at 798 n. 6,109 S.Ct. at 2758 n. 6 (distinguishing "least restrictive alternative" test of Boos from the less strict test for content-neutral regulations); Boos, 485 U.S. at 329,108 S.Ct. at 1168; a content-based regulation was "not narrowly tailored; a less restrictive alternative is readily available," (citing Wygantv. Jackson Bd. ofEduc., 476 U.S. 267, 280 n. 6, 106 S.Ct. 1842, 1850 n. 6, 90 L.Ed.2d 260 (1986) (plurality opinion)). [9] Crawford asserts that the State has failed to show that the means used were the least restrictive. The resolution of that issue is made somewhat more difficult because, as Crawford points out, the California legislature did not make any specific findings. Crawford suggests that it must. We disagree. Although the courts have been less than pellucid when handling the narrowness issue, they have never said that the legislature must make findings. Findings, or evidence presented at trial, will be helpful and may even be a desideratum. Their absence can make it much more difficult to determine whether a proposed means is, or is not, the least restrictive. But even in the absence of findings or specific evidence, courts can and will rely on common sense, other statutes, and other cases when it becomes time to consider claims in this area. [10] We agree that if a plaintiff or the court can imagine and allude to other means, the state has the ultimate burden of showing that the means in question are not effective. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 3069 n. 5, 82 L.Ed.2d 221 (1984) ("[I]t is common to place the burden upon the Government to justify impingements on First Amendment interests...."); see also 44 Liquormart, Inc. v. Rhodelsland, 517U.S. 484, —, 116 S.Ct. 1495, 1509, 134 L.Ed.2d 711 (1996) (hi commercial speech area, the state bears the burden of showing that the regulation will advance its interest materially) (Stevens, J., writing for plurality); Rubin v. Coors Brewing Co., 514 U.S. 476, —, 115 S.Ct. 1585, 1592, 131 L.Ed.2d 532 (1995) (same); cf. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981) (hi unemployment benefit area, state must justify effect on religious liberty by showing that the means used were the least restrictive). But the courts have allowed discharge of that burden, or found a lack of discharge, hi various ways. In City ofRenton, for example, the City had not relied upon studies that considered conditions within its borders. However, it had relied upon studies in another city which were summarized in another case. The Supreme Court found that to be sufficient. See 475 U.S. at 50-52,106 S.Ct. at 930-31. And in Denver Area, the Supreme Court asked a *387 number of questions testing the breadth of the statute in issue. The Court did not hold that the mere asking of the questions was enough to overturn the statute, but it did go on to strike the statutory provision because "the answers to the questions are not obvious." 518 U.S. at —, 116 S.Ct. at 2392. In that same case, the plaintiffs pointed out that a statute regulating a somewhat different area-unleased cable channels rather than leased ones—indicated that less restrictive means were probably available, and nothing in the record before the Court or Congress indicated that they were not. Id. at , 116 S.Ct. at 2392-93. Similarly, in Sable Communications, the Court did refer to Congressional findings and found that the findings did not support the statute. 492 U.S. at 129,109 S.Ct. at 2838. -However, the Court noted that the findings did not bind it anyway. Id. The Court also pointed out that other studies it had available satisfied it that the means were not the least restrictive. Id. at 28-30, 109 S.Ct. at 2838. Justice Scalia added that he agreed, but that this was a value judgment and that "neither due process nor the First Amendment requires legislation to be supported by committee reports, floor debates, or even consideration, but only by a vote." Id. at 133, 109 S.Ct. at 2840 (Scalia, J., concurring). As Justice Scalia suggested, common sense and other materials can lead judges to different conclusions. While legislative findings, evidence, and the like may help, the answers may differ. One need only read the fractionated opinions in Denver Area to be assured of that. There may be (nay, there is) a cosmic right answer, but it may be hidden from mere earthlings—even judges. Of course, when past history and our common sense indicate that some particular exercise of First Amendment rights does not pose any particular danger, or that a restriction is inappropriate, we have required evidence to demonstrate the contrary. See, e.g., Wileman Bros. & Elliott, Inc. v. Espy, 58 F.3d 1367, 1378-79 (9th Cir.1995) (where there was no proof that forced generic advertising was more efficacious than private advertising, the forcing regulation was stricken), cert, granted, 517 U.S. 1232, 116 S.Ct. 1875, 135 L.Ed.2d 171 (1996); Col-Almond, Inc. v. VnitedStates Dep't ofAgric., 14 F.3d 429, 439-40 (9th Cir.1993) Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? (same; also, where we could see no logical justification for certain restrictions and the evidence did not justify them, the regulations fell); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1227-28 (9th Cir. 1990) (even though least restrictive means not required, we could not see why the restriction in question was needed, so the absence of credible evidence meant that the restrictions must fall). [11] In the case at hand, the legislation on its face appears to be minimally restrictive if its ends are to be accomplished at all. In fact, it goes to great lengths to spell out ways that will keep children out of the materials in question, while still allowing access to adults. In fashioning the newsrack statute, California balanced the competing interests of protecting children from the harmful effects of consuming adult-oriented newspapers with the interest of adults in having access to those materials. Cf. Alliance for Community Media v. FCC, 56 F.3d 105, 124 (D.C.Cir.1995) (en bane), affd in part, rev'd in part, Denver Area, 518 U.S. at —, 116 S.Ct. at 2398. In order to achieve that balance, California had to mold a statute which would protect against the threat that children, without adult supervision, would purchase harmful materials from unattended newsracks. Yet, it could not preclude adults from obtaining the materials. The statute is effective in limiting children's exposure and has a narrow focus, which still allows adults to purchase the materials from alternative sources or in alternative ways. It tightly fits the State's compelling interest. Given the unusually easy availability of materials in these unsupervised newsracks, we find it difficult to see how the State could have fashioned a statute that accomplished its goals while leaving the newsracks themselves untouched. No less burdensome means has been suggested which would still effectuate the goals for which the statute was designed. Crawford suggests the alternatives of placing warning labels on the newsracks, and banning the sale of adult-oriented newspapers within a reasonable distance from schools. Those solutions, however, would not succeed in eliminating or even *388 addressing the State's concern that children will purchase harmful materials from unattended newsracks; there is no reason to think that those solutions would be even marginally effective ways of meeting the State's compelling interest. Placing warning labels might deter some children, but would certainly not deter (and could even attract) the bulk of them. Although the State presented no evidence to that effect, we hardly think that evidence is required. A person who purchases from a newsrack is perfectly anonymous. It borders on the absurd to say that a youngster would be deterred by an announcement which said something like "[This publication] is highly explicit and is intended for adults over the age of 21 only." As a California Court of Appeal has said in a similar context, "This, of course, assumes ... that the minor will heed the warning. We cannot indulge this assumption." Berry, 40 Cal.App.4th at 1085, 47 Cal.Rptr.2d at 667. Geographic restrictions are no more efficacious. Placing newspaper racks away from schools would at best force children to go somewhat out of their way to obtain illicit materials. Indeed, the assumption that children are only to be found around schools or at home is ludicrous in today's society, and it is questionable that it even had much validity in less "sophisticated" times than these. Nor would it help to place the racks in a less frequented area or in an area frequented by those who like adult-oriented materials. Todays children, at least in California, are very mobile. The less frequented the area is, the more anonymous these already very anonymous purchases can become. For a child, who might not want to be seen by another's prying eyes, the publications would become even more attractive if they were away from ordinary neighborhoods and school zones. In that regard, it is interesting to note that the California legislature was aware of an instance where a geographic restriction was attempted by a California city. The city's attempt failed in part because, as a California Court of Appeal said: Additionally, the relationship between the ordinance and the asserted governmental interest is so tenuous as to fall short of constitutional sufficiency.... The ordinance merely moves the newsracks away from residential areas. Any determined teenager can seek out the relocated newsracks. As Sebago points out, it is just as likely, if not more likely, that a minor will purchase an adult newspaper from a newsrack far away from the watchful eyes of parents and neighbors. Sebago. 211 Cal.App.3d at 1386,259 Cal.Rptr. at925 (citation omitted). No doubt the legislature relied upon that wise analysis. [FN5] We do too, but we add one further note. This is not a method of purveyance where only "a few of the most enterprising and disobedient young people" can break through some sophisticated electronic system designed to exclude them. Cf. Sable Communications, 492 U.S. at 130, 109 S.Ct. at 2839; see also Denver Area, 5 \ 8 U.S. at —, 116 S.Ct. at 2393. Any youth with a few coins can access the materials in question. FN5. No doubt the legislature also recognized that the analysis was suggested by a plaintiff, Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS who wished to have the ordinance stricken. Interestingly enough, plaintiffs in this case raise the geographical issue as a method of striking this legislation, but for the opposite reason. Moreover, the statute is not prohibitively invasive of any adult's interest in obtaining the materials. The statute provides two defenses which allow for the retention of newsracks; and, although those defenses may impose some economic burden, they do enable the publishers to continue distributing their publications on streets. Also, the publications can be made available through other distributors if the price and salability of the publications make them profitable. See Denver Area, 518 U.S. at —, 116 S.Ct. at 2387 (Breyer, J. writing for plurality). If, as Crawford suggests, merchants do not wish to carry these materials, that is no fault or business of the State. See id. at —, 116 S.Ct. at 2383 (Breyer, J. writing for plurality); City of Renton, 475 U.S. at 54, 106 S.Ct. at 932 (the fact that purveyors of materials must "fend for themselves" does not raise a First Amendment problem). Furthermore, the parties stipulated that adult-oriented publications of a similar ilk are readily available *389 to adults in libraries and other easily accessed locations. The harm in question here is obvious, and Crawford points to no other viable method to avoid it. Given Crawford's interest in suggesting other possibilities and the fact that we cannot imagine others ourselves, we are satisfied that the statute is narrowly tailored to protect children without depriving adults. [FN6] FN6. Crawford additionally argues that the statute violates the First Amendment because it lacks a requirement that the seller have knowledge that the materials sold are "harmful." However, this ground was not argued to the district court. We decline Crawford's invitation to consider the argument for the first time on appeal. See International Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401,1404 (9th Cir. 1985) (court will not review issue not raised in district court except in special circumstances such as to prevent manifest injustice). For the same reason, we decline to consider Crawford's equal protection and due process claims. Although the complaint made a passing reference to those claims, the argument is newly minted. The district court is not merely a way station through which parties pass by arguing one issue while holding back a host of others for appeal. II. The Preliminary Injunction Lungren argues that the district court erred when it ordered the California Attorney General to immediately notify all district attorneys and sheriffs to obey the preliminary injunction which it had issued. The injunction did not name them, but the court decided that they were required to obey it anyway and that Lungren had authority over them. Lungren asserts that the district court erred because the Attorney General lacked the power to direct local officials to obey the order. We, however, lack the authority to make that determination because the preliminary injunction is no longer in force. We can offer no remedy; the issue is moot. See American Casualty Co. v. Baker, 22 F.3d 880, 895-96 (9th Cir. 1994) (an appeal is moot if the court cannot fashion any type of effective relief). CONCLUSION We came upon this case at the confluence of two streams of concern which flow through our polity—our concern for the protection of our First Amendment freedoms and our concern for the protection of our children. At such a confluence, we expect to hear a roar rather than a purr. So it is here. But although the confluence may be roily, the answers to the issues presented by this case are not wholly obscure. The State's compelling need to protect children from these publications has been satisfied by the use of a statute which accomplishes the purpose with a precision that protects our First Amendment interests. Neither concern has been sacrificed to the needs of the other. In fine, the statute withstands the attacks made upon it today. AFFIRMED. TASHIMA, Circuit Judge, concurring: I concur in the result and concur generally in the reasoning employed to reach it. I write separately only to add one observation. In the sensitive area of First Amendment strict scrutiny, contrary to the teaching of all conventional wisdom on the scope of judicial review, judges sometimes are required to rely "on then" own instinct or experience," Geary v. Renne, 911 F.2d 280, 305 (9th Cir.1990) (en bane) (Rymer, J., dissenting), vacated and remanded, 501 U.S. 312, 111 Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 9 S.Ct. 2331, 115 L.Ed.2d 288 (1991), in making that strict scrutiny analysis. This is such a case. As our opinion points out, the law does not require, and this record does not provide, any evidence that less restrictive means are unavailable to meet the perceived problem of newsrack purchases of adult literature by minors. Thus, our judgment that no less restrictive means is available to achieve that compelling interest, despite the absence of any evidence in the record to support that "finding," is truly instinctive and experiential. We acknowledge as much by our references to our own judgment on this score as "common sense" or "a value judgment" or as compelled because "we cannot imagine" otherwise. I hesitate to add, however, that legislatures should be mindful that they ought not be content always to rely on the instinct and experience of judges to come to the same *390 conclusions as they have in the absence of any legislative record. 96 F.3d 380, 65 USLW 2204,24 Media L. Rep. 2576, 96 Cal. Daily Op. Serv. 6768,96 Daily Journal D.A.R. 11,066 Briefs and Other Related Documents (Back to top) • 1996 WL 33414739 (Appellate Brief) Appellee Daniel E. Lungren's Brief (Apr. 09, 1996)Original Image of this Document (PDF) • 1996 WL 33414830 (Appellate Brief) Appellants' Brief (Mar. 01,1996)Original Image of this Document (PDF) END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 20 Pagel 99 Cal.App.4th 880 121 Cal.Rptr.2d 729, 2 Cal. Daily Op. Serv. 5851, 2002 Daily Journal D.A.R. 7401 (Cite as: 99 Cal.App.4th 880) DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent; RENEE VICARY, Real Party in Interest. No. E030224. Court of Appeal, Fourth District, Division 2, California. June 26, 2002. SUMMARY The Department of Alcoholic Beverage Control suspended the liquor license of the owner of a bar that offered topless entertainment, finding violations of Cal. Code Regs., tit. 4, § 143.3, in that dancers touched then- bare breasts during dances and exposed their breasts while they were within six feet of patrons. The Alcoholic Beverage Control Appeals Board reversed the decision, finding that § 143.3 could not be constitutionally applied to the expressive conduct of the dancers. The Court of Appeal annulled the order of the board and remanded to the board for reconsideration of the penalty. The court preliminarily held that the department's appointment of its employee to act as administrative law judge did not violate owner's due process rights. The court held that Cal. Code Regs., tit. 4, § 143.3, is not unconstitutional. Section 143.3 does not regulate or prohibit nude or erotic dancing in general; it is only an attempt to reduce the problems caused by such dancing in front of customers whose inhibitions and ability to control their impulses have been weakened by the consumption of liquor. This does not offend the Constitution. (Opinion by Hollenhorst, Acting P. J., with McKinster and Gaut, JJ., concurring.) HEADNOTES Classified to California Digest of Official Reports (la, Ib, Ic) Administrative Law § 42~Adjudication-Due Process— Liquor License Penalty Proceeding—Administrative Law Judge Employed by Department of Alcoholic Beverage Control:Constitutional Law § 109--Due Process—Hearing. In a Department of Alcoholic Beverage Control proceeding to suspend the liquor license of an owner of a bar, the department's appointment of its employee to act as administrative law judge (ALJ) did not violate the owner's due *881 process rights. Although Gov. Code, § 11502, provides that ALJ's must be on the staff of the Office of Administrative hearings, Gov. Code, §§ 11415.10 and 11415.20, limit this rule when a specific statute applies to an agency. The ALJ acted under the authority of Bus. & Prof. Code, § 24210, which allows the department to delegate the power to hear and decide to an ALJ appointed by the director. The statute previously required ALJ's to be appointed pursuant to the Administrative Procedures Act, and thus the current version, which omits any reference to the act, is intended to permit the department to establish a staff of ALJ's. Further, that the ALJ was employed by the department did not lead to the conclusion that he was biased. The fact that the agency or entity holding a hearing also pays the adjudicator does not automatically require disqualification. ALJ's are protected by civil service laws against arbitrary or retaliatory dismissal, and thus they are not influenced to rule for their employer. Nor was there any other factor indicating this ALJ was biased. (2) Statutes § 52—Construction—General and Specific Provisions. Where two statutes consider the same subject matter, the more specific prevails over the more general. However, this principle only applies if the two statutes cannot be reconciled. (3) Administrative Law § 42—Adjudication—Due Process. Due process applies to administrative proceedings as well as to judicial proceedings. However, at least in the administrative context, all that is required is that the hearing officer or other decision maker be a reasonably impartial, noninvolved reviewer. (4a, 4b, 4c) Alcoholic Beverages § 7—Regulations-Validity- Restrictions on Erotic Entertainment in Establishment Selling Alcohol:Constitutional Law § 55—First Amendment—Freedom of Expression. Cal. Code Regs., tit. 4, § 143.3, which places certain restrictions on erotic entertainment in establishments Copr. © Bancroft-Whitney and West Group 1998 Page 2 selling alcoholic beverages, is not unconstitutional. Thus, the owner of a bar that offered topless entertainment was subject to penalties by the Department of Alcoholic Beverage Control, where there were violations of § 143.3, in that dancers touched then- bare breasts during dances and exposed their breasts while they were within six. feet of patrons. Although nude dancing is covered by U.S. Const., 1st Amend., it falls only within the outer ambit of protection, and if a regulation is directed at genuine secondary effects of the regulated conduct, the regulation is content neutral. The state is authorized under the police power to enact regulations affecting public health and morality. The adoption of § 143.3 was supported by ample evidence of the deleterious effects inherent in *882 the combination of alcoholic beverages and explicitly erotic performances; regulation of performances will therefore logically reduce the negative secondary effects and thus further the governmental interest. Further, the governmental interest is not related to the suppression of any particular expression or expression in general. Finally, § 143.3 regulates conduct, and any incidental effect on the expressive element of nude dancing is de minimis. Section 143.3 does not regulate or prohibit nude or erotic dancing in general; it is only an attempt to reduce the problems caused by such dancing in front of customers whose inhibitions and ability to control their impulses have been weakened by the consumption of liquor. [See 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 327; West's Key Number Digest, Constitutional Law €=> 90.4(5), West's Key Number Digest, Intoxicating Liquors €=> 15.] (5) Alcoholic Beverages § 1--Regulation by State. There is no inherent right to sell intoxicating liquors. The liquor business is fraught with danger to the community, and it may therefore be either entirely prohibited or permitted under such conditions as are prescribed by the regulatory agency. Once granted, a license may be revoked or suspended for the protection of the public welfare and morals. Thus, the state may properly regulate establishments that sell alcoholic beverages to patrons to protect the public interest in a safe and relatively seemly environment. (6) Constitutional Law § 55--First Amendment—Freedom of Expression—Erotic Entertainment at Establishment Selling Alcohol. In determining the effects on constitutionally protected conduct of a city's restriction on erotic entertainment at establishment selling alcohol, the city need not conduct its own study regarding these effects. It may rely on evidence 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. COUNSEL Bill Lockyer, Attorney General, Dennis W. Dawson and Chris A. Knudsen, Deputy Attorneys General, for Petitioner. No appearance for Respondent. Roger Jon Diamond for Real Party in Interest. *883 HOLLENHORST, Acting P. J. Real party in interest Renee Vicary (Vicary) is the proprietor of Angels Sports Bar, which offers topless entertainment. The bar is licensed to serve alcoholic beverages and accordingly is supervised by petitioner Department of Alcoholic Beverage Control (Department). During an investigation, Department investigators observed dancers employed by Vicary at the bar touching and fondling their bare breasts during dances. Other dancers were observed exposing one or more breasts while sitting or standing within six feet of patrons. The Department thereafter filed an accusation alleging that Vicary s employees had seven times violated title 4, section 143.3, subdivision (l)(b) ("touching, caressing or fondling of the breast, buttocks, anus or genitals") of the California Code of Regulations, [FN1 ] and had once violated title 4, section 143.3, subdivision (2) of the California Code of Regulations, which prohibits the exposure of breast or buttock unless the dancer is on a raised stage at least six feet from patrons. FN1 In accordance with the practice of the parties, we will refer to this regulation as "Rule 143.3." At the scheduled hearing, Vicary first raised a constitutional challenge to the power of the administrative law judge (ALJ), an employee of the Department, to hear the case. This challenge was rejected and the hearing proceeded. The ALJ sustained all counts of the accusation and a license suspension of 30 days was imposed. Vicary duly appealed. (Cal. Const., art. XX, § 22; Bus. & Prof. Code, § 23081.) The Alcoholic Beverage Control Appeals Board (Board) reversed the decision of the ALJ not on factual grounds, but on the basis that Rule 143.3 could not be Copr. © Bancroft-Whitney and West Group 1998 PageS constitutionally applied to the arguably "expressive" conduct of the dancers. The Department sought judicial review from this court. (Bus. & Prof. Code, § 23090.) We issued a writ of review, and now annul the decision of the Board. Discussion A. (la) We first address the threshold issue of the ALJ's legal power and the propriety of his employment as a decision maker. Vicary argues that he was not selected in conformity with the Administrative Procedures Act, *884 specifically Government Code section 11502; [FN2] further, that because he was an employee of the Department, his implicit bias deprived her of due process. Neither contention has merit. FN2 All further statutory references will be to the Government Code unless otherwise indicated. Section 11502, subdivision (a), provides that "[a]ll hearings of state agencies required to be conducted under this chapter shall be conducted by administrative law judges on the staff of the Office of Administrative Hearings." However, subdivision (a) of section 11501 qualifies this requirement by stating: "This chapter applies to any agency as determined by the statutes relating to that agency." (Italics added.) Here, the ALJ acted under the authority of Business and Professions Code section 24210, which provides in subdivision (a) that "[t]he department may delegate the power to hear and decide to an administrative law judge appointed by the director." As petitioner points out, this statute was amended in 1994 to delete the existing provision that matters be heard pursuant to the Administrative Procedures Act statutes, and instead to empower the director of the Department to appoint ALJ's. Furthermore, sections 11415.10 and 11415.20 clearly confirm that "[t]he governing procedure by which an agency conducts an adjudicative proceeding is determined by the statutes and regulations applicable to that proceeding," and that "[a] state statute... applicable to a particular agency ... prevails over a conflicting or inconsistent provision of this chapter." [FN3] (2) These provisions make explicit the applicability of the rule that where two statutes consider the same subject matter, the more specific prevails over the more general. (San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 CaUth 571, 577 [7 Cal.Rptr.2d 245, 828 P.2d 147].) [FN4] FN3 Section 11415.10 goes on to further clarify, if further clarification is needed, that "[i]f no other governing procedure is provided by statute or regulation, an agency may conduct an adjudicative proceeding under the administrative adjudication provisions of the Administrative Procedure Act." FN4 It is true that the principle only applies if the two statutes cannot be reconciled. (Garcia v. McCutchen (1997) 1.6 CaUth 469,478 [66 Cal.Rptr.2d 319, 940 P.2d 906].) However, Business and Professions Code section 24210, which allows the director to appoint ALJ's, cannot be reconciled with Government Code section 11502's requirement that administrative hearings be held before an ALJ on the staff of the Office of Administrative Hearings. Thus, the rule cited in San Francisco Taxpayers Assn. v. Board of Supervisors, supra, 2 Cal.4th at page 577, applies. (1 b) Vicarys assertion that Business and Professions Code section 24210 merely authorizes the director of the Department to select an ALJ from the staff of the Office of Administrative Hearings to hear a particular case is without merit. This was the procedure under the previous version of *88S the statute, and its express references back to the Administrative Procedures Act. The new version must have been designed to accomplish some alteration in procedure; to construe substantial changes in language as effecting no change would be absurd. We think it obvious that the intended change was to permit the director to establish a staff of Department ALJ's. [FN5] The new version provides that the Department may delegate its powers to an ALJ "appointed by the director," and in the context of state employment, "appointed" is frequently equivalent to "hired." (See § 18525.) We think it plain that the Department is authorized to hire and use its own ALJ's rather than to use those selected and employed by the Office of Administrative Hearings. FN5 The Department's position is supported by legislative history. (See Legis. Counsel's Dig., Assem. Bill No. 463 (1994-1995 Reg. Sess.); Sen. Com. on Governmental Organization, Analysis of Assem. Bill No. 463 (1994- 1995 Reg. Sess.) p. 2.) On the other hand, Vicary attempts to make much of the fact that certain statutes authorizing other agencies to appoint their own employees as hearing officers include an Copr. © Bancroft-Whitney and West Group 1998 Page 4 express requirement that the officers be "impartial." (See, e.g., Lab. Code, § 1742, subd. (b); Unemp. Ins. Code, § 404.) Vicary argues that the omission of this word from Business and Professions Code section 24210 can only be explained by the fact that the section really requires the use of ALJ's from the Office of Administrative Hearings, who are presumptively impartial. As noted below, it is not self-evident that such ALJ's would be more impartial than Department ALJ's. We think that the drafters of the cited statutes included the requirement that the hearing officer be "impartial" simply as a matter of course, and that the omission of the term in the Business and Professions Code statute gives rise to no persuasive inference. What the cited statutes do demonstrate is that it is not at all unique for the Legislature to provide for a state agency's use of "in-house" ALJ's. Vicary's second argument raises the issue of due process, which of course includes the right to an impartial decision maker. (Hall v. Harker (1999) 69 Cal.App.4th 836, 841 [82 Cal.Rptr.2d 44].) (3) Due process applies to administrative proceedings as well as to judicial proceedings. (Burr ell v. City of Los Angeles (1989) 209 Cal.App.3d 568,582 [257 Cal.Rptr. 427].) However, at least in the administrative context, all that is required is that the hearing officer or other decision maker be a " 'reasonably impartial, noninvolved reviewer.' " (Linney v. Turpen (1996) 42 Cal.App.4th 763, 771 [49 Cal.Rptr.2d 813] (Linney).) (Ic) Vicarys position is that because the ALJ was employed by the Department, he necessarily had a bias in favor of the Department, which would be prompted by a perceived need to please the Department in order to keep his job. We recognize that no showing of actual bias is necessary if the challenged adjudicator has a strong, direct financial interest in the outcome. (Haas v. County of San Bernardino (2002) 27 CaUth 1017, 1032-1034 [119 Cal.Rptr.2d 341, 45 P.3d 280] (Haas).) However, it has been consistently recognized that the fact that the agency or entity holding the hearing also *886 pays the adjudicator does not automatically require disqualification (see Mclntyre v. Santa Barbara County Employees' Retirement System (2001)91 Cal.App.4th 730,735 [110Cal.Rptr.2d 565]; Linney, supra, 42 Cal.App.4th at pp. 770-771), and Haas confirms this. (Haas, supra, 27 Cal.4th at p. 1031.) As the Supreme Court also noted in Haas, such a rule would make it difficult or impossible for the government to provide hearings which it is constitutionally required to hold. Haas involved a county that had no regular "hearing officer," but simply hired attorneys to serve on an ad hoc basis. The vice of the system was that an attorney who desired future appointments had a financial stake in pleasing the county, and that the county had almost unrestricted choice for future appointments. In this case, ALJ's are protected by civil service laws against arbitrary or retaliatory dismissal. (See § 18500 et seq.) Thus, there is no basis upon which to conclude that the ALJ was influenced to rule in favor of the Department by a desire for continued employment. As the court noted in Linney, current law also authorizes disqualification if the circumstances would lead a reasonable person to suspect bias. (Code Civ. Proc., § 170.1, subd. (a)(6); Linney, supra, 42 Cal.App.4th at p. 776.) Given that the ALJ's financial interest in the result is too attenuated to require disqualification without a showing of actual bias, we find Vicary's other speculative and factually bare concerns about the ALJ's presumed "coziness" with the Department insufficient to raise a suspicion of bias. [FN6] The record contains no information on the manner in which an ALJ is selected by the Department for any given hearing which would suggest any possibility of bias. Finally, although Vicary insists that the Department should employ ALJ's provided by the Office of Administrative Hearings-that is, by the state-it is speculative to state that such ALJ's would be "more impartial" than those employed directly by a particular agency. We will not presume that state- employed professional ALJ's cannot, will not, or do not bring a constitutional level of impartiality to the cases they hear, even if one side is the agency that directly employs them. The procedure here was constitutionally permissible. *887 FN6 We note that under Vicary's theory, members of the Board could be similarly challenged, as they are subject to-or "fearful of'-removal by the Governor at his pleasure, or by majority vote of the Legislature for dereliction of duty, corruption, or incompetence. (Cal. Const., art. XX, § 22.) Furthermore, they are just as likely to be "cozy" with the Department enforcement personnel as are the ALJ's. Such an approach to disqualification, however, would essentially prevent the government from ever holding hearings on matters of public importance. B. (4a) We turn now to the substance of the case and the Copr. © Bancroft-Whitney and West Group 1998 PageS continuing viability of Rule 143.3. In our view, the Board erred in underestimating the state's power to impose regulations directed at the undesirable secondary effects of certain types of entertainment and the establishments offering them. Furthermore, the Board failed to give adequate consideration to the rule that reasonable restrictions on the time, place, and manner of expression may be constitutionally valid. Finally, we reject any reliance by the Board on an alleged de minimis theory. [FN7] FN7 At oral argument, Vicary complained that our tentative opinion focused on the "facial validity" of Rule 143.3, while her attack was primarily on the application of the rule. While this is true, we take this approach because the Board's opinion can be read as reflecting the belief that nonobscene conduct cannot be regulated by the state even in conjunction with the sale of alcoholic beverages. The Board's lengthy discussion of what it referred to as the "continually evolving and highly controversial area of the law" and the underlying constitutional principles strongly suggested to us that it believed the rule to have been undermined byrecent cases. The Department's concern, in its petition, to affirm the validity of the rule indicates that its reading of the Board's decision was similar to ours. Accordingly, we address these issues at some length for the guidance of the Board. (5) It has long been recognized that "there is no inherent right to sell intoxicating liquors, that the liquor business is fraught with danger to the community, and [that it] may therefore be either entirely prohibited, or permitted under such conditions as are prescribed by the regulatory agency." (Yu v. Alcoholic Bev. etc. Appeals Ed. (1992) 3 Cal.App.4th 286, 296 [4 Cal.Rptr.2d 280].) Once granted, a license may be revoked or suspended for the protection of the public welfare and morals. (Cal. Const., art. XX, § 22; Harris v. Alcoholic Bev. Con. Appeals Bd. (1963) 212 Cal.App.2d 106 [28 Cal.Rptr. 74].) Thus, the state may properly regulate establishments which sell alcoholic beverages to patrons to protect the public interest in a safe and relatively seemly environment. (4b) In California v. LaRue (1972) 409 U.S. 109 [93 S.Ct. 390,34 L.Ed.2d 342] (LaRue), the Supreme Court upheld the essential validity of Rule 143.3. In part, the court relied on the authority given to the states by the Twenty-first Amendment. [FN8] However, it also noted that Rule 143.3 constituted at most a minimal infringement on true expressive conduct. Acknowledging that the regulation would affect some conduct protected by the First Amendment, the court stated that "the critical fact is that California has not *888 forbidden these performances [FN9] across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink." (LaRue, supra, 409 U.S. at p. 118 [93 S.Ct. at p. 397].) (6)(See fn. 10.) The court further took note that the adoption of Rule 143.3 was based on substantial evidence that nude performances in conjunction with the sale of liquor led not only to lewd conduct by customers inside the business premises, but also to prostitution, indecent exposure, and sexual assault in the vicinity. [FN10] (4c) As is still broadly recognized today: "Liquor and sex are an explosive combination." (Blue Canary Corp. v. City of Milwaukee (7th Cir. 2001) 251 F.3d 1121, 1124 (Blue Canary)) Although Vicary denies that the government has any interest in regulating the effect of speech on the listener, these cases also establish that in the limited context of liquor regulation, such an interest not only exists, but can be a proper exercise of the police power. FN8 In addition to repealing Prohibition (U.S. Const., 18th Amend.), the Twenty-first Amendment, section 2 provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." FN9 E.g., "performances" featuring sodomy, flagellation, and bestiality, as well as the tamer type of touchings involved here. FN10 A governmental unit need not conduct its own study regarding these effects, but may rely on evidence " '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.'" (BZAPS, Inc. v. City ofMankato (8th Cir. 2001) 268 F.3d 603, 606; see also City of Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 51 [106 S.Ct. 925, 930-931, 89 L.Ed.2d 29].) In this case, the Department did conduct certain studies before adopting the rule, and there is no evidence in the record that things have changed. Information from other jurisdictions, gleaned from reported cases, confirms that Copr. © Bancroft-Whitney and West Group 1998 Page 6 establishments offering both alcohol and "adult entertainment" still tend to attract both crime and disorderly behavior. Several years later, a California court relied onLaRue's approval of Rule 143.3 to uphold the granting of injunctive relief against an establishment that proposed to offer alcoholic beverages and "entertainment" which would concededly violate Rule 143.3. (Strohv. Midway Restaurant Systems, Inc. (1986) 180 Cal.App.3d 1040, 1053-1054 [226 Cal.Rptr. 153].) Our Supreme Court also cited LaRue in discussing and distinguishing an ordinance whose prohibition of nude dancing extended beyond establishments offering alcoholic beverages. (Morris v. Municipal Court (1982) 32 Cal.3d 553, 560 [186 CaLRptr. 494,652 P.2d 51].) Thus, the validity of Rule 143.3 would appear to be well established. However, the Board concluded that more recent decisions from the United States Supreme Court undermined the authority of LaRue in crucial respects. As we will explain, this conclusion was wrong. The Board relied on 44 Liquormart, Inc. v. Rhode Island (1996) 517 U.S. 484 [116 S.Ct. 1495, 134 L.Ed.2d 711] (44 Liquormart), in which the court retreated from the LaRue court's reliance on the Twenty-first Amendment as *889 conferring an added presumption of validity upon alcohol-related regulation of expressive conduct. Instead, the court held that the Twenty-first Amendment did not qualify or diminish the states' obligations to respect the First Amendment. (44 Liquormart, supra, 517 U.S. at pp. 515-516 [ 116 S.Ct. at pp. 1514-1515].) 44 Liquormart, however, was not a dancing-in-bars case, but rather involved Rhode Island's attempt to impose a total prohibition on the advertising 'of alcoholic beverages. The bulk of the discussion involves the regulation of commercial speech in general. Although the state's attempt to rely on LaRue' s gloss of the Twenty-first Amendment led to the retrenchment discussed above, the Supreme Court also commented: "We are now persuaded that the Court's analysis in LaRue would have led to precisely the same result if it had placed no reliance on the Twenty-first Amendment. fl|] Entirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations." (44 Liquormart, supra, 517 U.S. at p. 515 [ 116 S.Ct. at p. 1514], italics added.) [FN11] FN11 The power to which reference is made is, of course, the police power. (See generally Berman v. Parker (1954) 348 U.S. 26, 32-33 [75 S.Ct. 98, 102-103, 99 L.Ed. 27].) The California Constitution also contains a specific grant of regulatory power relating to alcoholic beverages in article XX, section 22. In other words, the Supreme Court in 44 Liquormart stated that LaRue was correctly decided, that is, that the Department's adoption of Rule 143.3 was constitutionally permissible even though the buttress of the Twenty-first Amendment had been removed. Other courts have concluded that 44 Liquormart does not obliterate the states' powers to regulate the combination of alcohol and expressive conduct. (E.g., BZAPS, Inc. v. City of Mankato, supra, 268 F.3d at p. 608; El Morocco Club, Inc. v. Richardson (R.1.2000) 746 A.2d 1228.) Confirming this view is the high court's opinion in a case decided after 44 Liquormart, Erie v. Pap's A.M. (2000) 529 U.S. 277 [120 S.Ct. 1382, 146 L.Ed.2d 265] (Pap's AM.). [FN12] In Pap's A.M., the challenged local ordinance banned all public nudity, and the challenge was brought by an establishment which wished to present nude dancing. For our purposes, the case makes two significant points: (1) Although nude dancing is covered by the First Amendment, it falls "only within the outer ambit" of protection (Pap's A.M., supra, 529 U.S. at p. 289 [120 S.Ct. at p. 1391]; see also Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, 565-566 [111 S.Ct. 2456, 2459-2460, 115 L.Ed.2d 504]); and (2) if a regulation is directed at genuine "secondary effects" of the *890 regulated conduct, the regulation should be deemed "content neutral" for the purpose of determining the level of scrutiny. [FN13] (Pap's A.M., supra, 529 U.S. at pp. 292-296 [120 S.Ct. at pp. 1392-1395].) FN12 The Board was aware of the Pap 'sA.M. decision, but believed that it did not provide a "clear answer" to the questions in this case. FN13 To give a concrete example, a rule barring a dancer from "snapping" her breast by pulling on a ring attached to it (as was done by one of the dancers here) is content neutral because the dancer could intend to express any number of views, opinions, feelings, invitations, et cetera. The regulation is not concerned with the intended content of the "snapping." Vicary argues strenuously that because Rule 143.3 is directed towards performances rather Copr. © Bancroft-Whitney and West Group 1998 than the state of nudity, it is content directed and unconstitutional, thus attempting to distinguish Pap's A.M. However, even a case cited by Vicary recognizes that in the context of "adult entertainment," arguably content-directed regulations are commonly analyzed as content neutral if they can be justified without reference to content. (Schultz v. City of Cumberland (7th Cir. 2000) 228 F.3d831, &45 (Schultz).) The seminal content-neutral case, in turn, is United States v. O'Brien (1968) 391 U.S. 367 [88 S.Ct. 1673, 20 L.Ed.2d 672] (O'Brien), which arose out of the burning of a draft card allegedly with the expressive intent of protesting the Vietnam conflict. As the court explained in Pap's A.M., in O'Brien, the statute prohibiting such destruction was "aimed at maintaining the integrity of the Selective Service System and not at suppressing the message of draft resistance ...." (Pap's AM, supra, 529 U.S. at p. 291 [120 S.Ct. at p. 1392].) Such a statute was, and is, subject to an intermediate level of scrutiny which focuses on four factors: (1) Is the regulation within the power of the government to enact? (2) Does it further an important or substantial governmental interest? (3) Is the governmental interest unrelated to the suppression of free expression? (4) Is the restriction no greater than is essential to the furtherance of the governmental interest? (Id. at pp. 296-301 [120 S.Ct. at pp. 1394-1397].) Even if the legal analysis of LaRue were no longer available to support Rule 143.3, an analysis under Pap's AM. and O'Brien would be appropriate and would lead to the same result. As Pap's AM. confirms, the state is authorized under the police power to enact regulations affecting public health and morality. (Pap's A.M., supra, 529 U.S. at. p. 296 [120 S.Ct. at pp. 1394-1395].) As LaRue also recognized, the adoption of Rule 143.3 was supported by ample evidence of the deleterious effects inherent in the combination of alcoholic beverages and explicitly erotic performances. [FN14] Regulation of the performances will therefore logically reduce the negative secondary effects and thus further the governmental interest. (See Pap's A.M., supra, 529 U.S. at pp. 300-301 [120 S.Ct. at pp. 1396-1397].) Turning *891 to the third O'Brien factor, the governmental interest is not related to the suppression of any particular expression or expression in general. Finally, as was noted in Pap's A.M., Rule 143.3 "regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis." (Pap's A.M., at p. 301 [120 S.Ct. at p. 1397], original italics.) [FN15] Page 7 FN14 Furthermore, at this point in time, courts are generally willing to accept the existence of negative "secondary effects" either as a matter of "common sense" or through reliance on reports from other jurisdictions. (See Sammy's of Mobile, Ltd. v. City of Mobile (11th Cir. 1998) 140 F.3d 993,997.) FN15 Justice Scalia, concurring in the judgment, and Justice Stevens, dissenting, commented that the requirement of pasties and G-strings would not be likely to substantially reduce the negative secondary effects. The court-via Justice O'Connor's plurality opinion-agreed that while a requirement that "erotic" dancers be fully clothed would probably be more effective, the fact that the City of Erie chose to experiment with a less drastic restriction could not be considered a factor invalidating the regulation. Hence, in our view the latest pronouncements of the United States Supreme Court tend to confirm, rather than undercut, the validity of Rule 143.3. The Board incorrectly found otherwise. First, the Board distinguished Pap's A.M. by noting that it involved a total ban on public nudity, while Rule 143.3 regulates the conduct of a dancer who may be clothed. We do not see a great deal of significance to this. Secondly, the Board believed that "by singling out specific elements of conduct, devoid of context, [Rule 143.3] threatens to inhibit expression more than a minimal amount." [FN16] FN16 In this respect it also felt that because the Department "has culled touches which lasted only seconds" from some 48 minutes of dance, "it is inescapable that the content of the expression is what the Department found to be offensive." Not so; what the Department found offensive was the specific conduct that violated Rule 143.3. Contrary to the Board's view, we think it extremely unlikely that these isolated bits of conduct were uniquely expressive or essential to the message-if any, as Justice Scalia would probably remark-of the dances. (See Pap's A.M., supra, 529 U.S. at p. 310 [120 S.Ct. at p. 1402] (cone. opn. of Scalia, J.).) However, to the extent that a ban on self-touching Copr. © Bancroft-Whitney and West Group 1998 PageS limits expression more than a requirement of pasties and G-strings, the Board has failed to give adequate weight to the fact that Rule 143.3 operates only in the field of licensed premises. As the Department points out, Rule 143.3 can also be fairly characterized as a "time, place, arid manner" restriction. (See City of Renton v. Playtime Theatres, Inc., supra, 475 U.S. 41, 46 [106 S.Ct. 925, 928].) The Department is not attempting to regulate or prohibit nude or erotic dancing in general. It is only attempting to reduce the problems caused by such dancing in front of customers whose inhibitions and ability to control their impulses have been weakened by the consumption of liquor. If performers at Vicary's establishment feel constricted by Rule 143.3, they are free to exhibit their wares (and whatever else they wish) at clubs which do not serve alcoholic beverages. The location-limited effect of Rule 143.3 was cited as the "critical fact" favoring a finding of constitutional validity in *892 LaRue, supra, 409 U.S. at page 118 [93 S.Ct. at page 397]. If it is supported by substantial governmental concerns, a regulation touching on expression is nevertheless valid so long as "reasonable alternative avenues of communication" remain. [FN17] (City of Renton v. Playtime Theatres, Inc., supra, 475 U.S. at p. 50 [106 S.Ct. at p. 930].) Such alternatives remain available here. FN17 That is, avenues for the same type of expression. Amendment values" as "slight to the point of being risible ...." (Blue Canary, supra, 251 F.3datp. 1124.) We are also unpersuaded that the decision in ISO, Ltd. v. Stroh (9th Cir. 2000) 205 F.3d 1146 requires that Rule 143.3 be struck down. In that case, which involves what the Department now admits was a "mistake," [FN19] an organization proposed to hold a sort of trade show that would include a display of erotic art and photographs. The show was to be held at a large convention center that held a liquor license. Relying on title 4, section 143.4 of the California Code of Regulations, [FN20] the Board warned the convention center that its license would be revoked if it permitted the exhibition to open- despite the trade show's offer to declare an "alcohol free zone" and to sell no alcohol in the portion of the center containing the show. (LSO, Ltd. v. Stroh, supra, 205 F.3d at p. 1151.) *893 FN19 In her return, Vicary requested that we ask the Department, at oral argument, whether it believed that Rule 143.3 would apply to prohibit an actress at the Mark Taper Forum Theatre in Los Angeles from touching her breasts through her clothing. It is obvious from the Department's characterization of its actions in LSO, Ltd. v. Stroh, that the answer would be "no." In our view, nothing in the subsequent decisions rendered by the high court affects this point as applied to the case at bar. We have considered a case cited by Vicary, Schultz, supra, 228 F.3d 831, in which the court did express the view that regulation of the dancers' sexually oriented self- touching gestures constituted an impermissible burden on expression. (Id at p. 845.) Assuming this view is correct, Schultz is not controlling because it did not involve the combination of alcohol and sexually suggestive performance; the establishment in question did not serve liquor. Furthermore, Schultz involved a total ban on nude dancing and specified sexual gestures, so that no "time, place, and manner" analysis could be applied. On the other hand, in Blue Canary, supra, 251 F.3d at page 1124, the court had no difficulty upholding what was essentially a zoning regulation because "[the expression is] not suppressed but merely shoved off to another part of town." [FN18] FN18 The Blue Canary court, in a typically stylish and forthright opinion by Judge Posner, also described the "impairment of First FN20 This rule is very similar to Rule 143.3, except that it regulates the display of art, films, etc., in licensed premises. It is obvious that this is exactly the sort of heavy-footed attempt to regulate fully protected expression that the Supreme Court, in LaRue, suggested might present itself in the future, although it was not presented in that case. (LaRue, supra, 409 U.S. at p. 119, m. 5 [93 S.Ct. at p. 397].) Insofar as the Ninth Circuit Court of Appeals expressed doubts about the continuing viability of LaRue, as we have explained, we do not share them. It may well be true that Rule 143.3 could not be constitutionally applied to a reasonably high-minded display of serious artistic material in conjunction with alcohol, but that is not this case. As the cases reiterate, erotic dancing is not entitled to the same protection as Shakespeare's Hamlet. [FN21] FN21 We use the example, because the Department suggests that a licensed bar could Copr. © Bancroft-Whitney and West Group 1998 Page 9 not circumvent Rule 143.3 by having a performer recite "the soliloquy from Hamlet while fondling her breasts or genitalia." We are not sure this is a correct statement. A performance of Hamlet in which the performer playing Ophelia fondled herself while nude during the "mad scene" would be artistically viable (and has probably been done). For example, Ophelia's songs include the lyrics "Then up he rose, and donn'd his clothes; And dupp'd the chamber-door; Let in the maid, that out a maid; Never departed more." (Shakespeare, Hamlet, act IV, scene 5.) The Board was also concerned that the Department's actions were motivated "by what it perceives as the primary effects of the expression, i.e., the effect on the audience-'sexual arousal.' " Coupled with this was a criticism that there had been no finding that the touchings were "not part of the expressive element of the dance," and no attempt to "assess the impact the prohibition might have had upon the expression reflected in the dance." Of course the Department, and Rule 143.3, are indirectly concerned with the arousing effects of the prohibited conduct; that is not disputed. We may also assume, arguendo, that a dancer's expression of sensual emotion may be impaired if she cannot fondle her breasts or genitals. However, if expression tends to create deleterious secondary effects-here, immoral or unlawful actions by the viewers-Pop's A.M. confirms that some regulation of the expression is permitted; the hands of the state are not constitutionally bound. And although Rule 143.3 may reach more broadly than would be permissible for a regulation of conduct in all places, it is properly applied to regulate the "explosive" combination of liquor and sex. (See Blue Canary, supra, 251 F.3d at p. 1124.) Vicary strenuously argues in line with the decision of the Board that the touchings involved should be viewed as integral parts of the artistic expression and therefore protected. She concedes that "prolonged" touching for "no artistic purpose" would violate Rule 143.3, but insists that this is a different case and that it is unconstitutional to forbid "brief touchings in the context *894 of expressive dance. Instead, she suggests that the Board (and this court) must evaluate each touching. [FN22] FN22 The standards for evaluating the proposed touchings would presumably include both duration and the intended expression or content. We disagree. The prohibition of Rule 143.3 is clear and the touchings here were not inadvertent. We decline to hold that the minimal constitutional protection to which the dancers are entitled requires that they be permitted one or more "freebies." Furthermore, Vicary, and the dancers, cannot have it both ways. If the touchings were truly insignificant, there is a similarly insignificant effect on expression if the touchings are banned. On the other hand, if the touchings were the highlight of erotic expression, they were likely to spark exactly those reactions in the customer which Rule 143.3 properly attempts to prevent. [FN23] FN23 Of course, if the touchings were unrelated to any expression at all, they could be regulated, as even Vicary concedes. Although Vicary argued at the hearing that her dancers were on the more protected part of the continuum running from Pavlova and Baryshnikov at the one end, to live-sex-on-stage performers at the other, experience indicates otherwise. [FN24] The record indicates only that the dancers performed to brief recorded songs, during which they typically removed their tops and, prompting this case, frequently caressed their breasts. Common sense-and the assumption underlies dozens of cases-suggests that gentlemen do not go to topless bars to see Swan Lake or even Twyla Tharp, and that a topless establishment that hoped to be successful would not offer such fare. While we agree that the conduct involved does not approach that cited in LaRue (see fh. 9, ante), we decline to hold that a state may prohibit performers from having sex with animals in bars, but must permit female dancers to rub their genitals and snap their bare breasts at the customers. [FN25] In terms of the potential for negative secondary effects, the distinction is one of degree and is not significant. *895 FN24 Vicary requests that we take judicial notice of the fact that singer Michael Jackson frequently grabs his crotch during performances. In the same spirit, it is not unfair for us to rely on other than direct experience in characterizing the typical topless dances performed hi bars. We note that at oral argument, Vicary appeared to take the position that there was no "continuum" supporting a varying application of the First Amendment. We believe that the United States Supreme Court has clearly recognized that the constitutional protection Copr. © Bancroft-Whitney and West Group 1998 varies with the type of speech, and that it lightens (but does not dissipate) near the "outer ambit" in which Vicary's dancers operate. (See Pap's A.M., supra, 529 U.S. at p. 289 [120 S.Ct. at p. 1391].) Page 10 CONTROL APPEALS BOARD, Respondent; RENEE VICARY, Real Party hi Interest. END OF DOCUMENT FN25 Vicary argued strenuously at oral argument that the rule was not violated when the dancer "Pamela" manipulated her bare breasts by pulling on an implanted ring. The evidence also showed that "Pamela" violated the rule by flesh-to-flesh touchings as well. We find no need at this point to determine whether such a ring should be considered a "fixture" and part of the breast itself for the rule's purposes. We will leave that issue for a case which involves nothing but implanted rings and manipulation of the breasts thereby. Agreed, dancers of this sort are entitled to at least some First Amendment protection. However, they are not entitled to flout rules enacted in the hope of maintaining some level of decorum in the potentially inebriated patrons, not only while on the premises, but after they leave. The state, through the Department, has not prohibited dancers from performing with the utmost level of erotic expression. They are simply forbidden to do so in establishments that serve alcohol, and the Constitution is not thereby offended. It remains to consider whether Vicary should be given the opportunity to request the Board to reconsider the penalty imposed, an issue which became moot when the Board overturned the decision on the Rule 143.3 violations. We believe that Vicary is entitled to a determination on this point. Disposition The order of the Board is annulled. The matter is remanded to the Board for reconsideration of the penalty imposed. McKinster J., and Gaut J., concurred. A petition for a rehearing was denied July 18, 2002, and the petition of real party in interest for review by the Supreme Court was denied October 23,2002. *896 Cal.App.4.Dist.,2002. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Petitioner, v. ALCOHOLIC BEVERAGE Copr. © Bancroft-Whitney and West Group 1998 21 Page 1 Copr. ® West 2001 No Claim to Orig. U.S. Govt. Works 215 F.3d 1052 00 Cal. Daily Op. Serv. 5149, 2000 Daily Journal D.A.R. 6901, 2000 Daily Journal D.A.R. 8227 (Cite as: 215 F.3d 1052) United States Court of Appeals, Ninth Circuit. Steven A. DIAMOND, Plaintiff-Appellant, v. CITY OF TAFT, a Municipal Corporation, Defendant-Appellee. No. 98-17253. Argued and Submitted Feb. 8, 2000 Filed June 27, 2000 As Amended on Denial of Rehearing July 26, 2000. Person seeking to open an adult bookstore sued city, challenging constitutionality of zoning ordinance which restricted locations in which adult entertainment businesses could operate and required adult businesses to obtain conditional use permit (CUP). The United States District Court for the Eastern District of California, Anthony W. Ishii, J., 29 F.Supp.2d 633, upheld ordinance except for CUP requirement, and plaintiff appealed. The Court of Appeals, Michael Daly Hawkins, Circuit Judge, held that: (1) plaintiff did not show that alternative sites had inadequate infrastructure for any generic commercial enterprise, so as not to constitute reasonable alternative avenues of communication, though they lacked sidewalks or streetlights; (2) current unavailability of certain sites did not preclude their consideration; and (3) the proper measure of sufficiency of number of alternative sites was not the three sites that could exist simultaneously, but the total seven sites that were available under the ordinance, where plaintiff was the first person to seek to open an adult business in the city. Affirmed. West Headnotes [1] Constitutional Law k90.4(l) 92k90.4(l) Court of Appeals employs a two-step test to determine whether a city, which has enacted a zoning ordinance limiting the locations of adult businesses, provides a sufficient number of alternative avenues of communication, so as to comply with the First Amendment: (1) the relocation sites provided to adult businesses must be considered part of an actual business real estate market for commercial enterprises generally; and (2) after excluding those sites that may not be properly considered part of the relevant real estate market, there are an adequate number of alternative relocation sites. U.S.C.A. Const. Amend. 1. [2] Zoning and Planning k76 414k76 It is not required that every site in a manufacturing zone have sidewalks, roads, and lighting in order to be a reasonable alternative site for an adult business under zoning ordinance limiting the locations of such businesses; rather these are examples of what may constitute proper infrastructure. U.S.C.A. Const.Amend. 1. [3] Constitutional Law k90.4(l) 92k90.4(l) [3] Zoning and Planning k76 414k76 Person whose proposed operation of adult bookstore was prevented by zoning ordinance did not show that alternative sites had inadequate infrastructure for any generic commercial enterprise, so as not to constitute reasonable alternative avenues of communication, in compliance with the First Amendment, though they lacked sidewalks or streetlights, where they had power, water, and access to a main road. U.S.C.A. Const.Amend. 1. [4] Constitutional Law k90.4(l) 92k90.4(l) In order to show that a zoning ordinance limiting the locations of adult businesses provides a sufficient number of alternative avenues of Page 2 communication, so as to comply with the First Amendment, a city cannot merely point to a random assortment of properties and assert that they form the basis of the actual real estate market. U.S.C.A. Const.Amend. 1. [5] Constitutional Law k90.4(l) 92k90.4(l) [5] Zoning and Planning k76 414k76 The current unavailability of certain sites did not preclude their consideration in determining whether zoning ordinance limiting the locations of adult businesses provided a sufficient number of alternative avenues of communication, so as to comply with the First Amendment, where person challenging the ordinance did not offer sufficient evidence to show that these sites would not reasonably become available to any commercial enterprise. U.S.C.A. Const.Amend. 1. [6] Constitutional Law k90.4(l) 92k90.4(l) In determining whether a zoning ordinance limiting the locations of adult businesses provides a sufficient number of alternative avenues of communication, so as to comply with the First Amendment, the overriding concern is that a city cannot effectively deny adult businesses a reasonable opportunity to open and operate within the city, and the touchstone is reasonableness. U.S.C.A. Const.Amend. 1. [7] Constitutional Law k90.4(l) 92k90.4(l) In order for a zoning ordinance limiting the locations of adult businesses to provide a sufficient number of alternative avenues of communication, so as to comply with the First Amendment, there is no constitutional requirement that a city make available a certain number of sites. U.S.C.A. Const.Amend. 1. [8] Constitutional Law k90.4(l) 92k90.4(l) [8] Zoning and Planning k76 414k76 In determining whether a zoning ordinance limiting the locations of adult businesses provided a sufficient number of alternative avenues of communication, so as to comply with the First Amendment, the proper measure of sufficiency was not the three sites that could exist simultaneously, but the total seven sites that were available under the ordinance, where the person challenging the ordinance was the first person to seek to open an adult business in the city, so that he was not limited by the prohibition on locating adult businesses within 1,000 feet of one another, and was seeking to open a business and was not being required to close and relocate. U.S.C.A. Const.Amend. 1. [9] Constitutional Law k90.4(l) 92k90.4(l) Generally, in cases where there is a restriction in zoning ordinance on the distance between adult businesses, a proper measure of sufficiency of alternative avenues of communication, so as to comply with the First Amendment, can only include the number of sites that could coexist. U.S.C.A. Const.Amend. 1. [10] Constitutional Law k90.4(l) 92k90.4(l) [10] Zoning and Planning k76 414k76 The potential availability of seven sites for adult businesses in a community with a population of about 6,800 was sufficient to allow first person seeking to open an adult business in the city an opportunity to open and operate, so that zoning ordinance limiting the location of adult businesses did not violate his free speech rights. U.S.C.A. Const.Amend. 1. *1054 Roger Jon Diamond, Santa Monica, California, for the plaintiff- appellant. John D. Gibson (argued) and Edward Gordon, Gibson and Gibson, Bakersfield, California, for the defendants-appellees. Appeal from the United States District Court for the Eastern District of California; Anthony W. Ishii, District Judge, Presiding. D.C. No. CV-95- 05774-AWI(DLB). Before: BOOCHEVER, HAWKINS, and THOMAS, Circuit Judges. MICHAEL DALY HAWKINS, Circuit Judge: We must decide the constitutionality of a local PageS zoning ordinance concerning adult businesses. Steven A. Diamond ("Diamond"), prospective owner of an adult bookstore, sued the City of Taft ("Taft") challenging the constitutionality of Taft's zoning ordinance restricting the locations in which adult businesses can operate. The district court found the ordinance constitutional. We affirm. BACKGROUND Taft is a small rural town in Kern County, California, with a population of about 6,800. In 1995, it amended its existing adult entertainment zoning ordinance to modify the locational restrictions on adult businesses. [FN1] The new ordinance provides that adult entertainment businesses are permissible only in zones designated commercial-1 ("C-l"), commercial-2 ("C-2"), manufacturing-1 ("M-l"), and manufacturing-2 ("M-2"), and may not be located within 1000 feet of any area zoned for residential use, any other adult entertainment business, any public or private school, park, playground, public building, church, commercial establishment operated by a bona fide religious organization, or any establishment "likely to be used by minors." See Taft Mun.Code §§ 6-31-3, 6-31-4 (1995). [FN2] FN1. Taft began placing zoning restrictions on adult businesses in 1986. See Diamond v. City of Taft, 29 F.Supp.2d 633, 635 (E.D.Cal.1998). FN2. The ordinance also required that a conditional use permit ("CUP") be approved by Taft Council for any prospective adult entertainment business even if that business conforms to the locational and distance requirements. The CUP was invalidated by the district court and is not a subject of this appeal. *1055 Diamond owns a building on Center Street in Taft. He ran a pawn shop in the building for a number of years. In 1995, he decided to close the pawn shop and open an adult bookstore. Diamond's building does not meet the requirements of the ordinance because, although it is zoned C-2, it is within 1000 feet of parks, churches, and residences. Nevertheless, Diamond applied to Taft to use it for an adult business. After Taft rejected his proposal, he sued, seeking an injunction prohibiting Taft from enforcing the ordinance, along with monetary damages. The district court found the ordinance constitutional. As in our related case ofLim v. City of Long Beach, 217F.3d 1050,1053-54 (9th Cir.2000), the only issue before the district court, and presented in this appeal, is whether the ordinance unreasonably limits alternative avenues of communication. See City of Renton v. Playtime Theatres, 475 U.S. 41, 46- 47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). At trial, Taft presented evidence that there were 20 potential alternative locations for adult businesses. The district court found that sites 1 through 6 met the requirements of the ordinance. Because sites 1-6 are located close together along the same street, the district court found that adult businesses could simultaneously be located only at site 1 and site 6. The district court also found that site 21 met the requirements of the ordinance. Site 21 is not within 1000 feet of sites 1-6. Thus, the district court concluded that because of the 1,000 foot requirement a total of three sites—I, 6, and 21-- could be operated simultaneously. As Diamond was the only person who had ever sought to open an adult business in Taft, the district court found that these three sites were constitutionally sufficient alternative avenues of communication. See Diamond, 29 F.Supp.2d at 645-46. STANDARD OF REVIEW The district court's findings of fact are reviewed for clear error, see Valley Eng'rs, Inc. v. Electric Eng'g Co., 158 F.3d 1051, 1052 (9th Cir.1998), while its conclusions of law are reviewed de novo, see Cigna Property and Cos. Ins. Co. v. Polaris Pictures Corp., 159F.3d412, 418 (9th Cir. 1998). Mixed questions of law and fact are also reviewed de novo. See United States v. City of Spokane, 918 F.2d 84, 86 (9th Cir. 1990). A mixed question of law and fact exists when there is no dispute as to the facts, the rule of law is undisputed, and the question is whether the facts satisfy the legal rule. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); United States v. Lang, 149 F.3d 1044, 1046 (9th Cir. 1998). Because there are no factual disputes in this case, we review the district court's decision de novo. ALTERNATIVE AVENUES OF COMMUNICATION Page 4 [1] Diamond contends that Taft did not allow for alternative avenues of communication because it did not provide Diamond with a "reasonable opportunity to open and operate ... within the city." Renton, 475 U.S. at 54, 106 S.Ct. 925. We employ a two-step test to determine whether a city provides a sufficient number of alternative avenues of communication: (1) the relocation sites provided to adult businesses must be considered part of an actual business real estate market for commercial enterprises generally; and (2) after excluding those sites that may not be properly considered part of the relevant real estate market, there are an adequate number of alternative relocation sites. See Topanga Press v. City of Los Angeles, 989F.2d 1524, 1530 (9th Cir.1993); Lim, slip op. at 6940-41. *1056 A. Actual Business Real Estate Market Diamond argues that the sites proffered by Taft are not part of the actual business real estate market because (1) they lack the required infrastructure, and (2) some of the properties are occupied. [2] [3] Diamond asserts that sites 1, 6, and 21 lack proper infrastructure because they do not have sidewalks or streetlights. In Topanga Press, we stated that areas in manufacturing zones may be included in the actual business real estate market as long as they have proper infrastructure. 989 F.2d at 1531; Lim, at 1054. We further noted that sidewalks, roads and lighting are examples of what may constitute proper infrastructure. Id. Topanga Press does not require that every site in a manufacturing zone have sidewalks, roads, and lighting; rather these are examples of what may constitute proper infrastructure. Sites 1, 6, and 21 are zoned for manufacturing. Because sites 1 and 6 are located along a state highway, and site 21 is located along a main driving thoroughfare, it is unlikely that people would walk along a sidewalk to reach businesses located at these sites. As such, sidewalks and street lights might be unnecessary. Further, these sites had other examples of infrastructure which may support a commercial enterprise, such as power, water, and access to a main road. Cf. Levi v. City of Ontario, 44 F.Supp.2d 1042, 1051 (C.D.Cal.1999) (no evidence of infrastructure introduced). By merely asserting that the sites lacked proper infrastructure, Diamond did not show that the sites were "inadequate for any generic commercial enterprise." Topanga Press, 989 F.2d at 1532. To rebut Taft's evidence, Diamond would have had to show that any generic commercial enterprise wanting to locate at sites 1,6, and 21 would need sidewalks and streetlights. He did not make this showing. [4][5] Diamond next argues that sites 1 and 6 were not part of the actual business real estate market because they were currently occupied. As we stated in Lim, a city cannot merely point to a random assortment of properties and assert that they form the basis of the actual real estate market. Slip op. at 1055. However, Taft made a reasonable and good faith attempt to designate numerous sites, including sites 1 and 6, as part of the actual business real estate market by providing "pertinent, specific and detailed information about each site." Lim, at 1055. Despite the current unavailability of these sites, Diamond did not offer sufficient evidence to show that these sites would not reasonably become available to any commercial enterprise. [FN3] As such, he did not rebut Taft's evidence. We assume that sites 1 and 6 will reasonably become available and we include them in the actual business real estate market. FN3. Unlike the Plaintiffs in Lim, Diamond was given an opportunity to present evidence that the properties would not reasonably become available. Diamond offered evidence that site 6 was occupied by Kern Electric and Supply Company. The district court found the evidence offered by Diamond unreliable and insufficient. See Diamond, 29 F.Supp.2d at 637. B. Sufficiency of Alternative Sites [6] As we stated in Lim, at 1056, once the relevant market is defined, we must then determine whether the market contains a sufficient number of potential relocation sites for this adult business. Our overriding concern is that a city cannot "effectively deny[ ] [adult businesses] a reasonable opportunity to open and operate ... within the city...." Renton, 475 U.S. at 54, 106 S.Ct. 925. Once again, the touchstone is reasonableness. [7] There is no constitutional requirement that a city make available a certain number of sites. PageS See Lakeland Lounge of Jackson, Inc. v. City of Jackson, Miss., 973 F.2d 1255, 1260 (5th Cir.1992). Most courts have employed one of two methods to determine whether there are a sufficient *1057 number of alternative sites: the percentage of land within the city available to adult businesses, or the number of sites compared with the number of adult businesses currently in existence or seeking to open. See 3570 East Foothill Blvd., Inc. v. City of Pasadena, 980 F.Supp. 329, 341 (C.D.Cal.1997). Where an ordinance imposes a distance requirement between adult businesses, most courts, including the district court below, have compared the number of sites in the relevant real estate market that could exist simultaneously with the number of adult businesses currently in existence or seeking to open. See Diamond, 29 F.Supp.2d at 645; see also Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1108 (9th Cir.1988). The district court found that three sites can operate simultaneously and only one adult business was seeking to open. Therefore, it concluded, three sites were sufficient. [8] Diamond argues that the district court erred in finding that three sites were sufficient to allow him to open his business. We conclude that the proper measure of sufficiency is not the three sites that could exist simultaneously, but the total seven sites that are available under the ordinance. [FN4] FN4. In arriving at our conclusion, we do not examine whether three sites would be sufficient to allow Diamond a reasonable opportunity to open and operate. We reiterate, however, that the touchstone here is reasonableness. An easy example reveals how a small ratio of sites to adult businesses may not allow an adult business a reasonable opportunity to open and operate. Assume one adult business in a city must relocate under a new zoning ordinance. Under Topanga Press, a site with a restrictive lease banning adult businesses may be included in the actual business real estate market. 989 F.2d at 1531-32. No one would argue that if this site were the only property potentially available to the adult business, this one-to-one ratio would provide the adult business a reasonable opportunity to open and operate. Because Diamond is the first person to seek to open an adult business in Taft, we need not worry about the forced relocation of existing adult businesses. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the Supreme Court held constitutional a restrictive zoning ordinance that did not affect the operation of existing adult businesses because its restrictions expressly only applied to new adult businesses. In Young, the district court specifically found that "[t]he Ordinances do not affect the operation of existing establishments but only the location of new ones." 427 U.S. at 73 n. 35, 96 S.Ct. 2440 (quotations omitted). In Renton, the Court noted that the ordinance in question only affected the location of new adult businesses because there were no adult businesses in existence in Renton when the ordinance was enacted. 475 U.S. at 44, 106 S.Ct. 925. Similarly, there were no adult businesses in Taft when the ordinance was passed. As such, the Taft ordinance applies only to adult businesses seeking to open in Taft. This might be a different case if Taft's ordinance required the closing and relocation of Taft's only adult business. In Walnut Properties, we held unconstitutional an ordinance that forced the closing of the only adult business within the city. 861 F.2d at 1110. In that case, we did not even specifically examine the exact number of potential relocation sites; it was enough that the ordinance "would force the only existing adult theater in Whittier to close at its present location with no definite prospect of a place to relocate." Id. Because Diamond is the first person to seek to open an adult business in Taft, we also need not be concerned that the ordinance prohibits adult businesses from being located within 1,000 feet of one another. As the first person to seek to open an adult business in Taft, Diamond is not limited by the 1,000- foot restriction in choosing a site for his business. He can choose among all seven sites. Others who follow Diamond will be limited by the restriction, but he is not. Under these circumstances, *1058 we need only examine the total number of sites available. [FN5] FN5. Although Walnut Properties suggests that the separation requirement between adult businesses should be taken into account even where only one adult business is affected, 861 F.2d at Page 6 1108-09, the court there did not have before it a specific number of sites; rather it was concerned that the only adult business in Whittier was closed with no "definite prospect of a place to relocate," id. at 1110. [9] Generally, in cases where there is a restriction on the distance between adult businesses, a proper measure of sufficiency can only include the number of sites that could coexist because the total acreage of land in the relevant real estate market does not determine the number of sites available to adult businesses. See, e.g., Walnut Properties, 861 F.2d at 1108; North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th Cir.1996). We arrive at this conclusion because the "acreage available to the tenth or twentieth business to relocate would be 'dramatically less' than the [acreage] available to the first adult business." Topanga Press, 989 F.2d at 1533. [10] Under these circumstances, however, we are only concerned with Diamond's ability to open an adult business. Because Diamond can choose among all seven potentially available sites as a location for his adult business, the potential availability of seven sites in a community of the size of Taft is sufficient to allow Diamond an opportunity to open and operate. Therefore, the ordinance is constitutional. AFFIRMED. END OF DOCUMENT 22 Page 1 Copr. ® West 1999 No Claim to Orig. U.S. Govt. Works 894F.Supp. 1140 (Cite as: 894 F.Supp. 1140) DLS, INC., d/b/a Diamonds and Lace Showbar, a Tennessee Corporation; Ann Martin; Kim Tyndall; and Karen Chadwick, Plaintiffs, v. CITY OF CHATTANOOGA; City Council of Chattanooga, Tennessee; Mayor Gene Roberts; Chairman Don Eaves; Councilpersons Mai Bell Hurley, David Crockett, David Disteffano, Yuseff Hakeem, John Lively, Leamon Pearce, Marti Rutherford, Ron Swafford; and Chief of Police Ralph Cothran, Defendants. No. l:95-cv-090. United States District Court, E.D. Tennessee. July 12, 1995. Owner and employees of adult cabaret brought action seeking damages and declaratory judgment, challenging adult-oriented establishment ordinance of the City of Chattanooga. The District Court, Edgar, J., held that: (1) ordinance was within constitutional powers of government and furthered substantial government interest in controlling crime; (2) rule within ordinance requiring distance of six feet between dancers and customers did not relate to conduct protected as free expression; (3) "six-foot rule" did not pose incidental burden on First Amendment freedoms greater than essential to further governmental interest; (4) amendment imposing the six-foot requirement did not offend First Amendment because there was little or no legislative history that city council was concerned with public sexual contact; (5) licensing procedure did not contravene First Amendment, but procedures for renewal and revocation were deficient in not providing time limits or judicial review; (6) provisions of ordinance requiring disclosure of information about any stockholder holding five percent or more of stock of corporate applicant or limited partner in partnership applicant were invalid; and (7) ordinance did not violate equal protection on ground that it did not target other sources of sexual display such as cable television and pornographic movies. Judgment accordingly. [1] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) Dancing at adult cabarets is at least "marginally" protected as expressive conduct within the outer perimeters of the First Amendment. U.S.C.A. Const. Amend. 1. [2] MUNICIPAL CORPORATIONS k589 268k589 Municipality's exercise of police power is not normally limited by contentions that municipality is interfering with one's freedom to contract, or right to engage in "free enterprise." [3] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Where ordinance regulating adult-oriented establishments was not enacted for purpose of limiting speech on basis of content, it was subject to time, place and manner analysis on First Amendment challenge. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601. [4] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) To withstand constitutional scrutiny, ordinance requiring licensing of sexually oriented businesses must: be within constitutional powers of government; further substantial governmental interest; interest must be unrelated to suppression of free expression; and regulation must pose incidental burden on First Amendment freedoms that is no greater than is essential to further the government interest. U.S.C.A. Const. Amend. 1. [5] LICENSES k5.5 238k5 5 Formerly 238k51/2 City had legitimate and substantial interest in controlling secondary effects associated with sexually oriented businesses, including health hazards and responding to fact that such Page 2 businesses had generated arrests for numerous sex- related and other crimes, and thus, ordinance providing for licensing and regulation of such businesses was within the constitutional powers of government. Chattanooga, Term., Ordinance 8601. [6] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance providing for licensing and regulation of adult-oriented establishments, including adult cabarets, furthered substantial government interest, for purposes of withstanding First Amendment challenge, in that it was properly directed at crime, in light of predecessor establishment's history of numerous police calls, mostly for assaults and related crimes, but some of which were for sex crimes, including a rape. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601. [6] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) City ordinance providing for licensing and regulation of adult-oriented establishments, including adult cabarets, furthered substantial government interest, for purposes of withstanding First Amendment challenge, in that it was properly directed at crime, in light of predecessor establishment's history of numerous police calls, mostly for assaults and related crimes, but some of which were for sex crimes, including a rape. U.S.C.A. Const.Amend. 1; Chattanooga, Term., Ordinance 8601. [6] LICENSES k7(l) 238k7(l) City ordinance providing for licensing and regulation of adult-oriented establishments, including adult cabarets, furthered substantial government interest, for purposes of withstanding First Amendment challenge, in that it was properly directed at crime, in light of predecessor establishment's history of numerous police calls, mostly for assaults and related crimes, but some of which were for sex crimes, including a rape. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601. [7] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) Conduct at adult cabarets involving contact between female dancers and customers was not protected as free expression, and some of it would violate Tennessee's public indecency statute, prohibiting public fondling of genitals, as well as prostitution statute, thus provision of city ordinance requiring distance of six feet between dancers and customers met requirement, on First Amendment challenge, that the governmental interest advanced by the regulation be unrelated to suppression of free expression. U.S.C.A. Const.Amend. 1; West's Tenn.Code §§ 39-13-5 ll(a)(l)(A)(iii), 39-13-512(5); Chattanooga, Tenn. Ordinance 8601, City Code §§ ll-422(e), ll-435(d). [7] LICENSES k7(l) 238k7(l) Conduct at adult cabarets involving contact between female dancers and customers was not protected as free expression, and some of it would violate Tennessee's public indecency statute, prohibiting public fondling of genitals, as well as prostitution statute, thus provision of city ordinance requiring distance of six feet between dancers and customers met requirement, on First Amendment challenge, that the governmental interest advanced by the regulation be unrelated to suppression of free expression. U.S.C.A. Const.Amend. 1; West's Tenn.Code §§ 39-13-51 l(a)(l)(A)(iii), 39-13-512(5); Chattanooga, Tenn. Ordinance 8601, City Code §§ ll-422(e), ll-435(d). [8] PROSTITUTION kl 316kl Though no actual sexual intercourse is involved, contact titillation at adult cabarets is tantamount to prostitution, defined in Tennessee statute as "engaging in, or offering to engage in, sexual activity as a business." West's Tenn.Code § 39-13-512(5). [9] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) Provision of ordinance regulating adult cabarets by requiring six feet between dancers and customers met requirement of surviving First Amendment challenge, that regulation pose incidental burden on First Amendment freedoms that is no greater than essential to further government interest, as whatever communicative element mostly nude dancing might have would be only slightly less effective from six feet away, and dancers could find other means to collect tips other than having them stuffed in garters. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11- 422(e), ll-435(d). [9] LICENSES k7(l) Page3 238k7(l) Provision of ordinance regulating adult cabarets by requiring six feet between dancers and customers met requirement of surviving First Amendment challenge, that regulation pose incidental burden on First Amendment freedoms that is no greater than essential to further government interest, as whatever communicative element mostly nude dancing might have would be only slightly less effective from six feet away, and dancers could find other means to collect tips other than having them stuffed in garters. U.S.C.A. Const.Amend. 1; Chattanooga, Term., Ordinance 8601, City Code §§ 11- 422(e), ll-435(d). [10] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) Ordinance regulating adult cabarets by requiring six-foot distance between dancers and customers did not offend First Amendment on grounds that there was little or no legislative history that city council was concerned with public sexual contact. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinances 8601, 10718, City Code §§ ll-422(e), ll-435(d). [10] LICENSES k7(l) 238k7(l) Ordinance regulating adult cabarets by requiring six-foot distance between dancers and customers did not offend First Amendment on grounds that there was little or no legislative history that city council was concerned with public sexual contact. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinances 8601, 10718, City Code §§ ll-422(e), ll-435(d). [11] COURTS k90(2) 106k90(2) Concurring opinion in United States Supreme Court case upholding prohibition on nude dancing was to be viewed as holding of the Court where that opinion was on the narrowest grounds of those which made up the majority. [11] COURTS k!08 106kl08 Concurring opinion in United States Supreme Court case upholding prohibition on nude dancing was to be viewed as holding of the Court where that opinion was on the narrowest grounds of those which made up the majority. [12] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Even though license and permit requirements of city ordinance with respect to adult-oriented establishments did not pass judgment on content of protected expression, procedural safeguards were required to effect that there be specified and reasonable time limits on decisionmaker and possibility of prompt judicial review. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601. [13] CONSTITUTIONAL LAW k42.2(l) 92k42.2(l) Owner and employees of adult cabaret had standing to challenge licensing procedural requirements on contention that requirements place unbridled discretion in government official, even though the cabaret was properly licensed and the individual plaintiffs properly permitted under the challenged ordinance, and though they had never had any substantial difficulty in acquiring licenses or permits and there was no evidence that license or permit held by them had ever been revoked. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601. [14] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance licensing procedure for adult-oriented establishments, including adult cabarets, did not contravene First Amendment, where it placed specified brief time limits on decisionmakers and provided for prompt judicial review, but procedures for renewal and revocation of licenses and permits were constitutionally deficient where they did not set time limits or provide for judicial review and it was unclear whether status quo was maintained pending decision to revoke. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11-424,1 l-424(a, c, d), 11-425, ll-425(b), 11-431, 11-432, ll-432(b). [14] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) City ordinance licensing procedure for adult-oriented establishments, including adult cabarets, did not contravene First Amendment, where it placed specified brief time limits on decisionmakers and provided for prompt judicial review, but procedures for renewal and revocation of licenses and permits were constitutionally deficient where they did not set time limits or provide for judicial review and it was unclear whether status quo was maintained pending decision to revoke. U.S.C.A. Page 4 Const. Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11-424,1 l-424(a, c, d), 11-425, ll-425(b), 11-431, 11-432, ll-432(b). [14] LICENSES k7(l) 238k7(l) City ordinance licensing procedure for adult-oriented establishments, including adult cabarets, did not contravene First Amendment, where it placed specified brief time limits on decisionmakers and provided for prompt judicial review, but procedures for renewal and revocation of licenses and permits were constitutionally deficient where they did not set time limits or provide for judicial review and it was unclear whether status quo was maintained pending decision to revoke. U.S.C.A. Const. Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11-424,1 l-424(a, c, d), 11-425, ll-425(b), 11-431, 11-432, ll-432(b). [15] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring employees and entertainers at adult-oriented establishments to obtain permits did not meet procedural standards required under First Amendment where it did not provide for judicial review of denial of permit. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11-427, 11-428. [15] LICENSES k7(l) 238k7(l) City ordinance requiring employees and entertainers at adult-oriented establishments to obtain permits did not meet procedural standards required under First Amendment where it did not provide for judicial review of denial of permit. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11-427, 11-428. [16] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) License disclosure requirements for corporate applicants as to sexually oriented businesses must be directed at those who have "controlling or significant share" in the corporation, and provisions of ordinance were invalid in requiring information about any stockholder holding more than five percent of the stock of the corporate applicant, or any other person who is interested directly in ownership or operation of the business, and in requiring that limited partners in partnership applicants furnish licensing information. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11-424, ll-424(b). [16] LICENSES k7(l) 238k7(l) License disclosure requirements for corporate applicants as to sexually oriented businesses must be directed at those who have "controlling or significant share" in the corporation, and provisions of ordinance were invalid in requiring information about any stockholder holding more than five percent of the stock of the corporate applicant, or any other person who is interested directly in ownership or operation of the business, and in requiring that limited partners in partnership applicants furnish licensing information. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11-424, ll-424(b). [17] CONSTITUTIONAL LAW k42.1(6) 92k42.1(6) Owner and employees of adult cabaret lacked standing to contest provisions of ordinance setting standards for issuance of licenses, where they were all holders of licenses or permits under the ordinance and none of the matters specified by the ordinances being disqualifying applied to any of them. U.S.C.A. Const.Amend. 1; Chattanooga, Tenn., Ordinance 8601, City Code §§ 11-425, 11-428. [18] CONSTITUTIONAL LAW k230.3(6) 92k230.3(6) City ordinance providing for regulation and licensing of adult-oriented establishments, which was a permissible incidental and content-neutral regulation of speech directed at conduct which was not speech, did not violate equal protection on ground that it did not target other sources of sexual displays such as cable television, adult magazines, adult books, sexual stimulation devices, and pornographic movies. U.S.C.A. Const.Amends. 1, 14; Chattanooga, Tenn., Ordinance § 8601. [18] LICENSES k7(2) 238k7(2) City ordinance providing for regulation and licensing of adult-oriented establishments, which was a permissible incidental and content-neutral regulation of speech directed at conduct which was not speech, did not violate equal protection on ground that it did not target other sources of sexual displays such as cable television, adult Page 5 magazines, adult books, sexual stimulation devices, and pornographic movies. U.S.C.A. Const.Amends. 1, 14; Chattanooga, Tenn., Ordinance §8601. [19] CONSTITUTIONAL LAW k230.3(6) 92k230.3(6) Local government may, without violating equal protection, classify adult- oriented establishments differently from other forms of entertainment. U.S.C.A. Const.Amend. 14. [20] CONSTITUTIONAL LAW k211(2) 92k211(2) Equal protection clause does not require city to choose between attacking every aspect of a problem or not attacking a problem at all. U.S.C.A. Const.Amend. 14. *1143 Jerry H. Summers, Chattanooga, TN, for plaintiffs. Phillip A. Noblett, W. Shelley Parker, Jr., Chattanooga, TN, for defendants. MEMORANDUM I. EDGAR, District Judge. Plaintiff DLS, Inc. ("DLS"), a Tennessee corporation, operates an "adult cabaret" in Chattanooga, Tennessee, which offers the public live semi-nude dancing by females. Plaintiff Ann Martin is the sole stockholder of DLS. Plaintiffs Karen Chadwick and Kim Tyndall are employees of DLS. The business operated by DLS is known as "Diamonds and Lace." The plaintiffs bring this action under 42 U.S.C. § 1983 for damages as a consequence of deprivation of their constitutional rights. They seek a declaratory judgment that Chattanooga's adult-oriented establishment ordinance, Ordinance 8601, as amended (herein sometimes called the "Ordinance") is unconstitutional. They also seek injunctive and other relief. Evidence and argument have been presented to the Court. In general, the Ordinance establishes procedures for licensing of certain adult-oriented establishments and a permitting procedure for employees and entertainers at those businesses. The Ordinance also regulates certain sexual conduct at these businesses and specifies certain physical structural requirements for them, This is not the first time this Court has had occasion to review the Ordinance. In Broadway Books, Inc. v. Roberts, 642 F.Supp. 486 (E.D.Tenn.1986), this Court, with some exceptions, upheld the constitutionality of the Ordinance against a challenge presented by an "adult bookstore," which along with "adult cabarets," "adult motion picture theaters," and "adult mini- motion picture theaters" are "adult-oriented establishments" under the terms of the Ordinance. See Chattanooga City Code § ll-422(a) (defining "adult- oriented establishment"). While this Court in Broadway Books did address the Ordinance in general, many of *1144 the Court's findings related to law enforcement problems and health conditions at adult bookstores, not adult cabarets. Since the Court's Broadway Books decision, the Ordinance has been amended several times, although its general structure remains intact. II. Although the plaintiffs in this case have asserted in part that their First Amendment rights have been "chilled" because they have not been permitted to engage in totally nude dancing, this case is not about nude dancing. Ordinance 8601 does not prohibit nude dancing. While nude dancing is proscribed by another Chattanooga ordinance, § 25-85 of the CHATTANOOGA CITY CODE, and by the state indecent exposure statute, Tenn.Code Ann. § 39-13-511, these pieces of legislation have not been challenged by the plaintiffs in this case. This suit was triggered by a recently enacted amendment to Ordinance 8601 which has been referred to as the "six-foot rule." This amendment reads in its entirety as follows: No entertainer, employee or customer shall be permitted to have any physical contact with any other on the premises during any performance and all performances shall only occur upon a stage at least eighteen inches (18") above the immediate floor level and removed at least six feet (6') from the nearest entertainer, employee and/or customer. Chattanooga City Code § ll-435(d). The dancers at DLS are supposed to conform their attire to the language that defines an "adult cabaret" under the Ordinance. That language is: Adult cabaret is defined to mean an establishment which features as a principle [sic ] use of its business, entertainers and/or waiters Page 6 and/or bartenders who expose to public view of the patrons within said establishment, at any time, the bare female breasts below a point immediately on top of the areola, human genitals, pubic region, or buttocks, even if partially covered by opaque material or completely covered by translucent material; including swim suits, lingerie or latex covering. Adult cabarets shall include commercial establishments which feature entertainment of an erotic nature including exotic dancers, strippers, male or female impersonators, or similar entertainers. Id. § ll-422(e). By using latex paste and makeup, dancers make their breasts appear bare. They strip down to a G-string or "T-bar." Their status could be described as "mostly nude." [1] Dancing at Chattanooga adult cabarets is at least "marginally" protected as "expressive conduct within the outer perimeters of the First Amendment." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (plurality opinion). In Barnes, four members of the five-member Supreme Court majority applied a lower level of First Amendment scrutiny to nude dancing than would be used to evaluate restrictions on other forms of expression, such as political debate. Id. at 584, 111 S.Ct. at 2469-70 (Souter, J., concurring). [FN1] FN1. The fifth member of the majority, Justice Scalia, did not see the prohibition of nude dancing as presenting a First Amendment issue. Barnes, 501 U.S. at 572-81, 111 S.Ct. at 2463-68 (Scalia, J., concurring). [2] It is noteworthy, however, that freedom of expression may not be the primary issue here. Throughout the trial, the plaintiffs expressed at least as much concern about the ability of DLS and its dancers to make money as it did with their ability to express themselves. As counsel for DLS remarked, the Ordinance "will have a very chilling effect upon ... the free enterprise system." If "free enterprise" is what is being regulated here, the City has a much freer hand. It has long been held that a municipality's exercise of the police power is not normally limited by contentions that the municipality is interfering with one's freedom to contract, or right to engage in "free enterprise." Schmidinger v. City of Chicago, 226 U.S. 578, 589-90, 33 S.Ct. 182, 185, 57 L.Ed. 364 (1913). [3] Nevertheless, because dancing is involved, precedent requires that the Ordinance *1145 be examined through the prism of the First Amendment. In Broadway Books, this Court found that while the Ordinance "may have some impact on constitutionally protected First Amendment activity ... it was not enacted for the purpose of limiting speech on the basis of its content." 642 F.Supp. at 490. The Court has heard nothing that would alter this conclusion. Thus, as was done in Broadway Books, this Court will subject the Ordinance to a time, place, and manner analysis as specified in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). [4] The Sixth Circuit recently applied the O'Brien test to a Memphis, Tennessee ordinance requiring licensing of sexually oriented businesses. See East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 226 (6th Cir.1995). The prevailing opinions in Barnes also applied the O'Brien test to nude dancing. See Barnes, 501 U.S. at 567, 111 S.Ct. at 2461 (plurality opinion); id. at 582, 111 S.Ct. at 2468-69 (Souter, J., concurring). Under the O'Brien test, To withstand constitutional scrutiny, the regulation must (1) be within the constitutional powers of government; (2) further a substantial government's interest; (3) the government interest must be unrelated to the suppression of free expression; and (4) regulation must pose an incidental burden on First Amendment freedoms that is no greater than is essential to further the government interest. East Brooks Books, 48 F.3d at 226. [5] The City has "a legitimate and substantial interest in controlling the secondary effects associated with sexually oriented businesses, and such regulation is within the constitutional powers of government." Id. What are the secondary effects here? In Broadway Books, this Court made findings that the Chattanooga Ordinance furthered a substantial government interest. Those findings related to adult bookstores which featured videos shown in closed booths. Semen, blood, used condoms, defecation, and urine on the floors of those booths were found to be a health hazard justifying an ordinance provision making the booths visible from the common area of the bookstores. 642 F.Supp. at 491. In addition, the adult bookstores had generated arrests for numerous sex-related and other crimes. Id. As Page? a result, the Ordinance's "open booth" requirement was found to further a substantial government interest. Id. That holding has been replicated in numerous cases. See, e.g., Mitchell v. Commission on Adult Entertainment Establishments, 10F.3d 123, 142 (3d Cir. 1993); Bamon Corp. v. City of Dayton, 923 F.2d 470, 473 (6th Cir. 1991); Postscript Enters, v. City of Bridgeton, 905 F.2d 223, 227 (8th Cir. 1990); Doe v. City of Minneapolis, 898 F.2d 612, 617 (8th Cir. 1990); Berg v. Health & Hosp. Corp. of Marion County, Ind., 865 F.2d 797, 802 (7th Cir. 1989); FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1304 (5th Cir. 1988), vacated in part on other grounds, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Wall Distribs., Inc. v. City of Newport News, Va., 782 F.2d 1165, 1169 (4th Cir. 1986); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1246 (9th Cir. 1982); Grunberg v. Town of East Hartford, Conn., 736 F.Supp. 430, 437 (D.Conn. 1989), aff d, 901 F.2d 297 (2d Cir. 1990) (per curiam); Movie & Video World, Inc. v. Board of Comm'rs of Palm Beach County, Fla, 723 F.Supp. 695, 699 (S.D.Fla.1989); Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585, 589 (E.D.Wis. 1988). [6] The Ordinance is challenged in this case by an "adult cabaret," another genre of "adult-oriented establishment." Plaintiff Ann Martin, the owner of DLS, owned and operated in Chattanooga an establishment known as the "Classic Cat" during the late 1970's and early 1980's, before enactment of the Ordinance. Other owners operated the Classic Cat in subsequent years. Had the Ordinance been in effect, the Classic Cat would have been an "adult cabaret" under the Ordinance's definition. In 1979, the Chattanooga Police Department was called to the Classic Cat 262 times; 1980-73 times; 1981-42 times; 1982-162 times; 1983-94 times; and 1984-55 times. Most of the calls were for run-of-the-mill assaults and related crimes. However, included were sex crimes in the form of one rape, one attempted rape, three prostitutions, and two indecent exposures. With this history, the Ordinance was *1146 originally enacted in 1986. Thus, in 1986 the Ordinance was properly directed at crime and a health hazard (adult bookstores) and at crime (adult cabarets). The Court in Broadway Books found that the Ordinance met all of the O'Brien requirements with respect to adult bookstores. While no such determination was then made as to the Ordinance's application to adult cabarets, it is clear that in 1986 the Ordinance with respect to adult cabarets met the first two O'Brien requirements. It was within the constitutional powers of government and furthered a substantial government interest. The issue in this case boils down to whether the Ordinance, as now applied to adult cabarets, meets the third and fourth O'Brien requirement. Is the Ordinance directed at a governmental interest that is unrelated to the suppression of free expression? Does it pose an incidental burden on First Amendment freedoms that is not greater than is essential to further the governmental interest? [7] Several adult cabarets have operated in Chattanooga in recent years. Currently there are four of them—DLS (Diamonds and Lace), Wild Hearts, Night Haven II, and BJ's Play Pen. Others have come and gone. Much of what occurs at these establishments is what might be described as mostly nude, erotically expressive dancing on a stage. If that were the sum total of adult cabaret entertainment activity, it is doubtful that this lawsuit would have occurred. However, since 1993, undercover agents, acting on behalf of the Chattanooga Police Department, have frequented Chattanooga's adult cabarets. They have either experienced themselves or observed a considerable amount of bodily contact between patrons and dancers. Many clubs offer sofa/couch, or "VIP" dances, where the patron is taken to a remote semi-private area. In these "dances," the female dancers sometimes do such things as sit in the patron's lap; place their breasts against the patron's face; while physical contact is maintained, gyrate in such a manner as to simulate sexual intercourse; breathe heavily into a patron's groin area; and bite and gnaw at, as well as fondle, the genitals of male patrons. There have also been instances where dancers, both during the semi-private dances and on a stage, have pulled patrons' faces into their vaginal areas. In one instance, a dancer performed a "whipped cream" dance wherein patrons were allowed to spoon feed themselves with whipped cream that had been spread on the breasts, vaginal, and anal areas of the dancer. In other instances, males have placed a peeled banana between their legs while female "dancers" have eaten the banana. [8] The "six foot rule" is obviously directed at preventing this kind of conduct. It cannot be said that this conduct is protected as free expression. A trip to one of Chattanooga's adult cabarets can be much more than merely watching an erotically PageS expressive dance. It can be a publicly displayed, tactile, body contact, sexual experience. Some of this conduct would violate Tennessee's public indecency statute, which prohibits, among other things, the public fondling of genitals. Tenn.Code Ann. § 39-13-5 ll(a)(l)(A)(iii). Although no actual sexual intercourse is involved, contact titillation at adult cabarets is tantamount to prostitution, which is defined in Tennessee as "engaging in, or offering to engage in, sexual activity as a business." Id. § 39-13-512(5). In any event, as this Court's predecessor, Frank W. Wilson, said a number of years ago, "Regulation of public and undisciplined sexual conduct is clearly within the police power of the state." Southeastern Promotions, Inc. v. Conrad, 341 F.Supp. 465, 477 (E.D.Tenn.1972), rev'd on other grounds, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). The "six foot rule" clearly meets each of the first three elements of the O'Brien test. [9] The fourth O'Brien element is that the regulation must pose an incidental burden on First Amendment freedoms that is no greater than is essential to further the government interest. A number of courts have upheld dancing distance requirements. BSA, Inc. v. King County, 804 F.2d 1104, 1110-11 (9th Cir.1986) (six feet); Kev, Inc. v. Kitsap County, 793 F.2d 1053,1061 (9th Cir.1986) (ten feet); Zanganeh v. Hymes, 844 F.Supp. 1087, 1091 (D.Md.1994) (six feet); T-Marc, Inc. v. Pinellas County, 804 F.Supp. 1500, 1506 (M.D.Fla.1992) (three feet). Whatever communicative element mostly nude dancing *1147 may have will only be slightly less effective from six feet away. Chattanooga's ordinance does not hinder anyone's view of dancing; it only puts moderate limits on how it may be viewed. This is nothing more than was done in Broadway Books when an "open booth" requirement was found to be a reasonable means of regulating the way sexually explicit material is viewed in adult bookstores. Broadway Books, 642 F.Supp. at 492; see T- Marc, 804 F.Supp. at 1507. [10] Plaintiffs contend that Ordinance 10718 (the amendment to Ordinance 8601 which adds the six-foot requirement) offends the First Amendment because there is little or no legislative history that the Chattanooga City Council was concerned with public sexual contact. Clearly such legislative history is not indispensable to the Ordinance's validity. In Barnes, Justice Souter [FN2] said, in response to a similar argument about Indiana's prohibition of nude dancing: FN2. Because Justice Souter's concurring opinion in Barnes was on the narrowest grounds of those which made up the majority, the Court is to view that opinion as the holding of the Supreme Court. Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 132-34 (6th Cir. 1994). 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. 501 U.S. at 582, 111 S.Ct. at 2469. Thus, the City of Chattanooga has no burden to produce legislative history to show secondary effects motivation. See Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135 (6th Cir. 1994) (concluding that district court erred in imposing burden on the defendant City to present affirmative evidence of secondary effects motivation). In any event, the City Council's intent is self-evident. The Court does not need legislative history to tell it that the six-foot requirement, if enforced, will limit sexual contact in adult cabarets. [11] DLS argues that compliance with the six-foot requirement [FN3] would be costly and that dancers will lose income because patrons will no longer be able to stuff tips in their garters. Various construction alternatives, however, exist, both expensive and inexpensive, that could bring DLS into compliance. For instance, a brass rail could be set up around the dancing platforms for under $5,000. This is not oppressive. The dancers can surely find other means to collect tips. FN3. DLS already complies with the 18-inch height requirement specified in the Ordinance. The six-foot requirement in the Ordinance is not a burden on First Amendment freedoms greater than is essential to further a legitimate government interest. It meets all the facets of the O'Brien test as a reasonable place and manner regulation. HI. Plaintiffs, in shotgun fashion, have challenged virtually every paragraph, jot, and title of the Ordinance as being either vague, overbroad, subject to unbridled discretion, or some other constitutional infirmity. Several of the provisions about which the plaintiffs complained have previously been upheld by this Court. See Broadway Books, 642 F.Supp. at 492-94 (upholding provisions regarding disclosure of certain information on license applications, license fee requirement, and respondeat superior). Plaintiffs have presented nothing that warrants revisiting these determinations. [12] Among the contentions of the plaintiffs is that various provisions of the Ordinance do not provide procedural safeguards. Because the City in issuing licenses and permits does not pass judgment on the content of protected expression, the Ordinance's license and permit requirements do not present the threat to First Amendment rights posed by censorship schemes. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229, 110 S.Ct. 596, 606-07, 107 L.Ed.2d 603 (1990); East Brooks Books, 48 F.3d at 224. Nonetheless, certain procedural safeguards are required. *1148 There must be (1) specified and reasonable time limits on the decisionmaker; and (2) the possibility of prompt judicial review. City of Dallas, 493 U.S. at 228, 110 S.Ct. at 606; East Brooks Books, 48 F.3d at 224; Redner v. Dean, 29 F.3d 1495, 1500 (llth Cir.1994), cert, denied, 514 U.S. 1066, 115 S.Ct. 1697, 131 L.Ed.2d 560 (1995). [13] DLS is properly licensed, and the individual plaintiffs are properly permitted under the Ordinance. They have never had any substantial difficulty in acquiring licenses or permits. There is no evidence that a license or permit held by them has ever been revoked. However, they nonetheless have standing to challenge licensing procedural requirements on their contention that those requirements place unbridled discretion in a government official. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988) ("[O]ur cases have long held that when a licensing statute allegedly vests unbridled Page 9 discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license."), cited in, East Brooks Books, 48 F.3d at 224. Licensing Procedure [14] The Ordinance's licensing provisions are contained in §§ 11-424 and 11-425. After an application for an adult-oriented establishment is filed with the City Treasurer, [FN4] it is to be distributed promptly to the Chattanooga Police Department for investigation. Chattanooga City Code § ll-424(a). The results of the investigation must be filed in writing with the City Treasurer no later than twenty days after the date of the application. Id. § ll-425(b). Within ten days after receiving the results of the investigation, the City Treasurer must notify the applicant whether the application is granted, denied, or held for further investigation. Id. § 1 l-424(c). Any investigation shall not exceed an additional thirty days. Id. An applicant has ten days to request a hearing before the City Council on an application denial. Id. § ll-424(d). While the Ordinance does not specify that the City Council must meet within any specified period of time, the Ordinance can be construed to require a meeting within a reasonable period of time. If the City Council denies a license application, the City Attorney shall within five days institute suit for declaratory judgment in state court for review of the denial. Id. It is very clear that the Ordinance's licensing procedure places specified brief time limits on the decisionmakers and does provide for prompt judicial review. This procedure, therefore, does not contravene the First Amendment. FN4. Plaintiffs contend that somehow the placing of this authority in the hands of the City Treasurer demonstrates that the City's intent is to suppress protected speech. Because the City Treasurer's function in licensing and permitting is purely ministerial, however, this fact is indeed indicative of the opposite conclusion, i.e., that the target of the Ordinance is secondary effects of adult-oriented establishments, not the content of protected speech. Permitting Procedure Page 10 [15] Employees and entertainers of adult-oriented establishments are required by §§ 11-427 and 11-428 of the Ordinance to obtain permits to be so employed. The application procedure is the same as that for licenses. However, the Ordinance does not provide for judicial review of a denial. In this respect, the Ordinance does not meet the procedural standards required by City of Dallas. Procedure for Renewal of Licenses and Permits Section 11-431 of the Ordinance contains no time limits on the decision to grant a renewal of permits and licenses, nor does it provide for judicial review. This part of the Ordinance is, therefore, procedurally deficient under City of Dallas. Revocation of Licenses and Permits The revocation procedure is set out in § 11-432. The Mayor may, for specified reasons, revoke or suspend a license or permit upon ten days written notice. Id. § ll-432(b). The licensee or permittee has a right to a hearing before the City Council. Id. However, there are no time limits on the *1149 decision to revoke, and it is unclear whether the status quo is maintained pending a decision. See City of Dallas, 493 U.S. at 228, 110 S.Ct. at 606. Furthermore, the Ordinance does not provide for judicial review of a decision to revoke a license or permit. In this respect, the Ordinance is constitutionally deficient under City of Dallas. IV. [16] Among other challenged provisions of the Ordinance is § 11-424 which requires information on the license application about "any stockholder holding more than five (5) percent of the stock of a corporate applicant, or any other person who is interested directly in the ownership or operation of the business." Chattanooga City Code § 1 l-424(b). Similar provisions have been held to be "impermissibly broad," and therefore not in compliance with the fourth part of the O'Brien test. See East Brooks Books, 48 F.3d at 226 (holding invalid an ordinance provision requiring that anyone having an ownership interest in a sexually oriented business must sign an application for a permit and meet all qualification requirements). License disclosure requirements for corporate applicants must be directed at those who have a "controlling or significant share" in the corporation. Id. The Ordinance's five percent stock ownership provision is, therefore, invalid because it cannot be said with any confidence that five percent stock ownership would represent a controlling interest. The same can be said for § ll-424(b)'s requirement that limited partners of partnership applicants furnish licensing information. Limited partners are not "legally accountable" for the operation of the business. See id. [17] Plaintiffs challenge those provisions that set the standards for issuance of licenses (§ 11-425) and permits (§ 11-428). Plaintiffs, however, lack standing to contest these provisions. Plaintiffs are all holders of licenses or permits under the Ordinance. None of the matters specified by the Ordinance as being disqualifying applies to any plaintiff. The plaintiffs, therefore, have not alleged a threat or injury that is real and immediate, as opposed to conjectural or hypothetical. See Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 715 (6th Cir.1995); East Brooks Books, 48 F.3d at 227. V. [18][19][20] Plaintiffs contend that the Ordinance is unconstitutional because the City, by means of the Ordinance, is selectively regulating only one source of sexual display. Thus, the plaintiffs argue, that the Ordinance transgresses the Equal Protection Clause of the Fourteenth Amendment because only adult-oriented establishments are targeted, and not cable television, adult magazines, adult books, sexual stimulation devices, pornographic movies, et cetera. There are several deficiencies in this argument. First, as this Court has already said, the Ordinance is a permissible incidental and content- neutral regulation of speech directed at conduct which is not speech. There has been no showing in this case that these other local phenomena produce conduct that would justify their regulation by the City. Second, there is no question that a local government may classify adult-oriented establishments differently from other forms of entertainment. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986) (upholding ordinance that distinguished between adult theaters and other kinds of theaters); Young v. American Mini Theatres, Inc., 427 Page 11 U.S. 50, 70- 71, 96 S.Ct. 2440, 2452-53, 49 L.Ed.2d 310 (1976) (plurality opinion) ("[W]e hold that the State may legitimately use the content of [erotic] materials as the basis for placing them in a different classification from other motion pictures."); East Brooks Books, 48 F.3d at 225 (rejecting contention that ordinance is content based because it targets sexually oriented businesses); Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123, 144 n. 22 (3d Cir.1993) (recognizing that the Supreme Court has held that local governments may regulate adult entertainment establishments and other establishments differently). Third, the Ordinance only deals with adult- oriented establishments as defined therein. It does not purport to regulate pornography or any other business. It, therefore, does not itself *1150 invidiously discriminate between any form of business. In any event, if these other businesses do indeed produce secondary effects that can be regulated in the same manner as adult-oriented establishments, the Equal Protection Clause does not require the City to "choose between attacking every aspect of a problem or not attacking the problem at all." Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S.Ct. 1153, 1162-63, 25 L.Ed.2d 491 (1970). VI. In summary, the Ordinance is, with the exception of certain aspects of its licensing and permitting scheme, a valid exercise of Chattanooga's municipal police power to reasonably protect the welfare of its citizens. A judgment will enter. JUDGMENT For the reasons expressed in the Court's memorandum filed herewith, Chattanooga's adult-oriented establishment ordinance, Ordinance No. 8601, as amended, is, with certain exceptions, declared to be constitutional. Those exceptions are: (1) The requirement of § ll-424(b) that license information be submitted by limited partners and by all stockholders holding more than five (5) percent of the stock; (2) The omission of any provision for prompt judicial review of a permit denial in § 11-428; and (3) The lack of decisional time limits and judicial review in § 11-431 regarding renewals of licenses and permits; and (4) Lack of a provision that the status quo will be maintained during a determination of whether a license or permit should be revoked under § 11- 432 and lack of a provision for prompt judicial review under this section. The City of Chattanooga is ENJOINED, under the Ordinance as it presently exists, from (1) acquiring license application information from all shareholders of corporate applicants with more than five (5) percent ownership and from limited partners of partnership applicants; (2) denying permits; (3) denying a license or permit renewal; and (4) revoking a license or permit. In all other respects, the plaintiffs' request for an injunction is DENIED. Plaintiffs' application for attorney's fees under 42 U.S.C. § 1988 together with supporting documentation shall be filed with the Court within thirty (30) days of the entry of this judgment. Defendants will have fifteen (15) days to respond thereto. SO ORDERED. END OF DOCUMENT 23 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Pagel United States Court of Appeals, Ninth Circuit. DREAM PALACE, an Arizona limited liability company, dba Liberty Entertainment Group, LLC; Edmund Archuleta, Jr.; William Alkire; April Cope; Henry Jenkins; Eugene Williams; Cari Elmore; Jennifer McGrath; Susan Roberts; Rachel Russo; Haley Wheeler; Corina Reville; Jill Amante, Plaintiffs- Appellants, v. COUNTY OF MARICOPA, a political subdivision of the State of Arizona, Defendant- Appellee. No. 00-16531. Argued Feb. 11,2003. Submitted and Filed Sept. 27, 2004. Background: Adult nude dancing establishment and certain of its managers and employees brought action challenging constitutionality of county's adult entertainment ordinance. The United States District Court for the District of Arizona, Stephen M. McNamee, Chief Judge, entered judgment in favor of county, and plaintiffs appealed. Holdings: The Court of Appeals, O'Scannlain, Circuit Judge, held that: (1) ordinance's licensing requirement satisfied First Amendment requirements for prior restraints on speech; (2) ordinance's requirement that managers and dancers exhaust their administrative remedies prior to seeking judicial review of denial of work permit was not a prior restraint on free speech; (3) chilling effect on protected expression created by ordinance required injunction prohibiting county from disclosing personal information about adult entertainers under state public records law; (4) ordinance's hours of operations restrictions served substantial government interest in curbing secondary effects associated with adult entertainment establishments; (5) ordinance's requirement that managers of adult entertainment establishments obtain work permits was a reasonable time, place, and manner restriction on free speech; and (6) ordinance, by effectively banning nude and semi-nude dancing through its prohibition on "simulated sex acts" during the course of a performance, violated First Amendment free speech protections. Affirmed in part, reversed in part, and remanded. Canby, Circuit Judge, filed concurring opinion. West Headnotes [1] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Alleged prior restraints on free speech will be upheld only if they provide for a prompt decision during which the status quo is maintained, and there is the opportunity for a prompt judicial decision. U.S.C.A. Const. Amend. 1. [2] Federal Civil Procedure €=>103.2 170Akl03.2 Most Cited Cases The "doctrine of standing" addresses the question whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. [3] Federal Civil Procedure €=103.2 170Akl03.2 Most Cited Cases [3] Federal Civil Procedure €==>103 3 170Akl03.3 Most Cited Cases At an irreducible minimum, Article III of the United States Constitution requires a litigant invoking the authority of a federal court to demonstrate: (1) that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, (2) that the injury fairly can be traced to the challenged action, and (3) that the injury is likely to be redressed by a favorable decision. U.S.C.A. Const. Art. 3, § 1 et seq. [4] Constitutional 92k42.2(l) Most Cited Cases Under the overbreadth doctrine, a plaintiff may © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 2 challenge government action by showing that it may inhibit the First Amendment rights of parties not before the court. U.S.C.A. Const.Amend. 1. [5] Constitutional Law €=>42.2(1) 92k42.2(l) Most Cited Cases The overbreadth doctrine functions as an exception to the general prohibition on a litigant's raising another person's legal rights, and is based on the idea that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. U.S.C.A. Const.Amend. 1 . [6] Constitutional Law C=>42.2(1) 92k42.2(l) Most Cited Cases The overbreadth doctrine does not affect the rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court's jurisdiction. U.S.C.A. Const.Amend. 1. [7] Constitutional Law €=^42.2(1) 92k42.2(l) Most Cited Cases Previously existing adult nude dancing establishment had standing to appeal district court's decision that county adult entertainment ordinance's licensing requirements was unconstitutionally overbroad as applied to new businesses; ordinance applied to both preexisting businesses and new businesses, and plaintiffs refusal to apply for the necessary permit placed it in danger of being prosecuted for noncompliance. U.S.C.A. Const. Art. 3, § 1 et seq.; U.S.C.A. ConstAmend. 1. [8] Federal Civil Procedure €=^103.2 170Akl03.2 Most Cited Cases [8] Federal Courts €==>12.1 170Bkl2.1 Most Cited Cases The issues of mootness and standing are closely related, though circumstances that would not support standing as an initial matter may nevertheless be sufficient to defeat a mootness challenge on appeal. [9] Federal Courts 170Bkl2.1 Most Cited Cases The question of mootness focuses upon whether courts can still grant relief between the parties. [10] Federal Courts €=>723.1 170Bk723.1 Most Cited Cases If an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal is moot and must be dismissed; however, while a court may not be able to return the parties to the status quo ante, an appeal is not moot if the court can fashion some form of meaningful relief. [11] Federal Courts C=>724 170Bk724 Most Cited Cases Previously existing adult nude dancing establishment's overbreadth challenge to adult entertainment ordinance's licensing requirements was not rendered moot on appeal after district court ruled that the ordinance was unconstitutional as applied to preexisting businesses, where county was in the process of amending those provisions so that the challenged restrictions would apply to pre-existing businesses. U.S.C.A. Const.Amend. 1. [12] Constitutional Law €=90(3) 92k90(3) Most Cited Cases A prior restraint on free speech exists when the enjoyment of protected expression is contingent upon the approval of government officials. U.S.C.A. Const.Amend. 1. [13] Constitutional Law €=90.4(3) 92k90.4(3) Most Cited Cases [13] Public Amusement and Entertainment €=9(1) 315Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) County adult entertainment ordinance requiring all businesses which come within its purview to apply for and to obtain a license before engaging in business was a prior restraint on free speech. U.S.C.A. Const. Amend. 1. [14] Constitutional Law €=90(3) 92k90(3) Most Cited Cases Prior restraints on free speech are not unconstitutional > 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 3 perse. U.S.C.A. Const.Amend. 1. [15] Constitutional Law €=^90.4(3) 92k90.4(3) Most Cited Cases [15] Public Amusement and Entertainment €=^9(1) 315Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) County adult entertainment ordinance's licensing requirement was not an unconstitutional prior restraint on free speech because it placed the burden of proof in the administrative appeals process on the license applicant. U.S.C.A. Const.Amend. 1. [16] Constitutional Law €==>90.4(1) 92k90.4(l) Most Cited Cases First Amendment requires that an adult business subject to a licensing scheme not only have prompt access to the courts in the event the license is denied, but also receive a prompt decision from the courts on the legitimacy of such a denial. U.S.C.A. Const.Amend. 1. [17] Constitutional Law €=90.4(3) 92k90.4(3) Most Cited Cases [17] Public Amusement and Entertainment O=?9(l) 315Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) County adult entertainment ordinance's licensing requirement, read in context of Arizona law, provided for a sufficiently prompt judicial determination of the legitimacy of a license denial to satisfy First Amendment requirements for prior restraints on speech; Arizona courts had procedural tools available if it was necessary to expedite the review of a license denial, and licensing decision under ordinance depended on a set of reasonably objective factors. U.S.C.A. Const.Amend. 1. [18] Constitutional Law €==>90(3) 92k90(3) Most Cited Cases When the First Amendment requires certain safeguards before a system of prior restraint may be enforced, a local government cannot evade that requirement by pointing to its lack of legal authority to ensure such safeguards exist; nevertheless, nothing prevents a county from relying on state law procedures to ensure that First Amendment interests are adequately protected. U.S.C.A. ConstAmend. 1. [19] Federal Courts €=>614 170Bk614 Most Cited Cases Adult nude dancing establishment's arguments, raised for first time on appeal, that county adult entertainment ordinance did not provide constitutionally sufficient judicial review, fell within exception to rule precluding review of issues raised for first time on appeal; arguments were based entirely in law and did not rely on the factual record, and county had full opportunity to brief its response to the new arguments. [20] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [20] Public Amusement and Entertainment €^>9(1) 315Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) Licensing provision of county adult entertainment ordinance provided for constitutionally sufficient judicial review to satisfy First Amendment requirements for prior restraints on speech, even if "special action" review by Arizona courts provided for in ordinance referred to a proceeding in which Arizona courts had discretion to deny jurisdiction; ordinance also authorized appeal from a denial of license by any "other available procedure," which would include suit for injunctive or declaratory relief. U.S.C.A. Const.Amend. 1; A.R.S. § 12-1832. [21] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [21] Public Amusement and Entertainment €=>9(2) 315Tk9(2) Most Cited Cases (Formerly 376k3 Theaters and Shows) County adult entertainment ordinance did not violate First Amendment requirements for prior restraints on speech by placing the burden of proof on managers and dancers in administrative proceedings challenging denial of work permit required by the ordinance; county did not exercise discretion by passing judgment on the content of any protected speech, and permit applicants had incentive to vigorously pursue an administrative > 2005 Thomson/West No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990,04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 4 remedy in event of an adverse decision on an application. U.S.C.A. Const. Amend. 1. [22] Constitutional Law 0=^90.4(3) 92k90.4(3) Most Cited Cases [22] Public Amusement and Entertainment €=>9(1) 3 15Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) County adult entertainment ordinance's requirement that managers and dancers exhaust their administrative remedies prior to seeking judicial review of denial of work permit required by the ordinance was not a prior restraint on free speech; ordinance guaranteed a "specified and reasonable time" within which an administrative decision was required, and permitted applicants to continue to work pending the outcome of administrative and judicial review. U.S.C.A. Const. Amend. 1. [23] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [23] Public Amusement and Entertainment €=»9(2) 315Tk9(2) Most Cited Cases (Formerly 376k3 Theaters and Shows) Provision of county adult entertainment ordinance placing the burden of seeking judicial review on managers and dancers denied work permit required under ordinance was not an unconstitutional prior restraint on free speech. U.S.C.A. Const.Amend. 1. [24] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [24] Public Amusement and Entertainment €=>9(1) 315Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) Provision of county adult entertainment ordinance requiring disclosure of information regarding names, addresses, and telephone numbers in manager and employee work permit applications did not violate First Amendment free speech protections. U.S.C.A. Const. Amend. 1. [25] Injunction 212kl4 Most Cited Cases [25] Injunction 212kl6 Most Cited Cases The requirements for the issuance of a permanent injunction are (1) the likelihood of substantial and immediate irreparable injury; and (2) the inadequacy of remedies at law. [26] Federal Courts €=>814.1 170Bk814.1 Most Cited Cases The district court's refusal to grant a permanent injunction is reviewed for an abuse of discretion. [27] Civil Rights 78kl456 Most Cited Cases Chilling effect on protected expression created by work permit provision of county adult entertainment ordinance, making confidentiality of personal information about adult entertainers in work permit applications subject to requirements of state public records law, required injunction prohibiting county from disclosing such information under the public records law; state law made such information presumptively available to anyone, thus inhibiting the ability or the inclination to engage in protected expression. U.S.C.A. Const.Amend. 1; A.R.S. § 39-121. [28] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases The First Amendment does not permit county to put employees of adult entertainment establishments to the choice of either applying for a permit to engage in protected expression in circumstances where they expose themselves to unwelcome harassment from aggressive suitors and overzealous opponents of such activity, or of choosing not to engage in such activity out of concern for their personal safety. U.S.C.A. Const. Amend. 1. [29] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases Hours of operation restrictions in county adult entertainment ordinance, prohibiting provision of adult services during nighttime hours, were designed to >2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 5 combat secondary effects of adult entertainment establishments on surrounding community, subjecting ordinance to intermediate scrutiny under First Amendment free speech analysis; ordinance's statement of purpose stated that harmful secondary effects such as prostitution, drug abuse, and health risks, were more pronounced when conducted continuously or during late night hours, and county board heard extensive pre-enactment evidence regarding secondary effects. U.S.C.A. Const. Amend. 1. [30] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [30] Public Amusement and Entertainment €=>9(1) 3 15Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) Evidence established that hours of operations restrictions in county's adult entertainment ordinance were designed to serve a substantial government interest in curbing the secondary effects associated with adult entertainment establishments, as required by First Amendment free speech protections; county board considered comprehensive summaries detailing secondary effect findings from other jurisdictions, and ordinance permitted adult businesses to operate approximately 5,980 hour per year. U.S.C.A. Const. Amend. 1. [31] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [31] Public Amusement and Entertainment 315Tk35(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) County had a substantial interest in curbing the secondary effects associated with adult entertainment establishments, in determining whether ordinance governing such businesses violated First Amendment free speech protections. U.S.C.A. Const.Amend. 1. [32] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [32] Public Amusement and Entertainment €=>9(1) 315Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) Hours of operations restrictions in county's adult entertainment ordinance did not unreasonably limit alternative avenues of communication, as required by First Amendment free speech protections; ordinance permitted adult businesses to operate approximately 5,980 hour per year. U.S.C.A. Const.Amend. 1. [33] Constitutional Law €=^46(1) 92k46(l) Most Cited Cases First Amendment free speech challenge to county adult entertainment ordinance's requirement that managers of adult entertainment establishments wear identification cards during work hours was moot, where public disclosure of personal information about such managers had been ordered enjoined. U.S.C.A. Const.Amend. 1. [34] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [34] Public Amusement and Entertainment C=>9(1) 315Tk9(l) Most Cited Cases (Formerly 376k3 Theaters and Shows) County adult entertainment ordinance's requirement that managers of adult entertainment establishments obtain work permits was a reasonable time, place, and manner restriction on free speech; legislative record indicated that adult businesses were associated with a variety of secondary effects, such as the presence of organized crime and money laundering, which directly involved employees in management positions, and permit process could combat such effects by screening out potential managers with a criminal history. U.S.C.A. Const. Amend. 1. [35] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [35] Public Amusement and Entertainment C^>9(2) 315Tk9(2) Most Cited Cases (Formerly 376k3.50 Theaters and Shows) County adult entertainment ordinance, by effectively banning nude and semi-nude dancing through its prohibition on "simulated sex acts" during the course of a performance, exceeded scope of county's police i2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990,04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 6 powers to restrict constitutionally protected expression; ordinance was not limited to establishments holding a liquor license and restricted the particular movements and gestures a dancer could make during the course of a performance. U.S.C.A. Const.Amend. 1. [36] Constitutional Law €=90.4(3) 92k90.4(3) Most Cited Cases [36] Public Amusement and Entertainment 0=9(2) 315Tk9(2) Most Cited Cases (Formerly 376k3.50 Theaters and Shows) County adult entertainment ordinance, by effectively banning nude and semi-nude dancing through its prohibition on "simulated sex acts" during the course of a performance, violated First Amendment free speech protections; ordinance restricted in sweeping terms the ability of erotic dancers to convey their intended erotic message. U.S.C.A. Const.Amend. 1. [37] Federal Courts €=18 170Bkl8 Most Cited Cases District court did not abuse its discretion when it declined to exercise supplemental jurisdiction over state law challenges to county adult entertainment ordinance, district court had decided each and every First Amendment claim over which it had original jurisdiction, and remaining state law claims, concerning issues of the balance of power between state and local authorities in Arizona, involved delicate issues of state law. U.S.C.A. ConstAmend. 1; 28 U.S.C.A. § 1367. [38] Statutes €=64(1) 361k64(l) Most Cited Cases An entire statute need not be declared unconstitutional if constitutional portions can be severed. [39] Statutes €=64(1) 361k64(l) Most Cited Cases [39] Statutes €=188 361kl88 Most Cited Cases Under Arizona law, the test for severability of a statute's unconstitutional provisions requires ascertaining legislative intent; the most reliable evidence of that intent is the language of the statute. [40] Counties €=55 104k55 Most Cited Cases Unconstitutional portions of county's adult entertainment ordinance, permitting disclosure of personal information about erotic dancers and prohibiting specified sexual activity, were severable from remainder of the ordinance; county board has clearly expressed its intent that unconstitutional provisions were severable, and vast majority of the provisions in the ordinance, including licensing scheme, and multiple operating restrictions, withstood constitutional scrutiny. *995 G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, CA, argued the cause and filed briefs for appellant Dream Palace, et al. John H. Weston was on the briefs. Scott E. Boehm, Copple, Chamberlin, Boehm & Murphy, P.C., Phoenix, AZ, argued the cause and filed briefs for appellee Maricopa County. Terry E. Eckhart, Office of Maricopa County Attorney, was on the briefs. Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CV-97-02357-SMM. Before: CANBY, O'SCANNLAIN, and W. FLETCHER, Circuit Judges. Opinion by Judge O'SCANNLAIN; Concurrence by Judge CANBY. *996 O'SCANNLAIN, Circuit Judge. We must decide whether a local ordinance imposing certain licensing requirements and operating restrictions on adult entertainment establishments violates the First Amendment. I A In 1996, the Arizona legislature amended § 11-821 of the Arizona Revised Statutes, to authorize counties to enact zoning ordinances with respect to adult entertainment establishments. See Ariz.Rev.Stat. § 11-821. Acting on its new authority, the Maricopa © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384F.3d990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page? County Board of Supervisors asked its Planning and Development Department to research and to prepare a draft of what would eventually become Ordinance P-10, at issue in this case. At the behest of the county board, the planning department prepared a four-page report for board members, addressing the negative effects associated with adult-oriented businesses. In addition to discussing the Supreme Court's decisions in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), Young v. American Mini Theatres, 427 U.S. 50,96 S.Ct. 2440,49 L.Ed.2d 310 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), the report cited seventeen studies documenting the negative secondary effects associated with adult-oriented establishments. Summarizing the findings of these studies, the report concluded that adult-oriented businesses were associated with "unlawful and unhealthy activities" and generally lead to illicit sexual behavior, crime, unsanitary conditions, and the spread of sexually-transmitted diseases if not properly regulated. Board members were provided with copies of studies from Phoenix and Los Angeles documenting such negative secondary effects, as well as a fourteen-page summary of eleven other studies. Public hearings were held with respect to the proposed ordinance on April 23, 1997. Two people spoke against the ordinance at those hearings, a local bookstore owner and John Weston, the attorney for the plaintiffs in this case. Others spoke in favor, including state senator David Peterson and state representatives Marilyn Jarrett and Karen Johnson. Most of the testimony pro and con focused on the legality of the proposed ordinance and the need for regulation in light of the perceived secondary effects associated with adult-oriented businesses. The county planning director, Ms. Herberg-Kusy, also addressed the board at these hearings, urging that the studies provided the necessary empirical data to conclude that adult-oriented businesses have a negative secondary impact on surrounding communities. The board voted unanimously to adopt the ordinance, and it became effective on May 27, 1997. B Ordinance P-10 is a comprehensive scheme for the licensing and regulation of businesses which come within its purview: that is, adult entertainment businesses. See Ordinance § 2. [FNI] Businesses, managers and employees that come within the ordinance's sweep are each required to obtain a license or permit prior to operating, or working at, an adult entertainment business. Certain procedural safeguards, at issue in this case, are in place with respect to the county s handling of applications for *997 licenses and permits. In addition, the ordinance contains numerous operating restrictions on adult-oriented businesses, certain of which are also at issue in this litigation. FNI. Adult-oriented business means "adult arcades, adult bookstores or adult video stores, cabarets, adult live entertainment establishments, adult motion picture theaters, adult theaters, [and] massage establishments that offer adult service or nude model studios." Ordinance § 2. Each of these terms are in turn defined under the ordinance. The plaintiffs in this action are Dream Palace, a live adult nude dancing establishment in Maricopa County, and certain of its managers and employees (collectively "Dream Palace"). [FN2] When Ordinance P-10 became effective, Dream Palace and its managers and employees did not apply for a business license or for work permits, as required by the ordinance. Instead, on November 13, 1997, they filed suit in federal district court challenging the ordinance on First Amendment grounds, as well as certain state law grounds. FN2. Dream Palace is a "live nude entertainment establishment" within the meaning of the Ordinance. See Ordinance § 2. In 1998, apparently at the instigation of Maricopa County, the Arizona legislature enacted Arizona Revised Statute § 11-821(B). Section 11- 821(B) expressly provided Arizona counties with the authority to license and to regulate new or existing adult-oriented business, and to impose work permit requirements on © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384F.3d990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) PageS nude dancers and business managers. [FN3] FN3. In pertinent part, § 11-821(8) provides: [T]he county plan ... [m]ay provide for the regulation and use of business licenses, adult oriented business manager permits and adult service provider permits in conjunction with the establishment or operation of adult oriented businesses and facilities, including adult arcades, adult bookstores or video stores, cabarets, theaters, massage establishments and nude model studios. While the state was amending the relevant statute, the county was in the process of amending Ordinance P-10. The proposed amendments were in the nature of minor clarifications; the substance of the ordinance remained unchanged. At a June 17, 1998 board meeting to discuss the amendments, a total of eight further secondary effects studies were made available to board members. On September 2, 1998, the board unanimously voted to approve the amendments. See Maricopa County, Az., Ordinance P-10 (Sept. 2,1998) (Attached as Appendix to this Opinion). In the wake of the adopted amendments, Dream Palace filed an amended complaint in district court, renewing Dream Palace's frontal assault on several provisions in the ordinance on First Amendment and state law grounds. Dream Palace simultaneously filed eight separate motions for partial summary judgment. The county filed a single cross-motion for summary judgment on all issues. On September 30, 1999, the district court granted summary judgment in favor of the county on all issues save two. Specifically, with respect to the requirement that an adult entertainment business must obtain a license to operate, the district court held that the procedural safeguards in place were insufficient with respect to pre-existing businesses like Dream Palace, because there was no guarantee that a pre-existing business could continue to operate pending the outcome of an appeals process. The district court also held that the requirement that nude and semi-nude dancers wear identification cards was invalid under Renton. The county has not appealed from either of these two rulings. The district court abstained from addressing the state law claims of preemption and ultra vires. Dream Palace subsequently filed a motion to alter or to amend the judgment, and asked the district court to explain its decision to abstain from addressing the state law claims. The district court denied the motion. In doing so, it explained that it did not address the state law claims because "the various motions for summary *998 judgment have resolved all of Plaintiffs' federal constitutional claims," and that the "remaining state law claims raise delicate issues involving the interpretation and application of Arizona law." Dream Palace timely appeals. II The Supreme Court has ruled that nude dancing of the type performed at Dream Palace is "expressive conduct" which falls "within the outer ambit of the First Amendment's protection." City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion). Therefore, the ordinance must be analyzed to ensure it does not unduly impair the exercise of First Amendment rights. The specific First Amendment tests that may apply, and the determination as to the proper level of scrutiny, depends for the most part on the nature of the provision that Dream Palace seeks to challenge. [1] Here, Dream Palace challenges several provisions in the ordinance as invalid prior restraints. Those provisions will be upheld only if they provide for a prompt decision during which the status quo is maintained, and there is the opportunity for a prompt judicial decision. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,228,110 S.Ct. 596,107L.Ed.2d603 (1990). Dream Palace also challenges several of the ordinance's operating restrictions. We assess the constitutionality of those provisions under the "secondary effects" test enunciated by the Supreme Court in Renton, 475 U.S. at 47-54, 106 S.Ct. 925. Ill Dream Palace first challenges the requirement that adult entertainment businesses obtain a license prior to conducting business in Maricopa County. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 9 The district court in this case drew a distinction between pre-existing businesses on the one hand, and new businesses on the other. Specifically, with respect to pre-existing businesses, it found that "there is no guarantee in the ordinance that existing businesses or persons working as managers or adult service providers will be able to continue operating beyond the 180 day period," [FN4] and for that reason, the licensing scheme was invalid. The district court found, however, that the remaining provisions were valid. Specifically, the district court found that "the County may regulate and license new businesses and does so in this case in as expeditious a manner as possible given administrative realities." The district court held that, with respect to new businesses, the fact that the ordinance "does not provide for a deadline for judicial decisions" did not render the licensing scheme unconstitutional because "the County has no authority to require an absolute time period in which the state court process has to occur." FN4. The 180 day period the district court refers to is to be found in section 24, which states that pre-existing businesses "shall be in full compliance with this ordinance, including receipt of any required license or permit, within one hundred eighty days after the effective date" of the ordinance. B Before reaching the merits, we must consider the county's argument that Dream Palace, a previously existing business, lacks standing to appeal the district court's decision that the ordinance's licensing requirements can constitutionally be applied to new businesses. *9991 [2] [3] The doctrine of standing addresses the question whether "a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." Sierra Club v. Morton, 405 U.S. 727,731,92S.Ct. 1361,31 L.Ed.2d 636 (1972). At an "irreducible minimum," Article III of the United States Constitution requires a litigant invoking the authority of a federal court to demonstrate: (1) "that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," (2) "that the injury fairly can be traced to the challenged action," and (3) that the injury is "likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (internal quotation marks and citations omitted). [4][5][6] Here, Dream Palace asserts an overbreadth challenge to the business license requirements. Under the overbreadth doctrine, a plaintiff may challenge government action by showing that it may inhibit the First Amendment rights of parties not before the court. See Young v. City ofSimi Valley, 216 F.3d 807, 815 (9th Cir.2000); 4805 Convoy. Inc. v. City of San Diego, 183 F.3d 1108, 1111 (9th Cir.1999). The overbreadth doctrine functions as an exception to "the general prohibition on a litigant's raising another person's legal rights," Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), and is based on the idea 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). However, the overbreadth doctrine "does not affect the rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court's jurisdiction." 4805 Convoy, Inc., 183 F.3d at 1112 (quoting Bordellv. General Elec. Co., 922 F.2d 1057, 1061(2dCir.l991)); see also Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (to have overbreadth standing, "[tjhere must be a claim of specific present objective harm or a threat of specific future harm.") (internal quotation marks omitted). Thus, Dream Palace must still satisfy the injury-in-fact requirement to raise a challenge to the ordinance. [7] At the outset of these proceedings, we think there is no dispute that Dream Palace had the necessary © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384F.3d990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 10 standing to challenge the overall licensing requirements. By its express terms, the ordinance applied to both preexisting businesses and new businesses, and Dream Palace's refusal to apply for the necessary permit therefore placed it in danger of sustaining a direct injury; that is, prosecution for noncompliance with the ordinance. See City of Los Angelesv. Lyons, 461 U.S. 95,101-02,103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Only when the district court ruled that the license requirements were invalid with respect to one class of businesses, but valid with respect to another, did a serious question with respect to Dream Palace's standing arise. The issue is therefore more properly characterized as one of mootness on appeal. Dream Palace's challenge to the business license scheme will be moot, and hence not justiciable, if intervening events have caused it completely to lose "its character as a present, live controversy of the kind that must exist if [a court is] to avoid advisory opinions on abstract propositions of law." Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (per curiam); see also Pap's A.M., 529 U.S. at 287, 120 S.Ct. 13 82 (" [A] case is moot when the issues presented are no *1000 longer 'live' or the parties lack a legally cognizable interest in the outcome." (modification in original)). [8][9][10] The issues of mootness and standing are closely related, see United States Parole Comm 'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), though circumstances that would not support standing as an initial matter may nevertheless be sufficient to defeat a mootness challenge on appeal. See Friends of the Earth, Inc. v. LaidlawEnvtl. Servs., 528 U.S. 167,189-92,120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th Cir.2003) ("The Supreme Court has emphasized that the doctrine of mootness is more flexible than other strands of justiciability doctrine."). The question of mootness "focuses upon whether we can still grant relief between the parties. If an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal is moot and must be dismissed.... However, while a court may not be able to return the parties to the status quo ante ..., an appeal is not moot if the court can fashion some form of meaningful relief..." In rePatttillo, 271 F.3d 898,901 (9th Cir.2001) (quoting United States v. Arkison, 34 F.3d 756,759 (9th Cir. 1994) (modifications in original) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992))). We must examine whether relief against the ordinance's provisions could meaningfully improve Dream Palace's position; if it could not, then Dream Palace has no continuing stake in the outcome sufficient to survive a mootness challenge. [11] The problem for Dream Palace is obvious: it is a pre-existing business, and the district court has previously ruled that the business license requirement cannot be applied to such businesses. That ruling has not been appealed. Since Dream Palace cannot be subject to the ordinance as it stands, it may at first be difficult to see how it has a "present, live controversy," Hall, 396 U.S. at 48, 90 S.Ct. 200, sufficient to go forward with its claim that the ordinance is also invalid with respect to new businesses. However, the county has conceded in its brief and at oral argument that rather than challenging the district court's ruling with respect to pre-existing businesses like Dream Palace, it is in the process of amending those provisions so that the challenged restrictions will apply to pre-existing businesses. At such time, the provisions Dream Palace now seeks to challenge can and will apply to Dream Palace and its employees. It therefore appears that Dream Palace is indeed "immediately in danger of sustaining some direct injury" as a result of the official conduct it seeks to challenge. Id. In Erie, the owners of the plaintiff nude dancing club filed a motion to dismiss the case as moot, because the club had ceased to operate in Erie County after the Supreme Court had granted certiorari. 529 U.S. at 287, 120 S.Ct. 1382. The Supreme Court held that "[s]imply closing [the club] is not sufficient to render th[e] case moot" because of the possibility that the club owners "could again decide to operate a nude dancing establishment in Erie," in which case, the owners would © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384F.3d990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) ' Page 11 once again be subject to the city ordinance. Id. Similarly, in Clark v. City ofLakewood, 259 F.3d 996 (9th Cir.2001), we considered a situation where an owner's license to operate an adult cabaret had expired after the district court had rendered a decision in the city's favor, and the owner had not sought renewal. Id. at 1011. We nonetheless held that the case was not moot *1001 because of the plaintiffs "stated intention ... to return to business." Id. at 1012. Given the county's expressed intention to amend the ordinance so as to have it apply to Dream Palace, the possibility of immediate injury to the plaintiff in this case is more likely to come to pass than either of the scenarios contemplated in Erie and Clark. Dream Palace will soon be subject to the provisions it now seeks to challenge, and consequently, there is a "live controversy." Hall, 396 U.S. at 48, 90 S.Ct. 200. We are satisfied, therefore, that its overbreadth challenge to the business license requirement is not moot. Turning to the merits, Dream Palace asserts that the procedural safeguards with respect to the county's decision on a license application are insufficient to protect First Amendment rights. [12][13][14] 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, 711-13, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Since Ordinance P-10 requires all businesses which come within its purview to apply for and to obtain a license before engaging in business, [FN5] the licensing scheme is quite obviously a prior restraint, and properly analyzed as such. Prior restraints are not unconstitutional per se, however. FW/PBS, 493 U.S. at 225, 110 S.Ct. 596. The Supreme Court has said that to pass constitutional muster, a licensing scheme that regulates adult entertainment businesses must contain two procedural safeguards: First, "the licensor must make the decision whether to issue the license within a specified and reasonable 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. [FN6] FN5. Section 5 provides that "a person or enterprise may not conduct an adult oriented business without first obtaining an adult oriented business license...." FN6. These two requirements were first set forth by the Supreme Court in Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Freedman also held that the government bore the burden of going to court in order to justify the licensing scheme. Id. at 59-60, 85 S.Ct. 734. Justice O'Connor's three-judge plurality opinion in FW/PBS dispensed with this third procedural safeguard in the context of adult business licensing schemes. FW/PBS, 493 U.S. at 229-30, 110 S.Ct. 596. In Baby Tarn & Co., Inc. v. City of Las Vegas, 247 F.3d 1003 (9th Cir.2001) ('Baby Tarn III"), we followed the plurality opinion in FW/PBS and held that "placing the burden of instituting proceedings on the state does not apply to licensing schemes such as the one challenged here." Id at 1008 (citing FW/PBS, 493 U.S. at 228-30, 110 S.Ct. 596). 1 [15] First, Dream Palace claims that the ordinance is invalid because it places the burden of proof in the administrative appeals process on the applicant. See Ordinance P-10 § 18 ("Respondent shall have the burden of proving by a preponderance of the evidence that the denial ... was arbitrary or capricious and an abuse of discretion."). The fact the burden is on the applicant during these administrative proceedings is of no consequence, at least from the standpoint of the First Amendment. In FW/PBS, the Supreme Court rejected the argument that, in the event of judicial review, the regulator must bear the burden of proof once in court. Id at 230, 110 S.Ct. 596. The Court reasoned that under the ordinance, "the city does not exercise discretion by passing judgment on the content of any protected speech," but merely engages in "a ministerial act that is not presumptively invalid." *1002 Id at 229, 110 S.Ct. 596. Furthermore, the applicant has a great © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 12 deal at stake when a license application is denied, and as such "there is every incentive for the applicant to pursue a license denial through court." Id. at 230, 110 S.Ct. 596. For these reasons, the Court concluded that "the First Amendment does not require that the city bear the burden of going to court to effect the denial of a license application or that it bear the burden of proof once in court." Id. Precisely the same circumstances arise here. In deciding whether to issue a license, the licensor "does not exercise discretion by passing judgment on the content of any protected speech." Id. at 229, 110 S.Ct. 596. Moreover, "[b]ecause the license is the key to the applicant's obtaining and maintaining a business," id. at 229-30, 110 S.Ct. 596, Dream Palace has an incentive vigorously to pursue administrative review of an adverse decision. We fail to see why the First Amendment would require the county to bear the burden in administrative review proceedings, but not in court. Requiring the applicant to bear the burden of proof in administrative proceedings is, therefore, valid under the First Amendment. Second, Dream Palace argues that the ordinance fails to comply with the second of the FW/PBS requirements: that there be "the possibility of prompt judicial review." FW/PBS, 493 U.S. at 228, 110 S.Ct. 596. Dream Palace originally rested this argument on our holding in Baby Tarn & Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (9th Cir.1998) ("Baby Tarn I"), that an adult business could not be subjected to a content-based licensing regime where "[tjhere is no provision that a judicial hearing must be had or a decision must be rendered within a prescribed period of time." Id. at 1101. Baby Tarn I, however, is no longer good law after the Supreme Court's decision in City of Littleton v. Z.J. GiftsD-4, L.L.C., --U.S. —-, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004). That case, decided after the parties' initial briefing in this case, now provides the framework for analyzing the judicial-review provision of Ordinance P-10. [FN7] FN7. The parties have filed supplemental briefs on the effect of City of Littleton. Dream Palace, in its brief, acknowledges that its original argument relying on Baby Tarn I is now without merit. [16] The Supreme Court's opinion in City of Littleton makes clear that the FW/PBS requirement of "prompt judicial review" must be read "as encompassing a prompt judicial decision." Mat 2224. In other words, the First Amendment requires that an adult business subject to a licensing scheme not only have prompt access to the courts in the event the license is denied, but also receive a prompt decision from the courts on the legitimacy of such a denial. This follows, the Court explains, from two principles: first, 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," FW/PBS, 493 U.S. at 228, 110 S.Ct. 596; and second, that "[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." City of Littleton, 124 S.Ct. at 2224 (internal quotation marks omitted). [ 17] Our task, then, is to determine whether Ordinance P-10, read in its proper context within Arizona law, provides for a sufficiently prompt judicial determination *1003 of the legitimacy of a license denial. City of Littleton provides the starting point for that determination. At issue in that case was a licensing ordinance enacted by the city of Littleton, Colorado. Like Ordinance P-10, the Littleton ordinance required adult businesses to obtain a license in order to operate; also like Ordinance P-10, it set out a list of objective circumstances that, if present, required the city to deny the license application. City of Littleton, 124 S.Ct.. at 2222 (citing Littleton City Code §§ 3-14-2, 3-14-3, 3-14-5, 3-14-7, 3-14-8). The Littleton ordinance provided that the city's final licensing decision could be "appealed to the [state] district court pursuant to Colorado rules of civil procedure." Id. (citing Littleton CityCode§3-14-8(B)(3)). The Supreme Court held that by providing for judicial © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 13 review through the ordinary process of Colorado state courts, the ordinance "offer[ed] adequate assurance, not only that access to the courts can be promptly obtained, but also that a judicial decision will be promptly forthcoming." Id. at 2224. In so holding, the Court explicitly accepted the argument that "the First Amendment does not require special 'adult business' judicial review rules." Id. Rather, the Court held, the regular judicial process of the Colorado state courts was sufficient "as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly." Id. In effect, the Court in City of Littleton established a presumption that state courts function quickly enough, and with enough solicitude for the First Amendment rights of license applicants, to avoid the unconstitutional suppression of speech that arises from undue delay in judicial review. [FN8] The Court provided several reasons why ordinary state-court procedures suffice. First, state courts have tools at their disposal to expedite proceedings when necessary. Id. at 2224-25. Second, there is no reason to doubt that state judges are willing to use those procedures when necessary to keep justice delayed from becoming justice denied; moreover, if some state court should fail in its duties, "federal remedies would provide an additional safety valve." Id. at 2225 (citing 42 U.S.C. § 1983). Third, the potential harm to First Amendment values is attenuated when the licensing decision depends on reasonably objective criteria, both because the use of objective criteria is "unlikely in practice to suppress totally the presence" of a certain form of protected expression, and because the use of objective criteria typically lends itself to "simple, hence expeditious" judicial review. Id. Fourth and finally, local governments often lack the legal authority to impose deadlines on state courts; thus, it is reasonable for them to depend on state-law procedural safeguards against undue delay. Id. FN8. This presumption applies to facial challenges to licensing ordinances. City of Littleton, 124 S.Ct. at 2226. License applicants may still bring an as-applied challenge to argue that a state is failing to provide adequate judicial review. City of Littleton's presumption that regular state-court review is adequate applies equally to this facial challenge to Ordinance P-10. Each of the rationales for that presumption set out by the Court in City of Littleton applies here. First, the Arizona courts have procedural tools available should it be necessary to expedite the review of a license denial. See Ariz. R. Civ. P. 6(d) ("A judge of the superior court ... may issue an order requiring a party to show cause why the party applying for the order should not have the relief therein requested, and may make the order returnable at such time as the judge designates."); Ariz. R.P. Spec. Act. 4(c) ("[A] special action may be instituted with or *1004 without an application for an order to show cause why the requested relief should not be granted. ... If a show cause procedure is used, the court shall set a speedy return date."); Ariz. R.P. Spec. Act. 4(c) (state bar committee's note) ("Special actions which require urgent disposition may be expedited under the show cause procedure established by the Rule, with complete flexibility in the Court to control timing."); see also Green v. Superior Court, 132 Ariz. 468,470,647 P.2d 166 (1982) ("[B]y virtue of Rule 4(c), "matters... may be determined as expeditiously as is necessary"). The ordinance ensures an applicant maximum judicial flexibility by requiring the county to "consent to expedited hearing and disposition" in state court. Second, there is no reason to doubt—and Dream Palace has not disputed—that Arizona courts will be solicitous of the First Amendment rights of license applicants. Moreover, as the Supreme Court noted, federal remedies under 42 U.S.C. § 1983 are available should county and state procedures fail to suffice. Third, as in City of Littleton, the licensing decision under Ordinance P-10 depends on a set of reasonably objective factors. Section 10(d) provides that the director of the county planning department "shall grant the license" unless any of several conditions is met, and these conditions (for example, that the applicant is not underage and has complied with applicable zoning ordinances) are reasonably objective. State courts should therefore have little difficulty in ensuring that © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 14 county officials do not wrongfully deny license applications that meet the ordinance's requirements. [18] Fourth, Maricopa County has no legal authority to impose deadlines on Arizona state courts. This fact, of course, would not ameliorate an otherwise unconstitutional prior restraint. When the First Amendment requires certain safeguards before a system of prior restraint may be enforced, a local government cannot evade that requirement by pointing to its lack of legal authority to ensure such safeguards exist. Nevertheless, nothing prevents a county from relying on state law procedures to ensure that First Amendment interests are adequately protected. City of Littleton, 124 S.Ct. at 2225; cf. Graff v. City of Chicago, 9 F.3d 1309, 1324 (7th Cir.1993) (en bane) (holding that it was constitutionally sufficient that review of licensing decisions was available by Illinois' common-law writ of certiorari). As long as those state procedures are themselves constitutionally adequate, the county will have satisfied the First Amendment's requirements. In short, the ordinance in this case is similar in every relevant aspect to the ordinance upheld by the Supreme Court in City of Littleton. Moreover, Arizona's rules of procedure "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," City of Littleton, 124 S.Ct. at 2226. Such rules of procedure satisfy the First Amendment. [19] In its supplemental briefing, Dream Palace advances two additional arguments for its claim that the ordinance does not provide constitutionally sufficient judicial review. First, it argues that under the "special action" procedure authorized by the ordinance, any review is purely at the court's discretion and hence not sufficiently guaranteed. Second, it argues that review in an Arizona special action is under an abuse-of-discretion standard, and that only de novo review is constitutionally adequate. *1005 Dream Palace did not raise these arguments before the district court. Ordinarily, we decline to consider arguments raised for the first time on appeal. Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n. 4 (9th Cir.2002); United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978). This rule serves to ensure that legal arguments are considered with the benefit of a fully developed factual record, offers appellate courts the benefit of the district court's prior analysis, and prevents parties from sandbagging their opponents with new arguments on appeal. We have, however, laid out several narrow exceptions to the rule-among them, the case in which "the issue is purely one of law, does not affect or rely upon the factual record developed by the parties, and will not prejudice the party against whom it is raised." Janes, 279 F.3d at 888 n. 4; see also Patrin, 575 F.2d at 712. That exception applies here. Dream Palace's new arguments are based entirely in law and do not rely on the factual record. Maricopa County will not be prejudiced by Dream Palace's failure to advance the arguments below; it has had, and has taken advantage of, a full opportunity to brief its response to the new arguments. Even when a case falls into one of the exceptions to the rule against considering new arguments on appeal, we must still decide whether the particular circumstances of the case overcome our presumption against hearing new arguments. In this case, a decision of this Court bearing directly on the issue of judicial review of adult-business licensing decisions—Baby Tarn I— was displaced by a Supreme Court decision after the proceedings in the district court were complete. Thus, Dream Palace made its decision to rely below on Baby Tarn I within a very different legal landscape from the one that now obtains. For that reason, we exercise our discretion to consider the new arguments advanced by Dream Palace. [20] First, Dream Palace argues that the "special action" review provided for by the ordinance is inadequate because, under Arizona law, the exercise of jurisdiction in a special action is purely at the court's discretion. Thus, it contends, there is no guarantee that a court will hear the merits of a denied license applicant's claim. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 15 The Supreme Court's holding that a "prompt judicial determination must be available," FW/PBS, 493 U.S. at 239, 110 S.Ct. 596, would be drained of its force if it did not mean that a would-be licensee whose application is denied must have access to a court that is required to review the license denial on its merits. We must therefore determine whether Arizona law so provides. Ordinance P-10 provides that a final denial of a license application may be appealed to the Superior Court (the state trial court) "by special action or other available procedure." As the Supreme Court emphasized in City of Littleton, nothing requires a state or local government to write the details of judicial review procedures into the licensing ordinance. See 124 S.Ct. at 2226. Thus, if there is any procedural route by which an applicant may obtain full review on the merits, we must reject Dream Palace's argument. The parties vigorously dispute whether the "special action" proceeding is constitutionally sufficient. The special action is a proceeding under Arizona law, created by rule in 1970, that takes the place of the old common law writs of certiorari, mandamus, and prohibition. A special action may be instituted in Superior Court or in the appellate courts, see Ariz. R.P. Spec. Act. 4(a), but Ordinance P-10 authorizes appeal to the Superior Court and so it is that procedure that concerns us here. When a plaintiff seeks special action review in the Superior Court, "the judge *1006 must first exercise his discretion and decide whether to consider the case on its merits." Bilagody v. Thorneycroft, 125 Ariz. 88,92, 607 P.2d 965, 969 (1979). Were this discretion unbounded, the special action would, of course, provide no guarantee of judicial review on the merits. If, on the other hand, the judge's "discretion" does not include the ability to dismiss a petition where it is the only route by which the petitioner can bring a constitutional challenge, then the mere use of the term "discretion" will not prevent the review from being constitutionally sufficient. Arizona law in this area is not entirely pellucid. The Arizona Supreme Court has noted that "[t]he decision to accept jurisdiction of a special action petition is highly discretionary with the court in which the petition is filed." Gockley v. Ariz. Dept. of Corrections, 151 Ariz. 74, 75, 725 P.2d 1108, 1109 (1986). This statement seems, on its face, to suggest that a court could dismiss a petition for reasons unrelated to the constitutional merits of the claim, leaving a petitioner without remedy. The Court of Appeals' decision in Bilagody, however, suggests that a Superior Court would be abusing its discretion-and hence subject to reversal—if it were the only available venue for, and yet refused to hear, a claim that a license denial violated the First Amendment. In Bilagody, the Arizona Court of Appeals considered a Superior Court judge's decision to decline jurisdiction over a special action in which the plaintiff challenged, on due process grounds, the state's suspension of his driver's license. See 125 Ariz, at 89-92, 607 P.2d at 966-69. The court affirmed the dismissal "on the basis that the appellant had available an adequate remedy by appeal," 125 Ariz. at 92, 607 P.2d at 969, but added: Were we to conclude, however, that the due process issue could not subsequently be raised, it would be necessary to reconsider the scope of the trial court's discretion to refuse to decide the issue in a special action. As Justice Holmes once observed in another context: "(I)t is plain that a State cannot escape its constitutional obligations by the simple device of denying jurisdiction in such cases to Courts otherwise competent." 125 Ariz, at 92 n. 4, 607 P.2d at 969 n. 4 (quoting Kenney v. Supreme Lodge of the World, Order of Moose, 252 U.S. 411,415,40 S.Ct. 371,64 L.Ed. 638 (1920)). The court's language here strongly suggests that it is not within the Superior Court's discretion to refuse to consider the merits of that claim unless some other avenue is open for the petitioner's challenge. [FN9] FN9. If, for example, as we suggest below, an ordinary lawsuit or declaratory action would lie to contest a license denial, then a Superior Court might have discretion to dismiss a special action on that ground-but then (by hypothesis) the plaintiff would have constitutionally adequate judicial review through one of those procedural routes. ) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 16 Arguing otherwise, Dream Palace points us to language in State ex rel. Dean v. City Court of City of Tucson, 123 Ariz. 189, 598 P.2d 1008 (1979), where the Court of Appeals noted that "[t]he denial of special action relief is a discretionary decision which will be upheld for any valid reason disclosed by the record. "123 Ariz. at 192, 598 P.2d at 1011. We have no reason to think, however, that the Arizona courts would find any "reason" to be "valid" that would deny a license applicant the review on the merits that the Constitution requires. Cf. City of Littleton, 124 S.Ct. at 2225 (finding "no reason to doubt" that Colorado state judges would exercise their powers so as to avoid First Amendment harms). Dean itself did not deal with a constitutional claim; it merely upheld a Superior Court's decision not to review the City of Tucson's challenge to a municipal *1007 court's erroneous acquittal of a woman charged with a traffic violation, because double jeopardy principles would bar any further proceedings against her even if the City's claim were successful. At most, then, Dean held that denial of review in a special action proceeding is appropriate where a holding for the plaintiff would have no real effect. Thus, our reading of Arizona law inclines us to the view that the Superior Court does not have the kind of "discretion" over special action review that would render the process constitutionally insufficient. Cf. Graff v. City of Chicago; 9 F.3d 1309, 1324-25 (7th Cir. 1993) (en bane). In any event, we need not delve deeper into the vagaries of Arizona civil procedure law, because the special action is not the only procedure available to contest a license denial. Ordinance P-10 authorizes appeal from a denial not only by special action, but also by any "other available procedure." [FN10] That would include, for example, a regular lawsuit seeking an injunction against the enforcement of the ordinance . after a contested license denial. It would also include a suit under Arizona's declaratory judgment statute, A.R.S. § 12-1831 etseq., which provides that FN10. The fact that a denied applicant can seek review other than through a discretionary writ distinguishes this case from Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville & Davidson County, Tenn., 274 F.3d 377 (6th Cir.2001). In Deja Vu, the Sixth Circuit held that a licensing ordinance that required an applicant to seek judicial review, if at all, via a discretionary writ unconstitutionally failed to guarantee a final judicial adjudication on the merits. Id. at 402-03. [a]ny person ... whose rights, status or other legal relations are affected by a ... municipal ordinance ... may have determined any question of construction or . validity arising under the ... ordinance ... and obtain a declaration of rights, status or other legal relations thereunder. A.R.S. § 12-1832. Dream Palace argues that this language authorizes a declaratory action only to determine the constitutionality or meaning of an ordinance, not to contest the denial of a license application. But the statute permits a plaintiff to "obtain a declaration of rights" under an ordinance, and Ordinance P-10 gives a qualified applicant the right to a license. See Ordinance P-10, § 10(d) ("The Director shall grant the license ... to an applicant who has completed all requirements for application, unless the Director finds any of the following conditions ...." (emphasis added)). We see no reason why a declaratory action would not lie under these circumstances. Because these procedural routes~a suit for an injunction and a declaratory action—are open to an applicant whose license is denied, we need not conclusively resolve the parties' debate over the sufficiency of the special action proceeding. Dream Palace also argues that review in an Arizona special action is inadequate because it is under a deferential abuse-of-discretion standard. We disagree with that characterization of Arizona law. A court in a special action considers not only whether the defendant has abused his discretion, but also "[w]hether the defendant has failed ... to perform a duty required by law as to which he has no discretion." [FNI1] Ariz. Rules of Procedure for Special Actions 3(a). Ordinance P-10 imposes a duty *1008 on the county planning ) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990,04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 17 director to issue a license unless certain disqualifying conditions obtain; it gives the director no discretion to deny a qualified application. A reviewing court will thus have no reason to defer to the director's decision. FN11. Special action review also extends to the questions (1) "[w]hether the defendant has failed to exercise discretion which he has a duty to exercise"; (2) "[w]hether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority"; and (3) "[wjhether a determination was arbitrary and capricious or an abuse of discretion." Ariz. R.P. Spec. Act. 3. Dream Palace, however, argues that a special action court will defer to the county s determination of whether the facts establish a disqualifying condition. Again, we do not think this contention accurately reflects Arizona law. It is true that the Arizona Court of Appeals has held, in a case not involving the First Amendment, that a court hearing a special action challenge to an administrative decision "may not weigh the evidence on which the decision was based." Ariz. Dep't of Public Safety v. Dowd, 117 Ariz. 423,426, 573 P.2d 497, 500 (Ariz.Ct.App. 1977). But the Arizona Supreme Court has held that "appellate courts must engage in independent review of 'constitutional facts' in order to safeguard first amendment protections." Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 482, 724 P.2d 562,568 (1986) (citing Base Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 512, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). We have no reason to think that Arizona courts will not assiduously carry out their duty to ensure that meaningful judicial review is not evaded through biased factfinding. Finally, as discussed above, a special action is not the only judicial procedure available to a denied license applicant, who may also obtain review through a suit for an injunction or declaratory relief. Neither of those procedures calls for any heightened deference on the part of the state court. In light of City of Littleton, and having rejected both of Dream Palace's new arguments for its unconstitutionality, we are satisfied that Ordinance P-10 provides the opportunity for both access to judicial review and a prompt judicial decision, as the First Amendment requires. Of course, if some undiscovered quirk of state procedure were to prevent an applicant from receiving meaningful judicial review, a challenge to the ordinance as applied would lie in federal court. See City of Littleton, 124 S.Ct. at 2225 (citing 42 U.S.C. § 1983); see also id. at 2228 (Souter, J., concurring in part and in the judgment) ("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."). IV Dream Palace also contests the adequacy of the procedural safeguards in the ordinance to sustain the validity of the prior restraints involved in the manager and dancer work permit requirements. Sections 7 and 8 of the ordinance provide that adult-oriented business managers [FN12] and adult service providers [FN13] may *1009 not work in an adult entertainment establishment unless they first secure permits. Ordinance § 7, 8. Application for said permits "shall be made in the same manner as application for an adult business license...." Id. The upshot is that all of the procedural safeguards with respect to the issuance of business licenses—fas requirement of a speedy decision, and the provisions for administrative appeals and judicial review-apply equally to applications for work permits. Permit applicants are provided with an additional safeguard: upon receipt of a properly filed application, the county is required to issue a temporary permit to the applicant, see id. § 10(b), and in the event of an adverse decision on the application, the temporary permit remains in place until the exhaustion of the administrative and judicial review of that decision. See id. §§ 18, 19. FN12. An adult-oriented business manager is "a person on the premises of an adult oriented © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990,04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 18 business who is authorized to exercise overall operational control of the business." See Ordinance P-10 § 2. FN13. An adult service provider is "any person who provides an adult service." Id. An adult service is "dancing, serving food or beverages, modeling, posing, wrestling, singing, reading, talking, listening or other performances or activities conducted for any consideration in an adult oriented business by a person who is nude or seminude during all or part of the time that the person is providing the service." Id. B 1 [21] First, Dream Palace renews its argument that placing the burden of proof on managers and dancers in the administrative proceedings violates their First Amendment rights. For the reasons we previously stated, we reject this argument. See supra section III.C.l. Because the county "does not exercise discretion by passing judgment on the content of any protected speech," FW/PBS. 493 U.S. at 229,110 S.Ct. 596, and because permit applicants have every incentive vigorously to pursue an administrative remedy in the event of an adverse decision on an application, requiring permit applicants to bear the burden of proof is valid under the First Amendment. [22] Second, Dream Palace argues that requiring managers and dancers to exhaust their administrative remedies prior to seeking judicial review constitutes a prior restraint. We reject this argument: we read nothing in the Supreme Court's decision wFW/PBS\!nsA signals disapproval with the common requirement that an applicant exhaust administrative remedies prior to seeking judicial review. We reiterate that the critical issues with respect to the applicant's First Amendment rights are "a specified and reasonable period during which the status quo is maintained," and the "possibility of prompt judicial review." Id. at 228, 110 S.Ct. 596. Requiring administrative exhaustion implicates neither of these two constitutional prerequisites. The ordinance guarantees a "specified and reasonable time" within which an administrative decision must be made, and the applicant, temporary permit in hand, may continue to work pending the outcome of administrative and judicial review. See Ordinance P-10 § 10(b), 18, 19. FW/PBS's requirements are therefore satisfied. In 4805 Convoy, we held that "fojnce administrative remedies have been exhausted, a party whose license has been suspended or revoked may seek judicial review." 183 F.3d at 1114 (emphasis added). We make explicit now what was implicit in our decision in 4805 Convoy: requiring applicants to exhaust administrative remedies prior to seeking judicial review does not violate the First Amendment, so long as an administrative decision is rendered within a specified, reasonable time, "during which time the status quo is maintained." FW/PBS, 493 U.S. at 228, 110 S.Ct. 596. [23] Finally, Dream Palace's argument that placing the burden of seeking judicial review on managers and dancers constitutes a prior restraint is foreclosed by our decision in Baby Tarn III. See infra n. 6. In Baby Tarn III, we held that "placing the burden of instituting proceedings on the state does not apply to licensing *1010 schemes such as the one challenged here." 247 F.3d at 1008. V Dream Palace's next challenge is to the disclosure requirements with respect to manager and employee work permit applications. Section 6 of the ordinance specifies the process applicants must follow in applying for a work permit, pursuant to which permit applicants are required to submit information regarding their full true names, including "aliases or stage names" previously used, as well their current residential address and telephone numbers. Section 9 in turn provides that any information a permit applicant submits to the county "shall be maintained in confidence ... subject only to the public record laws of the State of Arizona." Dream Palace's argument proceeds in two steps: First, it argues that requiring such disclosure by itself is invalid under the First Amendment. Second, and hi the alternative, it asks for injunctive relief against 12005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384F.3d990 384 F.3d 990,04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 19 disclosure of said information to the public. We take each step in turn. [24] Dream Palace's assertion that requiring disclosure of information regarding names, addresses, and telephone numbers to the county violates the First Amendment is essentially foreclosed by our decision in Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir.1986). In Kev, we considered a challenge to a city ordinance requiring nude dancers applying for a work permit to provide to the city their name, phone number, birth date, and aliases, past and present. Id. at 1059. We found that requiring disclosure of such information would not "discourage ... a prospective dancer from performing. None of the information required by the County unreasonably diminishes the inclination to seek a license." Id. Because the required disclosure did not "inhibit[ ] the ability or the inclination to engage in the protected expression," it was a valid licensing requirement. Id. at 1060. The required disclosures under the ordinance at issue in this case, and the city ordinance at issue in Kev, are indistinguishable, and Kev therefore controls. [FN14] FN14. We note that several other courts have struck down remarkably similar provisions to the one at issue in Kev and at issue in this case. See, e.g., LLEH, Inc. v. Wichita County, 289 F.3d 358, 370 (5th Cir.2002) (disclosure of "current residential address and telephone number" was not narrowly tailored); Schultz v. City of Cumberland, 228 F.3d 831,852 (7th Cir.2000) (invalidating provision requiring disclosure of residential address and other information). B [25][26] Dream Palace urges in the alternative that, even if we find the required disclosures to the County valid, we should grant injunctive relief to prevent the county from disclosing that information to the public. The requirements for the issuance of a permanent injunction are (1) the likelihood of substantial and immediate irreparable injury; and (2) the inadequacy of remedies at law. G.C. & K.B. Investments, Inc. v. Wilson, 326 F.3d 1096, 1107 (9th Cir.2003). The district court's refusal to grant a permanent injunction is reviewed for an abuse of discretion. Id. [27] The potential First Amendment problem here arises from the interplay between county and state law. While Section 9 of the ordinance provides that "information provided by an applicant in connection with the applicant for a license or permit under this ordinance shall be maintained in confidence by the Director," that confidentiality protection is "subject... to the public record laws of the State of Arizona." Arizona law in turn provides that "[pjublic records and other matters in *1011 the custody of any officer shall be open to inspection by any person at all times during office hours." Az.Rev.Stat. § 39-121 (emphasis added). The county does not dispute that applicant information provided to the county is a "public record" within the meaning of this provision, and that those records are "presumed open to the public for inspection as public records." Carlson v. Pima County, 141 Ariz. 487,490, 687 P.2d 1242 (1984). The public right of inspection may be overcome in the interest of "confidentiality, privacy, or the best interests of the state." Id. The State, however, "has the burden of overcoming the legal presumption favoring disclosure." Scottsdale Unified School District No. 48 ofMaricopa County v. KPNX Broadcasting Co., 191 Ariz. 297, 300, 955 P.2d 534 (1998) (quoting Cox Az. Pubs., Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194 (1993)). The potentially dangerous consequences that the interplay of these rules poses to permit applicants is obvious. Should an erotic dancer, say, wish to apply for a work permit, as required by the ordinance, he or she must provide information regarding true name, including aliases or odier names used in the past five years, as well as current home address and telephone number. Under Arizona law, that information is presumptively available to anybody who pleases to ask for it, and the county, though it may refuse to provide such information to the public, has the burden in subsequent proceedings of overcoming the statutory presumption in favor of disclosure. The "confidentiality" provision included in the ordinance is essentially a nullity, because that provision is made ) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 20 "subject ... to the public record laws of the State of Arizona." Ordinance P-10 § 6. The exception therefore swallows the rule. The Sixth Circuit confronted a similar problem in Deja Vu of Nashville, Inc. v. The Metropolitan Gov. of Nashville & Davidson County, TN., 274 F.3d 377 (6th Cir.2001). The Nashville ordinance at issue in that case required permit applicants to divulge certain personal information about themselves, including their current and former residential addresses. Id. at 393. That information was presumptively available to the public pursuant to the Tennessee Open Records Act. See id. at 394. The court found there was "significant evidence that the requirement that applicants submit their names and past and current addresses to a public forum poses serious risks to their personal security." Id. at 394. The court concluded that "permit applicants' names and current and past residential addresses constitutefs] protected private information" and therefore it was "exempted from Tennessee's Open Records Act." Id. at 395. In TV. W. Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th Cir.2003), the Fifth Circuit reasoned similarly in reversing a Texas district court's injunction against a Houston ordinance that required employees and managers of adult entertainment businesses to divulge information regarding phone numbers and addresses to the city when applying for a permit. Id. at 195. The court held that state law already rendered the information confidential and unavailable to the public; thus, it reasoned, requiring applicants to supply the information did not infringe their First Amendment rights. Id. The Fifth Circuit panel therefore reversed the Texas district court's injunction. It did not disagree that where there is no guarantee of confidentiality, "concerns about public disclosure ... are not inconsequential." N. W. Enters, v. City of Houston, 27 F.Supp.2d 754,842 (S.D.Tex. 1998), rev'd in part, 352 F.3d at 198. As the district court in N. W. Enterprises reasoned: Adult entertainers may anonymously (or through stage names) put their bodies *1012 on display in front of strangers, but these actions do not imply a willingness to publicize the entertainers' personal information through which customers or other private persons may trace the entertainers to their homes or otherwise invade their privacy without permission. The fact that an entertainer is willing to dance publicly or a manager is willing to be employed in a sexually oriented business that deals with the public, or the fact that a determined harasser or stalker might conceivably follow an entertainer home after she leaves work, does not mean that adult entertainers and managers have voluntarily sacrificed all privacy rights and need for safety protections. Id. at 842-43. In Clark, we ourselves recognized the potential danger from public disclosure of information provided to the government in the course of applying for a work permit posed for nude dancers, albeit in the course of deciding whether or not an owner-operator of a nude dancing club had overbreadth standing to raise the rights of his managers and employees. See Clark, 259 F.3d at 1010. We recognized in that case the possibility "that cabaret patrons could obtain such personal information and harass the entertainers at their homes, or worse." Id. at 1010. Because of the potential danger, we concluded that "there is a risk cabaret employees will engage in self-censorship and avoid participating in protected activity ...."Id. [28] We agree with this analysis. The First Amendment does not permit the county to put employees of adult entertainment establishments to the choice of either applying for a permit to engage in protected expression in circumstances where they expose themselves to "unwelcome harassment from aggressive suitors and overzealous opponents" of such activity, N.W. Enters., 27 F.Supp.2d at 842, or of choosing not to engage in such activity out of concern for their personal safety. The chilling effect on those wishing to engage in First Amendment activity is obvious. Given the choice with which they are faced, we think it likely that those willing to engage in such activity will decline to do so, and Dream Palace has introduced affidavit testimony to that effect. Because the interplay of county and state law on this point "inhibits the ability or the inclination to engage in © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 21 ... protected expression," Kev, 793 F.2d at 1060 (citing Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945)), we must conclude that the district court abused its discretion in refusing to enjoin the county from disclosing to members of the public information provided to it from permit applicants. Upon remand, the district court shall grant an appropriate injunction in accordance with this opinion. VI A We turn now to Dream Palace's challenges to certain operating restrictions contained in the ordinance, the first of which is to the prohibition on the provision of adult services between the hours of 1:00 a.m. and 8:00 a.m. on Monday through Saturday or between the hours of 1:00 a.m. and 12:00 noon on Sunday. See Ordinance P-10 § 13(f). Our consideration of Dream Palace's challenge is largely controlled by our recent decision in Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir.2003). In that case, we joined six other circuits [FN15] in holding that *1013 hours of operation restrictions on adult entertainment businesses were constitutional under the secondary effects test so long as the "predominate concerns" motivating the ordinance were "the secondary effects" of adult speech. See id. at 1160. Of course, that we have established the general proposition that hours of operation restrictions may pass muster under the First Amendment does not relieve us of our duty to put the county to its proof in this case. Compare DiMa Corp., 185 F.3d at 826 (Seventh Circuit holds town ordinance regulating hours of operation valid under Renton ), with Schultz, 228 F.3d at 846 (Seventh Circuit evaluates anew whether city has met its evidentiary burden under Renton ). FN15. See DiMa Corp. v. TownofHallie, 185 F.3d 823 (7th Cir.1999); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1998); Richland Bookman, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d731 (1st Cir. 1995); Mitchell v. Comm'n on Adult Enter. Est. of the State of Delaware, 10F.3d 123 (3dCir.l993); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986). The familiar three-part analytical framework established in Renton applies. [FN16] First, we must determine whether the regulation is a complete ban on protected expression. Renton, 475 U.S. at 46,106 S.Ct. 925. Second, we must determine whether the county's purpose in enacting the provision is the amelioration of secondary effects. Id. at 47. If so, it is subject to intermediate scrutiny, and we must ask whether the provision is designed to serve a substantial government interest, and whether reasonable alternative avenues of communication remain available. Id. FN16. In Fair Public Policy, we rejected the contention that Justice Kennedy's separate concurrence in Alameda Books signaled a departure from the traditional Renton analysis. Id. at 1162-63. As we explained, the argument that Justice Kennedy meant to require heightened scrutiny of restrictions of the type at issue here "cannot be squared with his insistence that 'the central holding of Renton remains sound.'" Id. at 1162 (quoting Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728 (Kennedy, J., concurring)). Nor is the proposition that a new and different approach is required in the wake of his concurrence consistent with the weight of authority in the wake of that decision. See id. at 1163. (citing Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 721 (7th Cir.2003), Z.J. Gifts D-4, LLCv. City of Littleton, 311 F.3d 1220, 1239 n. 15 (10th Cir.2002), and World Wide Video of Wash., Inc. v. City of Spokane, 227 F.Supp.2d 1143, 1149(E.D.Wash.2002)). B 1 Our first task is to determine whether § 13(f) 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 S.Ct. 1728 (plurality opinion); Fair Public Policy, 336 F.3d at 1164. Section 13(f) is obviously not a complete ban, prohibiting as it does the provision of adult services during certain nighttime > 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 22 hours and until noon on Sundays. "The ordinance is therefore properly analyzed as a time, place, and manner regulation." Renlon, 475 U.S. at 46, 106 S.Ct. 925. [29] Second, we must determine whether section 13(f) is designed to combat the secondary effects of adult entertainment establishments on the surrounding community, "namely at crime rates, property values, and the quality of the city's neighborhoods." Alameda Books, 535 U.S. at 434, 122 S.Ct. 1728 (plurality opinion). We look to the full record to determine whether the purpose of the statute is to curb secondary effects. Fair Public Policy, 336 F.3d at 1165 (quoting Colacurcio v. City of Kent, 163 F.3d 545, 552 (9th Cir. 1998)). In doing so, we will "rely on all objective indicators of intent, including the face of the statute, the effect *1014 of the statute, comparison to prior law, facts surrounding enactment, the stated purpose, and the record of proceedings." Colacurcio, 163 F.3d at 551 (internal quotation omitted). All objective indicators are that, in prohibiting the provision of adult service during nighttime hours, the county's predominant concern was with the amelioration of secondary effects. As with the statute at issue in Fair Public Policy, section 13(f) here applies to establishments protected by the First Amendment—adult movie theaters, book stores and video stores—and establishments that enjoy no such protection: massage parlors. See Ordinance P-10 § 2. Fair Public Policy, 336 F.3d at 1165. Justice Kennedy in Alameda Books found it significant that the ordinance at issue in that case 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). Section 1 of the ordinance, moreover, amounts to a declaration of purpose, wherein the county board acknowledges that "adult oriented businesses may and do generate secondary effects that are detrimental to the public health, safety and welfare." Specifically, those secondary effects include prostitution, drug abuse, health risks associated with HIV/AIDS, and infiltration and proliferation of organized crime for the purpose of drug and sex related business activities. Id. Specifically, for our purposes, section 1 states that the "Board of Supervisors finds that the harmful secondary effects of adult oriented businesses are more pronounced when conducted continuously or during late night hours." The "stated purpose" is yet another objective indicator of the board's intent. See Colacurcio, 163 F.3d at 552. Finally, all of the pre-enactment evidence before the board deals with the secondary effects associated with adult entertainment establishments. Board members were presented with a memo summarizing some seventeen secondary effects studies, and were provided with copies of secondary effects studies from Phoenix and Los Angeles. The board also held public hearings at which they heard testimony with respect to the need for reasonable regulation of adult-oriented establishments so as to curb the secondary effects associated with said establishments. See Fair Public Policy, 336 F.3d at 1167 (noting all documentary and testimonial evidence presented to Arizona legislature dealt with secondary effects). In short, an examination of the record in this case leads ineluctably to the conclusion that, in seeking to regulate the hours of operation of adult-oriented establishments, the county's predominant purpose was the amelioration of secondary effects. Colacurcio, 163 F.3d at 552; Fair Public Policy, 336 F.3d at 1165-66. Since the county's purpose was to target secondary effects, the hours of operation restriction 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; Fair Public Policy, 336 F.3d at 1166. [30] [31] The county has a substantial interest in curbing the secondary effects associated with adult entertainment establishments. See Young, 427 U.S. at 71, 96 S.Ct. 2440 (finding city's "interest in attempting to preserve the quality of urban life is one that must be © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990,04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 23 accorded high *1015 respect."). We recognized inFair Public Policy that the specific interest in reducing secondary effects associated with late night operations is a substantial one. 336 F.3d at 1166; see also National Amusements, 43 F.3d at 741 (city has a substantial interest in preserving peace and tranquility for citizens during late evening hours); Richland Bookmart, 137 F.3d at 440-41 (deterring "prostitution in the neighborhood at night or the creation of 'drug comers' on the surrounding streets" is a substantial interest). Under Renton, of course, the critical issue is whether or not the state has come forward with evidence demonstrating 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) (discussing Renton test). The evidentiary burden is not high: the county will prevail as long as it can demonstrate that it relied on evidence that is "reasonably believed to be relevant for demonstrating a connection between speech and a substantial independent government interest." Id. The pre-enactment evidence before the Maricopa County Board consists of certain documentary evidence. Board members were provided with four-page and fourteen-page reports summarizing the findings of secondary effects studies conducted in various other cities and counties. Board members were also provided with copies of secondary effects studies conducted in Phoenix, Arizona, and Los Angeles, California. The board also heard limited testimonial evidence concerning the need for regulation to curb secondary effects on surrounding neighborhoods. All of this evidence fairly supports the rationale behind § 13(f): namely, prohibiting adult entertainment establishments from operating during late night hours will lead to a reduction in secondary effects. The record in this case compares favorably to the record found to pass muster in Fair Public Policy, 336 F.3d at 1168. In that case, we characterized the pre-enactment record as "a slim one." Id. at 1167. It consisted of letters on the record documenting the problems associated with adult entertainment businesses, as well as testimonial evidence regarding the late night effects of such establishments. Id. The evidence before the Maricopa County Board also compares favorably to the record hi Mitchell, where lawmakers "received no documents or any sworn testimony in support of the bill." 10 F.3d at 133. Yet the Third Circuit in Mitchell held that the state had met its evidentiary burden under Renton. In Ben Rich Trading, all that the city relied on was evidence presented to the state legislature two-years previously. 126 F.3d at 161. In that case, too, the city had met its burden under Renton. See id. The question is whether the county board relied on evidence "reasonably believed to be relevant" in demonstrating a connection between its rationale and the protected speech, and it has done that here. The answer is that the county board considered comprehensive summaries detailing findings from other jurisdictions, examined two full studies from Los Angeles and Phoenix, and heard limited testimonial evidence concerning the need for reasonable regulation. All of the evidence it considered is both "reasonable and relevant, and compares favorably with the evidence presented in other cases." Fair Public Policy, 336 F.3d at 1168. Since Dream Palace has failed to cast doubt on the state's theory, or on the evidence the state relied on in support of that theory, our precedent "commands that [we] should not stray from a deferential standard in these contexts, even when First Amendment rights are implicated through secondary effects." *W16Charter Comm's, Inc. v. County of Santa Cruz, 304 F.3d 927, 932 (9th Cir.2002). We are satisfied that the County has met its burden under Renton. 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.3dat553 (quoting Wardv. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). Plainly, the government's interest in curbing the secondary effects associated with late night operation of adult entertainment businesses would be achieved less effectively in the absence of § 13(f). [FN17] We conclude that the ordinance's hours of operation provision satisfies the narrow tailoring > 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 24 requirement. FN17. Dream Palace argues that section 13(f) is overly-broad because it prohibits the provision of "sexually related activities" prior to noon on Sundays, but we rejected this argument in Fair Public Policy. This argument "confuses the requirement that a regulation serve a substantial government interest with the requirement that it be narrowly tailored to that end." Id. at 1169 (quoting Lady J. Lingerie, 176 F.3d at 1365). The sort of line-drawing Dream Palace urges us to engage in "is inconsistent with a narrow tailoring requirement that only prohibits regulations that are substantially broader than necessary." Id. (internal quotation marks omitted). [32] Finally, the ordinance must "leave open ample alternative channels for communication." Ward, 491 U.S. at 791,109 S.Ct. 2746. As with the statute at issue in Fair Public Policy, 336 F.3d at 1170, section 13(f) permits the businesses that come within its purview to operate seventeen hours per day Monday through Saturday, and thirteen hours on Sunday, or approximately 5,980 hour per year. It therefore leaves open ample alternative channels for communication. The hours of operation restriction is therefore valid under the First Amendment. [FN18] FN18. We note also that there is no merit to Dream Palace's contention that the hours of operation restriction is unconstitutionally "underinclusive" because it singles out adult entertainment establishments for "special treatment." Dream Palace repeats this "underinclusiveness" argument with respect to several other provisions in the ordinance. We rejected precisely the same argument in Fair Public Policy, and we do so again. Simply put, the Renton framework is all about singling out adult and erotic entertainment, so long as the government does so for the right reasons. "[T]he State may legitimately use the content of these materials as the basis for placing them in a different classification...." Young, 427 U.S. at 70-71,96 S.Ct. 2440. See also Isbell v. City of San Diego, 258 F.3d 1108, 1116 (9th Cir.2001) (the state "may choose to treat adult businesses differently from other businesses"). VII [33 ] Dream Palace next challenges the requirement that managers must wear an identification card during work hours. Pursuant to section 12 of the ordinance, managers are provided with a "work identification card," which contains a photograph, a permit number, and the date of expiration of the permit. Section 13(i) in turn provides that a manager "shall wear his or her identification" at all times during work hours. The card must be affixed to the front of the manager's clothing, so that the picture and permit numbers are clearly visible. Ordinance P-10 § 13(h). At oral argument, Dream Palace conceded that its primary concern with respect to this requirement was the possibility that an unsatisfied customer, armed with a manager's permit number from the manager's identification card, may proceed to the county offices and make a request pursuant to Arizona's Public Records Act for the manager's home address and telephone number. It further conceded that *1017 should we grant relief with respect to the disclosure requirements, it no longer objects to section 13(i)'s identification requirement. Since we are instructing the district court to enter an injunction prohibiting public disclosure of that information pursuant to such a request, see supra section V.B, the basis for Dream Palace's challenge vanishes. Hence, we conclude that this portion of Dream Palace's challenge is moot. VIII [34] Dream Palace also challenges the requirement that managers obtain work permits in the first place, claiming there is no evidence in the legislative record to support the county's position that licensing managers aids in its efforts to combat secondary effects, and that therefore the requirement is invalid under Renton. Like any other restraint upon nude dancing, the manager ) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 25 permit requirement can be imposed only if it is a reasonable time, place, and manner restriction. See Clark, 259F.3dat 1005; United States v. Baugh, 187 F.3d 1037, 1042 (9th Cir.1999). The legislative record in this case indicates that adult businesses are associated with a variety of secondary effects, such as the presence of organized crime and money laundering, which directly involve employees in management positions. It is reasonable for the county to suppose that it can combat these negative secondary effects by the permit process, which screens out potential managers with a criminal history. The other secondary effects associated with adult clubs—sex and drug offenses, health risks, and the like-can all be controlled to some extent by management-level employees. The record therefore contains ample evidence to support the requirement that a manager first obtain a license. The county has met its burden of demonstrating a connection between the burden it imposes on speech and a substantial government interest. Alameda Books, 535 U.S. at441-42, 122 S.Ct. 1728 (plurality opinion). IX Dream Palace's challenge to the ban on "specific sexual activity" presents a much more difficult question. The prohibition has to be understood in the context of several other provisions in the ordinance, starting with the proposition that the ordinance regulates "adult oriented businesses." Those businesses are "adult arcades, adult bookstores or adult video stores, cabarets, adult live entertainment establishments, adult motion picture theaters, adult theaters, [and] massage establishments that offer adult service or nude model studies." Ordinance P-10 § 2. Each of these terms is in turn defined under the ordinance. An "adult live entertainment establishment," of which Dream Palace is one, is an establishment that features "persons who appear in a state of nudity" or "live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities." Id. Each of the business definitions incorporates the term "specific sexual activity." "Specific sexual activity," in turn, means any of the following: (1) "human genitals in a state of sexual stimulation or arousal"; (2) "sex acts, normal or perverted, actual or simulated, including acts of human masturbation, sexual intercourse, oral copulation or sodomy"; (3) "fondling or other erotic touching of the human genitals, pubic region, buttocks, anus or female breast"; and (4) "excretory functions as part of or in connection with any of the activities" listed above. Id. Section 13(e), the challenged provision, provides that an "adult service provider, in the course of providing an adult service, may not perform a specific sexual activity." An adult service is, among other things, *1018 "dancing, ... modeling, posing, ... singing, reading, talking, listening or other performances or activities ... by a person who is nude or seminude." Id. § 2. Nude, nudity or a "state of nudity" means "[t]he appearance of a human anus, or female breast below a point immediately above the top of the areola" or "[a] state of undress which fails to opaquely cover a human anus, genitals or female breast below a point immediately above the top of the areola." Id. Seminude means "a state of dress hi which clothing covers no more than the genitals, pubic region and female breast below a point immediately above the top of the areola, as well as portions of the body that are covered by supporting straps or devices." Section 13(e) proscribes activity that comes within the First Amendment's protections. In prohibiting dancers from engaging in "simulated sex acts," whatever they may be, the county appears to have proscribed the particular movements and gestures that a dancer may make during the course of a performance. One is left to speculate as to what movements, precisely, a dancer may incorporate in a performance without running afoul of section 13(e), and yet still effectively convey an essentially adult, erotic, message to the audience. The prohibition applies even if the dancer is at least partially clothed. If Elvis' gyrating hips can fairly be understood to constitute a "simulated sex act," one can fully appreciate the potential scope of the restrictions placed on erotic dancers in Maricopa County. The problem lies in the circularity of the ordinance's > 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 26 logic: Section 13(e) forbids certain expressive activity—simulated sex acts-only within adult-oriented businesses but not elsewhere. But the ordinance defines adult-oriented businesses as those that feature performances "characterized by the exposure of specific anatomical areas or specified sexual activities." The ordinance defines adult entertainment businesses by reference to the presentation of adult live entertainment, then forbids that presentation. To wit, Dream Palace is an adult entertainment business because it features nude and semi-nude dancers engaging in "specific sexual activity," and as a result, it is prohibited from featuring nude or semi-nude "specific sexual activity." Dream Palace therefore finds itself in a catch-22: there is no way for it to comply with the ordinance, unless it simply ceases to engage in protected expression entirely, and hence falls outside of the scope of the ordinance altogether. B [35] This is a total ban on nude and semi-nude dancing in everything but name, and indeed the county concedes as much, arguing that it is empowered to effect such a ban on the specific movements a dancer may, or more precisely may not, make, pursuant to its general police power. It relies on California v. LaRne, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996), for this proposition. In LaRue, the Supreme Court upheld a facial challenge to California regulations enacted in response to live sex shows and sexual contact between nude performers and patrons in establishments licensed to sell liquor. 409 U.S. at 111, 93 S.Ct. 390. The record in that case was "a sordid one," and consisted of testimony regarding customers engaging in oral copulation with dancers, public masturbation, and numerous other contacts between male customers and female performers. Id. The Court concluded that the regulation was permissible because of the "critical fact... that California has not forbidden these performances across the board. It has merely*1019 proscribed such performances in establishments it licenses to sell liquor by the drink." Id at 118, 93 S.Ct. 390 (emphasis added). The Court stated that the Twenty-First Amendment required an "added presumption in favor of the validity of state regulation in this area." Id. The Court later disowned its reliance on the Twenty-first Amendment in 44 Liquormart, 517 U.S. at 514-16,116 S.Ct. 1495, stating that "the States' inherent police powers provide ample authority to restrict the kind of'bacchanalian revelries' described in the LaRue opinion regardless of whether alcoholic beverages are involved .... see, e.g., Young [and] Barnes ...." Id. at 515, 116 S.Ct. 1495. LaRue and 44 Liquormart do not support the county's proposition. LaRue rested squarely on the "critical fact" that California had not enacted an "across the board" ban, but rather prohibited such performances in establishments it licenses to sell alcohol. That is not the case here; the Maricopa County ban on "specified sexual activities" is sweeping in its scope, and is not limited to establishments holding a liquor license. More important, the record before the legislature in LaRue spoke more to a "gross sexuality than of communication," 409 U.S. at 118, 93 S.Ct. 390, and contained a litany of recorded incidents of open copulation between the dancers and patrons, as well as public masturbation, prostitution, and the like. The ordinance, however, strictly prohibits any contact between patrons and performers. See Ordinance P-10 § 130). Further, the stage on which performances take place must be elevated, patrons must stay at least three feet away from performers, and are separated from them by a barrier or a railing, over which neither a patron nor a performer may extend "any part of his or her body." Id. § 13(d). All performances must take place within a manager's sight line, id. § 13(g), and patrons are prohibited from tipping performers while the performer is "nude or seminude." Id. § 13(/). The county has taken reasonable steps to guard against the kind of "gross sexual conduct" or "bacchanalian revelries" that were the target of the regulation in LaRue. After the ordinance takes those steps, however, it goes further, and restricts the particular movements and gestures a dancer may or may not make during the course of a performance. 44 Liquormart did not suggest, as the county contends, that the government © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 27 may, pursuant to its "general police power," restrict constitutionally protected expression. The Court's citations to Young and Barnes immediately after the passage on which the county relies, both cases that apply First Amendment scrutiny to ordinances regulating adult entertainment businesses, make this amply clear. Whatever the scope of the county's asserted police power, it "must be exercised within constitutional limits." Moore v. East Cleveland, 431 U.S. 494, 514, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (Stevens, J., concurring). [36] The countys fallback argument is that section 13(e) is valid under Renton. While the county is on firmer ground here, we remain unconvinced of the soundness of its position. Renton and its progeny do not give carte blanche to the government to proscribe absolutely certain types of adult entertainment. Rather, Renton effects a common-sense balance between the government's undoubted interest in curbing the effects such businesses have on surrounding communities on the one hand, and the enjoyment of, and practice in, protected expression on the other. Its rationale is that content-discriminatory time, place, and manner regulations receive intermediate scrutiny only when the *1020 government avoids a total ban on protected expression, and when its predominant interest, supported by an evidentiary record, is in the amelioration of secondary effects. 475 U.S. at 54, 106 S.Ct. 925. The county's bid for intermediate scrutiny fails to clear the first hurdle, because section 13 (e) effects a total ban on a particular kind of erotic expression at all times and in every part of the county. The argument that section 13(e) is really just a plain old time, place and manner restriction because it prohibits only certain expressive activity in certain types of establishments but not elsewhere does not work because, for reasons explained earlier, the only way an establishment fits within the ordinance in the first place is if it engages in that which the ordinance prohibits. The prohibition Maricopa County has put in place is quite different from any of the regulations the Supreme Court has considered in the Renton line. The Renton ordinance itself was a classic content-discriminatory time, place, and manner regulation. While it targeted adult entertainment on the basis of its content, the ordinance did "not ban adult theaters altogether." 475 U.S. at 46, 106 S.Ct. 925. Instead, it imposed restrictions on where such establishments could operate in order to protect residential neighborhoods. Id. Consequently, it was subject to intermediate instead of strict scrutiny. Id. The same is true of the Young ordinance, which imposed geographic zoning restrictions on adult entertainment. 427 U.S. at 62, 96 S.Ct. 2440. So long as an establishment complied with the regulation, it was free to provide adult entertainment "essentially unrestrained." Id. The Court specifically noted in that case that "[t]he situation would be quite different if the ordinance had the effect of suppressing, orgreatlyrestrictingaccessto,lawfulspeech." Id. at71 n. 35, 96 S.Ct. 2440; see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 71, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) ("The Court [in Young ] 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."). Other cases in the Renton line have drawn intermediate scrutiny because, even though they incidentally burdened expression, they were facially content-neutral laws of general applicability. In Barnes, the Court dealt with a state statute prohibiting nudity in public places "across the board" hi a facially content-neutral manner. 501 U.S. at 566,111 S.Ct. 2456. The statute on its face was "not at all inherently related to expression," id at 585, 111 S.Ct. 2456 (Souter, J., concurring), and was therefore subject to intermediate scrutiny. The city ordinance in Erie was also a content-neutral proscription of public nudity. In upholding the ordinance, the Court explained that "[bjeing 'in a state of nudity' is not an inherently expressive condition.... 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 is accompanied by expressive activity." 529 U.S. at 289-90,120 S.Ct. 1382 (emphasis added). The prohibition at issue in this case is of a different order. It is not a content-discriminatory time, place and ) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 28 manner regulation, so it is not like the ordinances at issue in Renton and Young. Nor is it a facially-neutral law of general applicability, so it is not like the ordinances in Barnes and Erie. Section 13(e) "does not ... simply ban or restrict certain conduct, irrespective of any message that the conduct may be intended to convey; instead, by its own terms the Ordinance is directed to activity that conveys eroticism or sexuality." Brownell, 190 F.Supp.2d at 489. *1021 The Seventh Circuit considered the same prohibition on "specific sexual activity" in Schultz, 228 F.3d at 846-48, and struck it down as an unconstitutional infringement on protected expression. By restricting the particular movements and gestures of the erotic dancer ... the Ordinance unconstitutionally burdens the protected expression. The dominant theme of nude dance is an emotional one; it is one of eroticism and sensuality. [The Ordinance] deprives the performer of a repertoire of expressive elements with which to craft an erotic, sensual performance and thereby interferes substantially with the dancer's ability to communicate her erotic message. It interdicts the two key tools of expression in this context that imbue erotic dance with its sexual and erotic character-sexually explicit dance movements and nudity.... Id. at 847 (internal citations and quotation marks omitted). The Seventh Circuit further explained that the government could not hide behind Renton because "a secondary-effects rationale by itself does not bestow upon the government free license to suppress specific content of a specific message...." Id. at 845. "[Sjuch a regime would permit the government to single out a message expressly, formulate a regulation that prohibits it, then draw content-neutral treatment nonetheless simply by producing a secondary effects rationale as pretextual justification." Mat 844; see also Brownell, 190 F.Supp.2d at 484-93 (following Schultz and striking prohibition on "specified sexual activities"). We are inclined to agree with the Seventh Circuit. Maricopa County cannot avoid the constitutional prohibition on proscribing non-obscene speech "by regulating nude dancing with such stringent restrictions that the dance no longer conveys eroticism nor resembles adult entertainment." Schultz, 228 F.3d at 844. Section 13(e), in preventing erotic dancers from practicing a protected form of expression, does precisely that. We therefore apply strict scrutiny to section 13(e). To survive strict scrutiny, the provision must be tailored to "serve a compelling state interest and is narrowly drawn to achieve that end." Simon & Schuster, Inc. v. New York Crime Victims Bd., 502 U.S. 105, 118, 112S.Ct. 501, 116 L.Ed.2d 476 (1991). Section 13(e) is not necessary to serve Maricopa County's unquestioned significant interest in ameliorating secondary effects. The county can, and does, utilize a variety of less restrictive and more direct means to fight those effects. Nor has the county explained how the restriction will in fact further its interest in curbing secondary effects. Therefore, we must conclude that section 13(e) is an unconstitutional burden on the enjoyment of protected expression. Our decision today does not necessarily imply that none of the activities listed in section 13(e) may be proscribed, consistent with the Constitution, through a well-crafted ordinance. Cf. Brownell, 190F.Supp.2dat 492. Section 13(e) is far too broad, however, and restricts in sweeping terms the ability of erotic dancers to convey their intended erotic message. In defining establishments by reference to that which it prohibits, it amounts to an absolute ban on such activity in Maricopa County. For these reasons, section 13(e) is unconstitutional. X [37] In addition to the various First Amendment challenges to Ordinance P-10, Dream Palace sought invalidation of certain of its provisions on state law grounds. Specifically, Dream Palace sought summary judgment with respect to certain operating restrictions on the basis *1022 that state law has preempted county law; it also sought invalidation of certain penalty provisions as ultra vires. The district court declined to reach these issues, and dismissed the claims, explaining that "the remaining state-law claims raise delicate issues © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 29 involving the interpretation and application of Arizona law and the balance of powers within Arizona between state and local government." We review that decision for an abuse of discretion. See Bryant v. Advent is t Health Sys./West, 289 F.3d 1162,1165 (9th Cir.2002). 28 U.S.C. § 1367 affords district courts the discretion to decline to exercise jurisdiction over supplemental state law claims if, among other reasons, "the claim raises a novel or complex issue of State law," or "the district court has dismissed all claims over which it had original jurisdiction." Such is the case here: the district court had decided each and every claim over which it had original jurisdiction, and the remaining state law claims, concerning as they do issues of the balance of power between state and local authorities in Arizona, involved delicate issues of state law. While the district court had the discretion to reach and to decide these state law issues, we cannot say that its refusal to do so constituted an abuse of discretion. See 28 U.S.C. § 1367. XI [3 8] [3 9] Finally, because we have declared Ordinance P-10 constitutionally invalid for some purposes but not for others, we must determine whether the valid portions can be severed from the invalid ones. "An entire statute need not be declared unconstitutional if constitutional portions can be severed." Republic Inv. Fund I v. Town of Surprise, 166 Ariz. 143, 151, 800 P.2d 1251 (1990). Under Arizona law, the test for severability requires ascertaining legislative intent. Id. "[T]he most reliable evidence of that intent is the language of the statute." State v. Prentiss, 163 Ariz. 81, 86,786 P.2d 932 (1989). The Arizona Supreme Court has held that where "the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional," a court should not disturb the valid part "if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act." Selective Life Ins. Co. v. Equitable Life Assurance Soty, 101 Ariz. 594, 599, 422 P.2d 710 (1967). [40] Ordinance P-10 contains a robust severability clause: "Each section and each provision or requirement of any section of this ordinance shall be deemed severable and the invalidity of any portion of this ordinance shall not affect the validity or enforceability of any other portion." Ordinance § 25. Given that the county board has clearly expressed its intent with respect to severability, we think the invalid portions of the ordinance are easily severable. We hold unconstitutional the prohibition on specified sexual activity, and have instructed the district court to enjoin the disclosure to the public of information provided by permit applicants. The vast majority of the provisions in the ordinance, including the licensing scheme, and multiple operating restrictions, withstand scrutiny. The invalid portions are, therefore, severable from the remainder, and the remaining valid portions may remain in force. AFFIRMED in part, REVERSED in part, and REMANDED with instructions. Each party shall bear its own costs. CANBY, Circuit Judge, concurring: I concur in Judge O'Scannlain's well-written opinion. Were I writing on a blank slate, however, I would dissent from Section VI, which upholds the prohibition *1023 against operation of adult-oriented businesses between the hours of 1:00 a.m. and 8:00 a.m. on Monday through Saturday, and 1:00 a.m. and 12:00 noon on Sunday. As Judge O'Scannlain's opinion recognizes, the result reached in Section VI is largely controlled by Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir.2003). I dissented in that case because I was convinced, as I still am, that the hours restriction violated the holding of a majority of the Supreme Court (per Justice Kennedy) in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728,152 L.Ed.2d 670 (2002). The record in the present case is not sufficiently different from that in Fair Public Policy to lead me to a different conclusion. I recognize, however, that my view did not prevail in Fair Public Policy, and I am bound by that decision. I therefore concur fully in Judge O'Scannlain's opinion today. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990,04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 30 APPENDIX ORDINANCE NO. P-10 ADOPTED April 23,1997 AMENDED July 23,1997 AMENDED July 17,1998 ADOPTED as AMENDED September 2,1998 MARICOPA COUNTY ORDINANCE NO. 10 ADULT ORIENTED BUSINESSES AND ADULT SERVICE PROVIDERS SECTION!. FINDINGS Based on public testimony and other evidence before it, including information, studies and court decisions from other jurisdictions, and in accordance with A.R.S. 11-821, the Maricopa County Board of Supervisors makes the following legislative findings and statement of purpose: The Board of Supervisors recognizes that some activities which occur in connection with adult oriented businesses are protected as expression under the First Amendment to the United States Constitution. The Board of Supervisors further recognizes that First Amendment rights are among our most precious and highly protected rights, and wishes to act consistently with full protection of those rights. The Board is aware, however, that adult oriented businesses may and do generate secondary effects which are detrimental to the public health, safety and welfare. Among those secondary effects are (a) prostitution and other sex related offenses (b) drug use and dealing (c) health risks through the spread of AIDS and other sexually transmitted diseases and (d) infiltration by organized crime for the purpose of drug and sex related business activities, laundering of money and other illicit conduct. This ordinance is not intended to interfere with legitimate expression but to avoid and mitigate the secondary effects enumerated above. Specifically, the Board of Supervisors finds the licensing of persons who operate and manage adult oriented businesses and persons who provide adult services will further the goals of the ordinance by enabling the County to ascertain if an applicant is underage or has engaged in criminal or other behavior of the sort the ordinance is designed to limit. This information will enable the County to allocate law enforcement resources effectively and otherwise protect the community. The Board of Supervisors finds that limiting proximity and contact between adult service providers and patrons promotes the goal of reducing prostitution and other casual sexual conduct and the attendant risk of sexually transmitted diseases. The Board of Supervisors finds the foregoing to be true with respect to places where alcohol is served and where it is not. The Board of Supervisors finds that individual and interactive sexual activities in adult video facilities pose a risk of sexually transmitted disease, especially AIDS, and *1024 that the booth configuration options of the ordinance will reduce that risk. The Board of Supervisors finds that the harmful secondary effects of adult oriented businesses are more pronounced when conducted continuously or during late night hours. The fees established for licenses and permits in this ordinance are based on the estimated cost of implementation, administration and enforcement of the licensing program. SECTION 2. DEFINITIONS The following words, terms and phrases when used in this ordinance shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Adult Arcade means any place to which the public is permitted or invited and in which coin-operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-producing devices are maintained to show images involving specific sexual activities or specific anatomical areas to persons in booths or viewing rooms. Adult Bookstore or Adult Video Store means a commercial establishment that offers for sale or rent © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 31 any of the following as one of its principal business purposes: (1) Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, video cassettes or video reproductions or slides or other visual representations that depict or describe specific sexual activities or specific anatomical areas; or (2) Instruments, devices or paraphernalia that are designed for use in connection with specific sexual activities. Adult Live Entertainment Establishment means an establishment that features either: (1) Persons who appear in a state of nudity; or (2) Live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities. Adult Motion Picture Theater means a commercial establishment in which for any form of consideration films, motion pictures, video cassettes, slides or other similar photographic reproductions that are characterized by the depiction or description of specific sexual activities or specific anatomical areas are predominantly shown. Adult oriented business means adult arcades, adult bookstores or adult video stores, cabarets, adult live entertainment establishments, adult motion picture theaters, adult theaters, massage establishments that offer adult service or nude model studios. Adult oriented business manager or "manager" means a person on the premises of an adult oriented business who is authorized to exercise overall operational control of the business. Adult service means dancing, serving food or beverages, modeling, posing, wrestling, singing, reading, talking, listening or other performances or activities conducted for any consideration in an adult oriented business by a person who is nude or seminude during all or part of the time that the person is providing the service. Adult service business means a business establishment or premises where any adult service is provided to patrons in the regular course of business. Adult service provider or "provider" means any person who provides an adult service. Adult theater means a theater, concert hall, auditorium or similar commercial establishment that predominantly features *1025 persons who appear in a state of nudity or who engage in live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities. Booth means a partitioned area, in which coin or token operated video machines, projectors or other electronically or mechanically controlled devices are used in the regular course of business to produce still or moving picture images characterized by depiction of specific sexual activities or specific anatomical areas. Cabaret means an adult oriented business licensed to provide alcoholic beverages pursuant to A.R.S. Title 4, Chapter 2, Article 1. County Sheriff means the elected County Sheriff or the Sheriffs designee. Director means the director of Maricopa County Planning and Development Department or the Director's designee. Employee means any person hired, engaged or authorized to perform any service on the premises of an adult service business, including an adult service provider, whether denominated as an employee, independent contractor or otherwise. Enterprise means a corporation, association, labor union or other legal entity, as provided in A.R.S. 13-105. License means the license required by this ordinance as a condition to conducting an adult oriented business. Licensee means a person or enterprise holding an adult oriented business license issued under this ordinance, including those persons required to provide information under section 6 of this ordinance. 12005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 32 Manager's station means a permanently designated area marked accordingly within an adult oriented business where an adult oriented business manager is located in the normal course of operations. Massage Establishment means an establishment in which A person, firm, association or corporation engages in or permits massage activities, including any method of pressure on, friction against, stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating of external soft parts of the body with the hands or with the aid of any mechanical apparatus or electrical apparatus or appliance. This definition shall not apply to: (1) Physicians licensed pursuant to A.R.S. Title 32, Chapter 7, 8,13, 14 or 17; (2) Registered nurses, licensed practical nurses or technicians who are acting under the supervision of a physician licensed pursuant to A.R.S. Title 32, Chapter 13 or 17; (3) Persons employed or acting as trainers for any bona fide amateur, semiprofessional or professional athlete or athletic team; (4) Persons who are licensed pursuant to A.R.S. TITLE 32, Chapter 3 or 5, if the activity is limited to the head, face or neck. Nude Model Studio means a place in which a person who appears in a state of nudity or who displays specific anatomical areas is observed, sketched, drawn, painted, sculptured, photographed or otherwise depicted by other persons who pay money or other consideration. Nude model studio does not include a proprietary school that is licensed by the State of Arizona or a college, community college or university that is supported entirely or in part by taxation, a private college or university that maintains or operates educational programs in which credits are transferable to a college, community college or university supported entirely or partly by taxation, or a structure to which the following apply: *1026 (1) A sign is not visible from the exterior of the structure and no other advertising appears indicating that a nude person is available for viewing; and (2) A student must enroll at least three days in advance of the class in order to participate; and (3) No more than one nude or seminude model is on the premises at any time. Nude, Nudity or state of nudity means any of the following: a) The appearance of a human anus, or female breast below a point immediately above the top of the areola. b) A state of dress which fails to opaquely cover a human anus, genitals or female breast below a point immediately above the top of the areola. Patron means a person invited or permitted to enter and remain upon the premises of an adult oriented business, whether or not for consideration. Permit means the permit required by this ordinance to engage in the activities of an adult service provider or an adult oriented business manager. Principal business purposes means that a commercial establishment derives fifty percent or more of its gross income from the sale or rental of items listed in subparagraphs (1) and (2) of the definitions in this section of adult bookstore or adult video store. Seminude means a state of dress in which clothing covers no more than the genitals, pubic region and female breast below a point immediately above the top of the areola, as well as portions of the body that are covered by supporting straps or devices. Specific anatomical areas means any of the following: a) A human anus, genitals, pubic region or a female breast below a point immediately above the top of the areola that is less than completely and opaquely covered. b) Male genitals in a discernible turgid state even if completely and opaquely covered. Specific sexual activities means any of the following: a) Human genitals in a state of sexual stimulation or arousal. b) Sex acts, normal or perverted, actual or simulated, including acts of human masturbation, sexual intercourse, oral copulation or sodomy. c) Fondling or other erotic touching of the human genitals, pubic region, buttocks, anus or female breast. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 33 d) Excretory functions as part of or in connection with any of the activities under subdivision a), b) or c) of this definition of specific sexual activities. SECTIONS. PURPOSE The principal purpose of this ordinance is to establish licensing procedures and regulations for adult oriented businesses and facilities, and their employees, within the unincorporated areas of Maricopa County. The procedures and regulations contained herein are designed to accommodate these types of businesses and facilities while still recognizing the need to promote the public health, safety and general welfare of the citizens of Maricopa County. SECTION4. ADMINISTRATION a) The administration of this ordinance, including the duty of prescribing forms, is vested in the Director, except as otherwise specifically provided. The County Sheriff shall render such assistance in the administration and enforcement of this ordinance as may be requested by the Director. *1027 b) License or permit applications made pursuant to this ordinance shall be submitted to the Director who shall grant, deny, suspend or revoke licenses or permits in accordance with the provisions of this ordinance. c) Licenses issued pursuant to this ordinance shall be valid for a period of one year from date of issuance. d) Permits issued pursuant to this ordinance shall be valid for a period of three years from the date of issuance. SECTION 5. ADULT ORIENTED FACILITIES BUSINESS LICENSE REQUIRED a) A person or enterprise may not conduct an adult oriented business without first obtaining an adult oriented business license pursuant to this ordinance. The license shall state the name of the license holder, the name, address and phone number of the licensed premises, and the dates of issuance and expiration of the license. b) An adult oriented business for which a license has been issued pursuant to this ordinance may conduct business only under the name or designation specified in the license. c) A licensee shall conduct business only at the address shown on the license. Each additional place of business shall require a separate license. d) An adult oriented business license shall be displayed on the premises in such a manner as to be readily visible to patrons. SECTION 6. APPLICATION FOR ADULT ORIENTED BUSINESS LICENSE a) An applicant for an adult oriented business license shall file at the office of the Director an application, signed under oath by the applicant and notarized, accompanied by the fee required under section 21. An applicant or other person whose fingerprints and photograph are required under paragraph C may, at his option, be photographed and fingerprinted at the office of the Sheriff or other law enforcement agency. An application shall be deemed complete when the Director has received the required fees, all information required in paragraph C, fingerprints of the applicant and a photograph of the applicant's face, and, in the case of a corporation or other business organization, A photograph and fingerprints of all persons for whom information is required under paragraph C of this section. The purpose for obtaining these fingerprints and photographs is to obtain a state and federal records check. The Sheriffs Office and the Department of Public Safety are authorized to exchange this information with the Federal Bureau of Investigation. b) Fingerprints and photograph, if not taken at the office of the Sheriff, shall be taken by a law enforcement agency and accompanied by a notarized verification by that agency. If the applicant requests that fingerprints and photograph be taken by the office of the sheriff, such fingerprints and photograph shall be completed by the office of the sheriff within ten working days of the request. Any such fingerprints or photograph not completed by the office of the sheriff within ten working days of the request shall be deemed to have been completed and received by the director for purposes of the application. c) The application shall include the information called for in subparagraphs 1 through 10. If the 12005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384F.3d990 384 F.3d 990,04 Cal. Daily Op. Serv. 8784,2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 34 applicant is an enterprise, it shall designate an officer *1028 or partner as applicant. In such case, in addition to the information required in subparagraphs 1 through 10 for the applicant, the application shall include the State and date of formation of the organization and the information called for in subparagraphs 2 through 7 of this section with respect to each officer, director, general partner, and all other persons with authority to participate directly and regularly in management of the business, provided that, such information need not be provided with respect to attorneys, accountants and other persons whose primary function is to provide professional advice and assistance to the licensee. 1) The name, business location, business mailing address and phone number of the proposed adult oriented business establishment. 2) The applicant's full true name and other names, aliases or stage names used in the preceding five years. 3) The applicant's current residential mailing address and telephone number. 4) Written proof of age of the applicant, in the form of a birth certificate, current driver's license with picture, or other picture identification document issued by a governmental agency. 5) The issuing jurisdiction and the effective dates of any license or permit relating to an adult oriented business or adult service, whether any such license or permit has been revoked or suspended within the past two years, and, if so, the reason or reasons therefor. 6) All criminal charges, complaints or indictments in the preceding three years which resulted in a conviction or a plea of guilty or no contest for an "organized crime and fraud" offense under A.R.S. title 13, chapter 23, a "prostitution" offense under A.R.S. title 13, chapter 32, a "drug offense" under A.R.S. title 13, chapter 34, or a "sexual offense" under A.R.S. title 13, sections 1401 through 1406 or under section 1412, or for conduct hi another jurisdiction which if carried out in Arizona would constitute an offense under one of the statutory provisions enumerated in this subparagraph. 7) The applicant's fingerprints and a photograph of the applicant's face. 8) The name and address of the statutory agent or other agent authorized to receive service of process. 9) The names of the adult oriented business manager(s) who will have actual supervisory authority over the operations of the business. 10) An accurate, to scale, but not necessarily professionally drawn, site plan and floor plan of the business premises and, in an application for an adult service business license, also clearly indicating the location of one or more manager's stations. d) The information provided pursuant to subparagraphs 5 and 6 of paragraph C of this section shall be supplemented in writing by certified mail to the Director within ten working days of a change of circumstances which would render the information originally submitted false or incomplete. e) As requested by the director, the Sheriff shall investigate and confirm information supplied by the applicant. SECTION 7. ADULT ORIENTED BUSINESS MANAGER PERMIT a) A person may not serve as an adult oriented business manager unless the person has first secured an adult oriented *1029 business manager permit under this section. b) Application for an adult oriented business manager permit shall be made in the same manner as application for an adult business license, except that the applicant need provide only the information called for in subparagraphs 2 through 7 of section 6(c). c) The purpose for obtaining the applicant's fingerprints and a photograph of the applicant's face is to obtain a state and federal records check. The sheriffs office and the department of public safety are authorized to exchange this information with the federal bureau of investigation. SECTION 8. ADULT SERVICE PROVIDER PERMIT a) A person may not work as an adult service provider unless the person has first obtained an adult service provider permit under this section. b) Application for an adult service provider permit shall be made in the same manner as an application for an adult oriented business license, except that the © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 35 applicant need provide only the information called for in subparagraphs 2 through 7 of section 6(c). c) The purpose for obtaining the applicant's fingerprints and a photograph of the applicant's face is to obtain a state and federal records check. The sheriffs office and the department of public safety are authorized to exchange this information with the federal bureau of investigation. SECTION 9. CONFIDENTIALITY The information provided by an applicant in connection with the application for a license or permit under this ordinance shall be maintained in confidence by the Director, subject only to the public record laws of the State of Arizona. SECTION 10. GRANT OR DENIAL OF LICENSE OR PERMIT a) Within forty five days after receipt of a complete application for an adult oriented business license, the Director shall mail to the applicant a license or a notice of intent to deny. If the Director fails to do so, the license shall be deemed granted. b) Upon receipt of an application for an adult oriented business manager permit or an adult service provider permit, including all information required by sections 7(b) and 8(b), payment of the required fees and completion of photograph and fingerprinting requirements of section 6, the Director shall issue to the applicant a temporary permit. Within thirty days after issuance of a temporary permit, the Director shall mail to the applicant a regular permit or a notice of intent to deny. If the Director fails to do so, the permit shall be deemed granted. c) The issuance of any license, permit or temporary permit does not waive any right of County to revoke, deny or suspend for any defect, omission or misrepresentation in the application. d) The Director shall grant the license or permanent permit to an applicant who has completed all requirements for application, unless the Director finds any of the following conditions noted below. For purposes of this paragraph, a person required to submit information pursuant to section 6(c) shall be deemed an applicant. 1) The application is incomplete or contains a misrepresentation, false statement or omission. 2) The applicant has failed to comply with applicable zoning or other land *1030 use ordinances of the County relating to the business or activity to be carried out under the license or permit. 3) The applicant is delinquent hi payment of any county taxes, fees or other payments due in connection with the business or activity to be carried out under the license or permit. 4) The applicant is not at least eighteen years of age. 5) The applicant, or other person required to provide information under section 6(c), in the past three years has been convicted, or plead guilty or no contest with respect to a felony violation or two misdemeanor violations of one or more offenses in the categories stated in section 6(c). 6) Within the past two years, a license or permit under this article held by an applicant, or other person required to provide information pursuant to section 6(c), has been revoked, or a similar license in another jurisdiction has been revoked on the basis of conduct which would be a ground for revocation of a license or permit issued under this section if committed in the county. SECTION11. NON-TRANSFERABILITY Licenses and permits issued under this article are nontransferable. SECTION 12. ADULT SERVICE PROVIDER OR MANAGER WORK IDENTIFICATION CARD The Director shall provide a work identification card to all adult service providers and adult oriented business managers. The card shall contain a photograph of the permittee, the number of the permit issued to that permittee and the date of expiration of the permit. SECTION 13. ADULT SERVICE BUSINESS; OPERA TING REQUIREMENTS a) A person employed or acting as an adult service provider or manager shall have a valid permit issued pursuant to the provisions of this ordinance. A permit or a certified copy thereof for each manager or > 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 36 provider shall be maintained on the premises in the custody of the manager at all times during which a person is serving as a provider or manager on the premises. Such permits shall be produced by the manager for inspection upon request by a law enforcement officer or other authorized county official. b) An adult service business shall maintain a daily log of all persons providing adult services on the premises. The log shall cover the preceding twelve month period and shall be available for inspection upon request by a law enforcement officer or other authorized county official during regular business hours. c) A person below the age of eighteen years may not observe or provide an adult service. d) A person may not provide an adult service in an adult service business except upon a stage elevated at least eighteen inches above floor level. All parts of the stage, or a clearly designated area thereof within which the adult service is provided, shall be a distance of at least three feet from all parts of a clearly designated area in which patrons may be present. The stage or designated area thereof shall be separated from the area in which patrons may be located by a barrier or railing the top of which is at least three feet above floor level. A provider *1031 or patron may not extend any part of his or her body over or beyond the barrier or railing. e) An adult service provider, in the course of providing an adult service, may not perform a specific sexual activity. f) Adult services may not be provided between the hours of 1:00 a.m. and 8:00 a.m. on Monday through Saturday or between the hours of 1:00 a.m. and 12:00 noon on Sunday. g) An adult service may not be provided in any location which is not visible by direct line of sight at all times from a manager's station located in a portion of the premises which is accessible to patrons of the adult service business. h) An adult service provider shall wear his or her adult service provider work identification card at all times while on the premises except while providing an adult service. The card shall be affixed to clothing on the front of the person and above waist level so that the picture and permit number are clearly visible to patrons. i) An adult oriented business manager shall be on the premises of an adult service business at all times during which any adult service is provided on the premises. The manager shall wear his or her identification card in the manner described in paragraph h above. j) An employee may not knowingly or intentionally touch the breast, buttocks or genitals of a patron, nor may a patron knowingly or intentionally touch the breast, buttocks or genitals of an employee, k) A sign, in a form to be prescribed by the Director summarizing the provisions of subparagraphs c, d, j, and 1 of this section, shall be posted near the entrance of an adult service business in such a manner as to be clearly visible to patrons upon entry. 1) A patron may not place any money on the person or in or on the costume of an adult service provider while the adult service provider is nude or seminude. m) A manager or licensee may not knowingly permit or tolerate a violation of any provision of this section, n) With respect to a cabaret, the requirements of this section shall apply to the extent that they are not in conflict with specific statutory or valid regulatory requirements applicable to persons licensed to dispense alcoholic beverages. SECTION 14. ADULT ARCADES; OPERATING REQUIREMENTS a) An adult arcade shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one footcandle, as measured at the floor level. b) Each booth or viewing room shall either: (a) be configured in such a way that allows persons patrolling the area outside the booth or viewing room to observe from outside the booth or viewing room the activities of any occupant in the interior of the booth or viewing room, or (b) if not so configured, be equipped with a mirror or other device which allows persons patrolling the area outside the booth or viewing room to observe from outside the booth or viewing room the activities of any occupant in the interior of the booth or viewing room. 12005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034' (Cite as: 384 F.3d 990) Page 37 c) An adult oriented business manager shall be on the premises of an adult arcade at all times that the arcade is open for business. The manager shall *1032 wear his or her identification card in the manner described in section 13(h) above. d) A patron may not engage in specific sexual activities on the premises of an adult arcade. e) A booth or viewing room shall not have any hole or aperture in any wall separating that booth or viewing room from another. f) A manager or licensee may not knowingly permit or tolerate a violation of any provision of this section. SECTION 15. INSPECTION OF PREMISES AND RECORDS The manager shall permit law enforcement officers or other authorized county officials to inspect the premises upon request during regular business hours. SECTION 16. SUSPENSION OF LICENSE OR PERMIT The Director shall suspend a license or permit for a period of ten days if the licensee or permittee is convicted of violating a provision of this ordinance. SECTION 17. REVOCATION OF LICENSE OR PERMIT The Director shall revoke a license or permit issued pursuant to this ordinance if the licensee or permittee: a) Is convicted of three or more violations of this ordinance in any twelve month period. b) Is convicted or pleads guilty or no contest to an offense stated in section 6(c). c) Is determined to have filed inaccurate information required under section 10(d) of this ordinance. SECTION 18. PROCEDURES FOR DENIAL, REVOCA TION, NONRENEWAL OR SUSPENSION; APPEAL If the Director determines that grounds exist for denial, suspension or revocation of a license or permit under this ordinance, he/she shall notify the applicant, licensee or permittee (respondent) in writing of his/her intent to deny, suspend or revoke, including a summary of the grounds therefor. The notification shall be by certified mail to the address on file with the Director. Within ten working days of receipt of such notice, the respondent may provide to the Director in writing a response which shall include a statement of reasons why the license or permit should not be denied, suspended or revoked and may include a request for a hearing. If a response is not received by the Director in the time stated, the notification shall be the final administrative action of denial, suspension or revocation and notice of such will be sent to the permittee or licensee within five working days after the expiration of the period for submitting a response. Within five working days after receipt of a response, the Director shall either withdraw the intent to deny, suspend or revoke, and send notification of the withdrawal to the respondent in writing by certified mail, or shall schedule a hearing before a hearing officer and send notification to the respondent in writing by certified mail of the date, time and place of the hearing. If the Director fails to send a timely notification either withdrawing the intent or scheduling a hearing, the intent to deny, suspend or revoke shall be deemed withdrawn. The hearing, if requested, shall be scheduled not less than fifteen nor more than thirty working days after receipt by the Director of the request for a hearing. The hearing shall be conducted in an informal manner. The respondent may be represented by counsel. If respondent is represented *1033 by counsel, attorneys' fees shall be at the expense of respondent. The rules of evidence shall not apply. Respondent shall have the burden of proving by a preponderance of the evidence that the denial, suspension or revocation was arbitrary or capricious and an abuse of discretion. The hearing officer shall render a written decision within five working days after completion of the hearing and shall mail a copy of the decision by certified mail to the address of the respondent on file with the Director. If more than forty five days elapse between receipt by the Director of a request for a hearing and mailing by the hearing officer of a final decision to the respondent, a decision in favor of the applicant, licensee or permittee shall be deemed to have been rendered. In the case of an intent to revoke, suspend or non-renew a license or © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 38 permit, or to deny a regular permit, the permittee or licensee may continue to function under the license or permit pending receipt of the final decision of the hearing officer. The decision shall be final at the end of five working days after it is mailed and shall constitute final administrative action. SECTION 19. JUDICIAL APPEAL Final administrative action to deny, revoke or non-renew a license or permit may be appealed to the Superior Court by special action or other available procedure within thirty five days after receipt of written notice of the decision. The County shall consent to expedited hearing and disposition. If a permittee or licensee pursues a judicial appeal from a final administrative action, that permittee or licensee may continue to function under the license or permit pending completion of judicial review. SECTION 20. LICENSE AND PERMIT RENEWAL a) A license or permit may be renewed by filing an application for renewal in writing with the Director. The application shall contain the information required to be submitted with an original application, including fingerprints and a photograph, provided that, a renewal application need not contain any other information that has been provided in a previous application and has not changed since the time of the most recent application. An application for license renewal shall be received by the Director not less than forty five days before the expiration of the license. An application for permit renewal shall be received by the Director before expiration of the permit. b) The Director may deny an application for renewal for the reasons and in accordance with the procedures set forth in Section 10. SECTION 21. FEES a) An original application for an adult oriented business license shall be accompanied by a non-refundable application fee in the amount of five hundred dollars ($500) and by a license fee in the amount of five hundred dollars ($500). The license fee will be refunded if the license is denied. An application for renewal shall be accompanied by the amount of the license fee. b) An application for issuance or renewal of an adult service provider permit shall be accompanied by a non-refundable fee of one hundred dollars ($100). c) An application for issuance or renewal of an adult oriented business manager permit shall be accompanied by a non-refundable fee of one hundred and fifty dollars ($150). d) A duplicate or certified copy of a license, permit or identification card shall be issued by the Director upon payment of a fee often dollars ($10). *1034 e) An applicant also shall be required to pay, to the law enforcement agency which provides the applicant with fingerprinting or photography services, the standard fee, if any, charged by that agency for each set of fingerprints and the photograph required to be provided under section 6. SECTION22. OTHER REGULATIONS A license or permit required by this ordinance is in addition to any other licenses or permits required by the County or the State to engage in the business or occupation. Persons engaging in activities described in this ordinance shall comply with all other ordinances and laws, including the County Zoning Ordinance, as may be required, to engage in a business or profession. SECTION23. PENALTY a) Violation of any requirement or prohibition stated in this ordinance is a Class 2 Misdemeanor, punishable upon conviction by a fine of not more than seven hundred and fifty dollars ($750) or by imprisonment for not more than four months. With respect to a violation that is continuous in nature, each day that the violation continues shall constitute a separate offense. b) In addition to other penalties, an adult oriented business which operates without a valid license shall constitute a public nuisance which may be abated in a manner provided by law. SECTION 24. APPLICABILITY This ordinance shall apply to all persons engaging in © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 384 F.3d 990 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 (Cite as: 384 F.3d 990) Page 39 the activities described herein, whether or not such activities were commenced prior to the effective date of this ordinance. Persons so engaged as of the effective date of this ordinance shall be in full compliance with this ordinance, including receipt of any required license or permit, within one hundred eighty days after the effective date of this ordinance. SECTION 25. SEVERABILITY Each section and each provision or requirement of any section of this ordinance shall be deemed severable and the invalidity of any portion of this ordinance shall not affect the validity or enforceability of any other portion. ADOPTED April 23,1997 AMENDED July 12,1997 AMENDED July 17,1998 ADOPTED as Amended this 2nd day of September, 1998. 384 F.3d 990, 04 Cal. Daily Op. Serv. 8784, 2004 Daily Journal D.A.R. 12,034 Briefs and Other Related Documents (Back to top) • 2004 WL 2085103 (Appellate Brief) Appellants' Supplemental Reply Brief on Impact of City of Littleton v. Z.J. Gifts on Disposition of this Appeal (Aug. 20, 2004)Original Image of this Document with Appendix (PDF) • 2004 WL 1948899 (Appellate Brief) Appellants' Initial Supplemental Brief on Impact of City of Littleton v. Z.J. Gifts on Disposition of this Appeal (Jul. 20, 2004)Original Image of this Document (PDF) • 2004 WL 1816509 (Appellate Brief) Appellee's Second Supplemental Answering Brief (Jul. 01, 2004)Original Image of this Document (PDF) • 2002 WL 32302158 (Appellate Brief) Appellee's Supplemental Answering Brief (Aug. 12,2002)Original Image of this Document (PDF) •00-16531 (Docket) (Aug. 17,2000) END OF DOCUMENT © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 24 Pagel 681 F.2d 1243 (Cite as: 681 F.2d 1243) United States Court of Appeals, Ninth Circuit. ELLWEST STEREO THEATRES, INC., a corporation, Plaintiff-Appellant, v. Paul WENNER, Individually and as the treasurer of the City of Phoenix, Lawrence Wetzel, individually and as the chief of police of the City of Phoenix, Defendants-Appellees. No. 80-5732. Argued and Submitted Jan. 8, 1982. Decided July 23, 1982. Theater operating movie arcade in which members of public paid to view sexually explicit films in booths brought action challenging" constitutionality of city ordinance requiring that viewing areas of booths in which coin-operated viewing devices are located be visible from continuous main aisle. The United States District Court for the District of Arizona, C. A. Muecke, Chief Judge, held that ordinance was reasonable regulation of operation of theaters not based upon content of films shown. Appeal was taken. The Court of Appeals, Schroeder, Circuit Judge, held that city ordinance was not violative on its face of free speech or privacy clauses of Constitution. Affirmed. West Headnotes [1] Constitutional Law €=*>0.4(1) 92k90.4(l) Most Cited Cases (Formerly 92k90.1(1)) Obscene materials are not protected speech within meaning of First Amendment as applied to states through Fourteenth Amendment. U.S.C.A.Const.Amends. 1, 14. [2] Constitutional Law €=^90(1) 92k90(l) Most Cited Cases Regulations of time, place, or manner of protected speech will be upheld if necessary to further significant governmental interests, and requiring such a showing insures that expression protected by First Amendment will not be unduly inhibited by regulation of its form. U.S.C.A.Const.Amend. 1. [3] Constitutional Law €=>90.4(4) 92k90.4(4) Most Cited Cases (Formerly 92k90.1(6)) City ordinance requiring that viewing areas of booths in which coin operated viewing devices are located be visible from a continuous aisle is not unconstitutional on its face as violative of free speech provision of Constitution in that ordinance is aimed at curtailing public sexual criminal offenses and as such clearly seeks to further significant state interests. U.S.C.A.Const.Amends. 1, 14. [4] Constitutional Law €=>90.4(4) 92k90.4(4) Most Cited Cases (Formerly 92k90.1(6)) City ordinance requiring that viewing areas of booth in which coin-operated viewing devices are located be visible from continuous main aisle is reasonable regulation of manner in which films may be viewed as well as shown. U.S.C.A.Const.Amends. 1, 14. [5] Constitutional Law €=^82(10) 92k82(10) Most Cited Cases The "right" to unobserved masturbation in a public theater is not "fundamental" or "implicit in the concept of ordered liberty." U.S.C.A.Const.Amends. 1, 14. [6] Constitutional Law €=>82(7) 92k82(7) Most Cited Cases City ordinance requiring that viewing areas of booths in which coin-operated viewing devices are located be visible from continuous main aisle is not unconstitutional on its face as violative of privacy pro visions of Constitution. U.S.C.A.Const.Amends. 1, 14. [7] Constitutional Law €=^42.2(1) 92k42.2(l) Most Cited Cases Theater challenging city ordinance requiring that viewing areas of booths in which coin-operated viewing devices are located be visible from continuous main aisle did not have standing to assert Fourth Amendment rights of its customers which might arise from police surveillance of open booths in arcades that have complied with ordinance. U.S.C.A.Const.Amend. 4. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 2 *1244 Richard J. Hertzberg, Phoenix, Ariz., for plaintiff-appellant. Sandra K. McGee, Phoenix, Ariz., for defendants-appellees. Appeal from the United States District Court for the District of Arizona. Before CHAMBERS, KENNEDY and SCHROEDER, Circuit Judges. SCHROEDER, Circuit Judge. Appellant Ellwest Stereo Theatres ("Ellwest") operates a Phoenix, Arizona movie arcade in which members of the public pay to view sexually explicit films in booths. Ellwest brought suit challenging the constitutionality of a City of Phoenix ordinance requiring that the viewing areas of booths in which coin operated viewing devices are located be visible from a continuous main aisle. On the basis of stipulated facts, the district court held that the ordinance was a reasonable regulation of the operation of theaters not based upon the content of the films shown, and entered judgment in favor of the City. We affirm. Chapter VII of the Phoenix City Code requires, inter alia, that anyone engaged in running a "video center" obtain a license from the city. Section 7-3 (a) (a) defines a "video center" as "(a)ny establishment open to the public wherein are operated any film or videotape viewing device (sic)." Section 7-30(a)(6) provides as follows: (6) Position of film or video viewing device in video center. *1245 (a) Definition for purposes of this section. (1) Viewing area-area where patron or customer would ordinarily be positioned while watching a film or video viewing device. (b) All viewing areas must be visible from a continuous main aisle and must not be obscured by any curtain, door, wall, or other enclosure. (c) All persons regulated pursuant to this Chapter must comply with Section 7-30(a)(6) within 30 days of the effective date of the ordinance. Ellwest is a "video center" within the meaning of the ordinance and thus is required to obtain a license. Ellwest applied for a license without complying with s 7-30(a)(6) as set forth above. The application was denied on the ground that the viewing areas of the booths were not visible from a continuous main aisle. The City alleges that the ordinance was passed as a response to complaints that the display of adult films in the arcades was causing sex-related criminal activity. The parties stipulated that "(s)ome customers in the booths viewing the films will, on occasion, take the opportunity to fondle themselves or masturbate." The parties further stipulated that in the two years preceding this lawsuit, "(t)here were 783 sex-related arrests in the eleven business establishments located in the City of Phoenix which have video viewing devices such as Plaintiffs displaying 'adult1 films. Sex-related offenses include public sex indecency, public sexual activity, indecent exposure, and lewd and lascivious conduct." [FN1] FN1. Ellwest does not challenge the state's power to criminalize public sexual activity. The stipulated facts amply support the City's contention that such activity occurs with great frequency in arcades where movies are exhibited in enclosed booths. The sole issue presented, as framed by Ellwest in its appellate brief, is whether the ordinance "requiring open booths in motion picture arcades is unconstitutional on its face as violative of the Free Speech and Privacy provisions of the United States Constitution." First, Ellwest argues that its own exercise of first amendment rights is limited by the ordinance. Second, Ellwest asserts infringement of the constitutional rights of its customers under the first and fourteenth amendments. Each of these contentions will be analyzed in turn. CLAIMED INFRINGEMENT OF ELLWEST'S CONSTITUTIONAL RIGHTS (1) We begin with the proposition that Ellwest has a constitutional right to exhibit its films. It is settled that obscene materials are not protected speech within the meaning of the first amendment, as applied to the states through the fourteenth amendment. Ginsberg v. New York, 390 U.S. 629, 635, 88 S.Ct. 1274, 1278, 20 L.Ed.2d 195 (1968); Smith v. California, 361 U.S. 147, 152, 80 S.Ct. 215,218,4 L.Ed.2d 205 (1959); Roth v. United States, 354 U.S. 476,485,77 S.Ct. 1304,1309, 1 L.Ed.2d 1498 (1957). The City does not contend, however, that the films are obscene, or that their content is undeserving of first amendment protection for any other reason. See New York v. Ferber, 458 U.S. 747, —-, 102 S.Ct. 3348, 3358, 72 L.Ed.2d —- (1982). Thus, we must assume their dissemination by Ellwest is Copr. © West 2003 No Claim to Orig. U.S. Govt. Works PageS protected by the first amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,501-02,72 S.Ct. 777,780,96 L.Ed. 1098 (1952). Ellwest does not nor could it successfully contend that the Phoenix ordinance regulates speech on the basis of content. [FN2] The ordinance does not prohibit the showing of any film whatever. Ellwest may still exhibit any film it wishes, and its discretion in selecting those films is unbridled by the ordinance. "There is no claim that distributors or exhibitors of adult films are denied access to the market or, conversely, that the viewing public is unable to satisfy its appetite for sexually explicit fare." *1246Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976). This is not an ordinance which prohibits the showing of any constitutionally protected film. We thus are not faced with the considerations which recently led us to hold that a prohibition on all topless entertainment was unconstitutional on its face as overbroad. Chase v. Davelaar, 645 F.2d 735 (9th Cir. 1981). See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268,45 L.Ed.2d 125 (1975). FN2. The ordinance by its terms applies to all enclosed video viewing booths regardless of the type of film shown. Its reach is not limited to booths in which "adult" films are displayed. Nor does Ellwest make a claim of discriminatory enforcement. (2) The ordinance does regulate the manner in which films chosen by Ellwest may be shown. Regulations of the time, place, or manner of protected speech will be upheld if necessary to further significant governmental interests. Requiring such a showing insures that expression protected by the first amendment will not be unduly inhibited by regulation of its form. Reasonable regulations of the time, place, and manner of protected speech, where those regulations are necessary to further significant governmental interests, are permitted by the First Amendment. See, e.g., Kovacs v. Cooper, 336 U.S. 77 (69 S.Ct. 448, 93 L.Ed. 513) (limitation on use of sound trucks); Cox v. Louisiana, 379 U.S. 559 (85 S.Ct. 476, 13 L.Ed.2d 487) (ban on demonstrations in or near a courthouse with the intent to obstruct justice); Grayned v. City of Rockford, 408 U.S. 104 (92 S.Ct. 2294, 33 L.Ed.2d 222) (ban on willful making, on grounds adjacent to a school, of any noise which disturbs the good order of the school session). Young v. American Mini Theatres, Inc., 427 U.S. 50, 63 n.18, 96 S.Ct. 2440, 2448 n.18, 49 L.Ed.2d 310 (1976). (3) Ellwest contends that the ordinance is not justified as a reasonable regulation of the time, place, and manner of protected speech. It needs no extended discussion, however, to uphold the open booth requirement against this line of attack. The ordinance, as the parties have stipulated, is aimed at curtailing public sexual criminal offenses and as such it clearly seeks to further significant state interests.[FN3] In this respect we agree with the conclusion of the California court of appeal upholding the ordinance upon which the Phoenix City Council patterned its own enactment. That court explained the problem giving rise to the prohibition of enclosed booths and concluded that the ordinance furthered significant interests of the city. FN3. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440,49 L.Ed.2d 310 (1976), the Court observed that a zoning regulation requiring geographic dispersion of licensed theaters does not, in itself, create an impermissible restraint on protected communication. The city's interest in planning and regulating the use of property for commercial purposes is clearly adequate to support that kind of restriction applicable to all theaters within the city limits. In short, ... the regulation of the place where such films may be exhibited does not offend the First Amendment. Id. at 62-3, 96 S.Ct. at 2448 (footnote omitted). "A picture arcade is a business, carried on in a place which the public generally is invited to enter and use. Since it is a place of entertainment, its patrons are not expected to enter with the solemnity of a business visitor at a mercantile establishment. Ordinarily those entering a picture arcade are seeking amusement, relaxation or excitement, possibly sexual stimulation or gratification depending on the taste or mood of the individual and the kind of pictures exhibited. Among such visitors it is foreseeable that some will be predisposed to conduct which is offensive, dangerous to others and even unlawful. The potential for misuse of the premises, for law violations, and for bodily harm to law-abiding patrons, is obvious, as is the concomitant need for (deterring such conduct)." The City has a substantial interest in preventing the kind of dangerous or unlawful conduct, as well as the health and safety problems, which may be anticipated in a picture arcade where the booths are concealed or enclosed. The prohibition of such booths furthers the Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 4 City's interest in deterring and detecting the use of the premises for such unlawful activity. *1247EWAP, Inc. v. City of Los Angeles, 97 Cal.App.3d 179, 189-90, 158 Cal.Rptr. 579, 585 (1979), quoting People v. Perrine, 47 Cal.App.3d 252, 258, 120 CaLRptr. 640, 643-44 (1975). See also DeMott v. Board of Police Comm'rs, 122 Cal.App.3d 296, 175 CaLRptr. 879 (1981). We similarly hold that the ordinance does not impermissibly infringe upon Ellwest's first amendment rights. CLAIMED INFRINGEMENT OF CUSTOMERS' CONSTITUTIONAL RIGHTS Ellwest argues alternatively that the ordinance impermissibly impinges upon the first amendment and privacy rights of the patrons of its establishment. We observe initially that the Supreme Court has never held that an owner of a theater has standing to assert the constitutional rights of its customers. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65, 93 S.Ct. 2628, 2639, 37 L.Ed.2d 446 (1973), the Court assumed for purposes of argument that the owner had such vicarious standing, and we do the same here. (4) The considerations discussed with respect to the owner's right to exhibit the films apply with equal force to the alleged interference with the first amendment rights of patrons to view the films. The ordinance is a reasonable regulation of the manner in which films may be viewed as well as shown. See Young v. American Mini Theatres, Inc., 427 U.S. 50,79-80,96 S.Ct, 2440, 2456-57, 49 L.Ed.2d 310 (1976) (Powell, J., concurring); United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct 1673, 1679, 20 L.Ed.2d 672 (1968); EWAP, Inc. v. City of Los Angeles, 97 Cal.App.3d 179, 189-90, 158 Cal.Rptr. 579, 585-86 (1979). Ellwest also contends that the open booth requirement has a chilling effect on the exercise by potential customers of the constitutionally protected right to view the exhibited films. Citing NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), Ellwest urges that a law that exposes to public view the identities of persons engaged in unpopular but nevertheless protected activity impermissibly chills the right by subjecting those who would exercise it to the possibility of vilification or recrimination. We are not authorized, however, to determine the validity or invalidity of a statute or ordinance in the abstract. There is nothing in the record that supports the suggestion that, because of the open booth requirement, potential viewers forego their right to watch films of their choice. By Ellwest's own admission, its customers must enter the establishment from a busy public street. We presume that those who enter are just as easily identified at the time they enter as they would be while in an open booth watching a movie. There is no basis to conclude that potential viewers are more intimidated by the prospect of being identified once inside than they are by that of being seen upon entering the arcade in the first place. If that is Ellwest's contention, the record should so demonstrate. Some factual support is required before a federal court will pass upon the constitutionality of a law that allegedly chills the exercise of first amendment rights. See Laird v. Tatum, 408 U.S. 1,12-16,92 S.Ct. 2318,2325-27, 33 L.Ed.2d 154 (1972). Ellwest's major concern is not with its patrons' first amendment rights to view the films, but rather with an alleged infringement of their right to privacy. The essence of the argument is that the customers have a constitutional right to fondle themselves; therefore, argues Ellwest, the City may not constitutionally require that the theater open the booths and thus chill the patrons' exercise of the right to masturbate. We assume with a fair degree of confidence that the activities Ellwest seeks to protect may be enjoyed without governmental interference in the sanctity of the customers' homes. Ellwest must establish, however, that there is a constitutional right to engage in such activities in a public place. That issue has been decided against Ellwest in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-67, 93 S.Ct. 2628, 2639-40, 37 L.Ed.2d 446 (1973). The Court there held that the constitutionally protected right to watch obscene movies in the privacy of one's own home did not import a similar right to watch the same movies in a public place. The court reasoned that while *1248 viewing obscene movies in one's home, Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969), and engaging in sexual intercourse in the marital bedroom, Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965), are both protected by the constitutional right to privacy, that protection ceases when the locus of the conduct shifts to a place of public accommodation such as a theater. The Court "declined to equate the privacy of the home relied on in Stanley with a 'zone' of 'privacy' that follows a distributor or a consumer ... wherever he goes. The idea of a 'privacy right and a place of public accommodation are, in this context, mutually exclusive." Paris Adult Theatre, supra, 413 U.S. at 66, 93 S.Ct. at 2639 (citations omitted). In defining the limits of the constitutional right to privacy, Copr. © West 2003 No Claim to Orig. U.S. Govt. Works PageS the Court invoked Justice Cardozo: "(o)ur prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included 'only personal rights that can be deemed "fundamental" or" implicit in the concept of ordered liberty."'" Id. at 65,93 S.Ct. at 2639, quoting, inter alia, Palko v. Connecticut, 302 U.S. 319,325,58 S.Ct. 149,151,82 L.Ed. 288 (1937). (5) While we certainly agree with Ellwest that its customers have a constitutional right to view its films, we cannot agree that the interest in simultaneously engaging in sexual activity is similarly protected. We decline to hold that the "right" to unobserved masturbation in a public theater is "fundamental" or "implicit in the concept of ordered liberty." (6)(7) Ellwest also cites a number of cases which deal not with the right to privacy but with the fourth amendment right to be free from unreasonable searches and seizures. See, e.g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Ellwest seems to equate the ordinance requiring open video booths with police use of peep holes in public toilets. See, e.g., People v. Triggs, 8 Cal.3d 884,106 Cal.Rptr. 408, 506 P.2d 232 (1973); Bielicki v. Superior Court, 57 Cal.2d 602,21 CaLRptr. 552,371 P.2d 288 (1962); 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment s 2.4(c) (1978). The record here does not indicate, however, either the nature or extent of police surveillance of open booths in arcades that have complied with the ordinance. Moreover, any threat of "dragnet searches" or "spying" is not a threat to Ellwest's fourth amendment interests, but to the interests of its patrons. "Fourth amendment rights are personal rights ... which may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-25, 58 L.Ed.2d 387 (1978), quoting Alderman v. United States, 394 U.S. 165,174,89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). See also United States v. Payner, 447 U.S. 727,731-37,100 S.Ct. 2439, 2443-47,65 L.Ed.2d 468 (1980). Thus Ellwest has no standing to assert the fourth amendment rights of its customers. Such a claim is premature in any event, in the absence of a showing that such searches have indeed been conducted. [FN4] Accordingly, we hold that the open booth ordinance is not facially unconstitutional. The judgment of the district court is affirmed. 681 F.2d 1243 END OF DOCUMENT FN4. On the prematurity point, see the discussion in California Bankers Ass'n v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (passim). Cf. Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972) (mere fear of future detrimental action by government insufficient to state justiciable claim under first amendment). Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 25 Pagel HOS.Ct. 596 107 L.Ed.2d 603, 58 USLW 4079 (Cite as: 493 U.S. 215, 110 S.Ct 596) Supreme Court of the United States FW/PBS, INC., dba Paris Adult Bookstore II, et al., Petitioners v. CITY OF DALLAS et al. M.J.R., INC., et al., Petitioners v. CITY OF DALLAS. Calvin BERRY, III, et al., Petitioners v. CITY OF DALLAS et al. Nos. 87-2012,87-2051 and 88-49. Argued Oct. 4, 1989. Decided Jan. 9, 1990. Petitioners involved with adult entertainment industry adversely affected by zoning and licensing ordinance, sued for declaratory and injunctive relief. The United States District Court for the Northern District of Texas, Jerry Buchmeyer, J., 648 F.Supp. 1061, held ordinance was not violative of First or Fourth Amendments, and petitioners appealed. The Court of Appeals for the Fifth Circuit, 837 F.2d 1298, affirmed, and certiorari was granted. The Supreme Court, Justice O'Connor, held that: (1) petitioners could challenge facial validity of ordinance, on First Amendment prior restraint grounds; (2) ordinance's failure to provide reasonable period during which decision whether to issue license must be made, and to provide avenue for prompt judicial review of adverse decision, rendered licensing requirements unconstitutional as enforced against petitioners engaged in First Amendment activity; (3) petitioners lacked standing to challenge ordinance provisions barring persons residing with individuals whose licenses to conduct sexually oriented businesses had been denied or revoked, or prohibiting applicants for such licenses who were convicted of specified offenses or whose spouses were so convicted, from obtaining such licenses; (4) petitioners lacked standing to challenge ordinance denying licenses to applicants who were convicted of enumerated crimes; (5) city council did not violate due process rights of motel owners by declaring that motels renting rooms for less than ten hours were "sexually oriented businesses" subject to ordinance; and (6) determination that such motels were "sexually oriented businesses" did not impinge upon the freedom of association rights of occupants of rooms. Affirmed in part, reversed in part, vacated in part, and remanded. Justice Brennan concurred in judgment and filed opinion, in which Justices Marshall and Blackmun joined. Justice White concurred in part and dissented in part and filed opinion, in which the Chief Justice joined. Justice Stevens concurred in part and dissented in part and filed opinion. Justice Scalia concurred in part and dissented in part and filed opinion. Opinion on remand, 896 F.2d 864. West Headnotes [1] Constitutional Law €^42.2(1) 92k42.2(l) Most Cited Cases Petitioners associated with sexually oriented businesses could raise facial constitutional challenge to city licensing ordinance applicable to such businesses, on First Amendment prior restraint grounds; ordinance vested "unbridled discretion" in licensor, as required for facial challenge, as there was no time limit during which licensing authority was required to act. (Per Justice O'Connor, with two Justices concurring and three Justices concurring in judgment). U.S.C.A. Const. Amend. 1. [2] Constitutional Law €=>42.2(1) 92k42.2(l) Most Cited Cases Petitioners associated with sexually oriented businesses had valid First Amendment interest in challenging ordinance requiring licensing of such businesses, even though ordinance applied to some businesses that apparently were not protected by First Amendment, such as escort agencies and sexual encounter centers; ordinance largely targeted businesses purveying sexual explicit speech, which were conceded to be protected by First Amendment. (Per Justice O'Connor, with two Justices concurring and three Justices concurring in judgment). U.S.C.A. Const.Amend. 1. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 [3] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases Ordinance requiring license in connection with the operation of sexually oriented businesses, as enforced, was unconstitutional prior restraint on licensees' First Amendment rights; ordinance lacked necessary limitation on period of time during which licensor must make decision whether to issue license, during which status quo was maintained, and ordinance did not provide possibility for prompt judicial review in the event license was erroneously denied. (Per Justice O'Connor, with two Justices concurring and three Justices concurring in judgment). U.S.C.A. Const. Amend. 1. Petitioners involved with sexually oriented businesses lacked standing to challenge city ordinance which barred applicants who had been convicted of certain enumerated crimes as well as those whose spouses had been convicted of same crimes from obtaining license to operate such businesses, as no petitioner was member of affected class; although one petitioner alleged he had been convicted for enumerated crime and also that his wife was interested in opening sexually oriented business, city council had deleted by amendment crime of which husband was convicted from those enumerated under ordinance. [9] Municipal Corporations C=>121 268kl21 Most Cited Cases [4] Federal Courts 170Bk461 Most Cited Cases Although neither party had raised issue of standing, and courts below had not passed on it, Supreme Court was required to consider whether owners of sexually oriented businesses had standing to challenge city ordinance regulating their activities; federal courts are under an independent obligation to examine their own jurisdiction. [5] Federal Civil Procedure €=>103.5 170Akl03.5 Most Cited Cases Petitioners involved with sexually oriented businesses lacked standing to challenge provision of city ordinance prohibiting person convicted of any of certain enumerated crimes from obtaining license to conduct such business; record showed only one party with potentially disabling criminal record, and record failed to indicate that five-year period following last conviction or release from confinement, whichever was later, during which prohibition was in effect, had not elapsed. [10] Municipal Corporations 268kl21 Most Cited Cases Standing to sue cannot be inferred argumentatively from averments in pleadings but must affirmatively appear in record. [6] Federal Civil Procedure €=>103.5 170Akl03.5 Most Cited Cases Party seeking exercise of jurisdiction in its favor has burden to allege facts demonstrating it is proper party to invoke judicial resolution of dispute. [7] Municipal Corporations 268kl21 Most Cited Cases Petitioners involved with sexual oriented businesses lacked standing to challenge municipal ordinance prohibiting issuance of license to conduct such businesses to applicant who has resided with individual whose license application has been denied or revoked within preceding 1 2 months; record did not reveal any petitioner who was living with individual whose license was denied or revoked during applicable period. (8] Municipal Corporations €>=?121 268kl21 Most Cited Cases Requirement that evidence of standing to sue be contained in record was not satisfied when attorney for city in suit challenging ordinance denying persons convicted of crime license to operate sexually oriented businesses stated in oral argument that there were one or two petitioners that had their license denied based on criminal conviction. [11] Municipal Corporations €=5121 268kl21 Most Cited Cases Standing to challenge city ordinance prohibiting persons convicted of certain crimes from obtaining license to conduct sexually oriented businesses could not be established by city's affidavit stating that two licenses were revoked on grounds of prior conviction; affidavit could not be relied on because it was first introduced in Supreme Court proceedings and was not part of record of proceedings below. [12] Constitutional Law €=^296(1) 92k296(l) Most Cited Cases The due process rights of motel owners were not violated when city adopted ordinance declaring that motels renting rooms for less than ten hours were Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 3 sexually oriented businesses subject to regulation under ordinance covering such businesses, based only upon 1977 study by another city which allegedly considered only cursorily the effect of "adult" motels on surrounding neighborhoods; reasonableness of legislative judgment that motels offering short room rental periods fostered prostitution and that such type of criminal activity was what ordinance sought to suppress, combined with the study, was adequate to support determination that motels in question should be included in licensing scheme. U.S.C.A. ConstAmend. 14. [13] Constitutional 92k91 Most Cited Cases Assuming that motel owners had standing to claim that ordinance deeming motels permitting rental of rooms for less than ten hours as sexually oriented businesses and imposing ordinance regulations on such motels on grounds that ordinance violated their customers' constitutional right to freedom of association, such rights were limited to "traditional personal bonds" which have "played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs," and ordinance would not have discernible effect on such rights. U.S.C.A. Const. Amend. 1. **598 *215 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, 287, 50 L.Ed. 499. Respondent city of Dallas adopted a comprehensive ordinance regulating "sexually oriented businesses," which are defined to include "adult" arcades, bookstores, video stores, cabarets, motels, and theaters, as well as escort agencies, nude model studios, and sexual encounter centers. Among other things, the ordinance requires that such businesses be licensed and includes civil disability provisions prohibiting certain individuals from obtaining licenses. Three groups of individuals and businesses involved in the adult entertainment industry filed separate suits challenging the ordinance on numerous grounds and seeking injunctive and declaratory relief. The District Court upheld the bulk of the ordinance but struck down several subsections, and the city subsequently amended the ordinance in conformity with the court's judgment. The Court of Appeals affirmed, holding, inter alia, that the ordinance's licensing scheme did not violate the First Amendment despite its failure to provide the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and that its civil disability provisions and its provision requiring **S99 licensing for "adult motel owners" renting rooms for fewer than 10 hours were constitutional. Held: The judgment is affirmed in part, reversed in part, and vacated in part, and the cases are remanded. 837F.2d 1298, (CA5 1988), affirmed in part, reversed in part, vacated in part, and remanded. Justice O'CONNOR delivered the opinion of the Court with respect to Parts III and IV, concluding that: 1. No petitioner has shown standing to challenge (1) the ordinance's provision which prohibits the licensing of an applicant who has resided with an individual whose license application has been denied or revoked, or (2) the civil disability provisions, which disable for specified periods those who have been convicted of certain enumerated crimes, as well as those whose spouses have been so convicted. The record does not reveal *216 that any petitioner was living with an individual whose application was denied or whose license was revoked. Moreover, although the record reveals one individual who potentially could be disabled under the spousal conviction provision, that person is not herself a license applicant or a party to this action. Even if she did have standing, however, her claim would now be moot, since the city council deleted from the statutory list the crimes of which her husband was convicted after the District Court ruled that the inclusion of such convictions was unconstitutional. Furthermore, although one party stated in an affidavit that he had been convicted of three enumerated misdemeanors, he lacked standing, since he failed to state when he had been convicted of the last misdemeanor or the date of his release from confinement and, therefore, has not shown that he is still within the ordinance's disability period. This Court cannot rely on the city's representations at oral argument that one or two of the petitioners had been denied licenses based on convictions, since the necessary factual predicate must be gleaned from the record below. Similarly, the city's affidavit indicating that two licenses were revoked for convictions is unavailing, since the affidavit was first introduced in this Court and is not part of the record, and, in any event, fails to identify the individuals whose licenses were revoked. Because the courts below lacked jurisdiction to adjudicate petitioners' claims, the Court of Appeals' judgment with respect to the disability provisions is vacated, and the court is directed to Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 dismiss that portion of the suit. Pp. 607-610. 2. The ordinance's provision requiring licensing for motels that rent rooms for fewer than 10 hours is not unconstitutional. The motel owner petitioners' contention that the city has violated the Due Process Clause by failing to produce adequate support for its supposition that renting rooms for fewer than 10 hours results in increased crime or other secondary effects is rejected. As the Court of Appeals recognized, it was reasonable to believe that shorter rental time periods indicate that the motels foster prostitution, and that this type of criminal activity is what the ordinance seeks to suppress. The reasonableness of the legislative judgment, along with the Los Angeles study of the effect of adult motels on surrounding neighborhoods that was before the city council when it passed the ordinance, provided sufficient support for the limitation. Also rejected is the assertion that the 10-hour limitation places an unconstitutional burden on the right to freedom of association recognized in Roberts v. United States Jaycees, 468 U.S. 609, 618, 104S.Ct. 3244,3249,82L.Ed.2d462. Evenassuming that the motel owners have standing to assert the associational rights of motel patrons, limiting rentals to 10 hours will not have any discernible effect on the sorts of traditional personal bonds considered in Roberts: those that play a critical role in the Nation's culture and traditions by cultivating and transmitting shared ideals and beliefs. This Court *217 will not consider the motel owners' privacy and commercial speech challenges, since those issues were **600 not pressed or passed upon below. Pp. 610-611. Justice O'CONNOR, joined by Justice STEVENS and Justice KENNEDY, concluded in Part II that the ordinance's licensing scheme violates the First Amendment, since it constitutes a prior restraint upon protected expression that fails to provide adequate procedural safeguards as required byFreedman, supra. Pp. 603-607. (a) Petitioners may raise a facial challenge to the licensing scheme. Such challenges are permitted in the First Amendment context where the scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad. Petitioners argue that the licensing scheme fails to set a time limit within which the licensing authority must act. Since Freedman, supra, 380 U.S. at 56-57, 85 S.Ct., at 737-38, held that such a failure is a species of unbridled discretion, every application of the ordinance creates an impermissible risk of suppression of ideas. Moreover, the businesses challenging the licensing scheme have a valid First Amendment interest. Although the ordinance applies to some businesses that apparently are not protected by the First Amendment—e.g., escort agencies and sexual encounter centers—it largely targets businesses purveying sexually explicit speech which the city concedes for purposes of this litigation are protected by the First Amendment. While the city has asserted that it requires every business—regardless of whether it engages in First Amendment-protected speech-to obtain a certificate of occupancy when it moves into a new location or the use of the structure changes, the challenged ordinance nevertheless is more onerous with respect to sexually oriented businesses, which are required to submit to inspections-for example, when then- ownership changes or when they apply for the annual renewal of their permits-whether or not they have moved or the use of their structures has changed. Pp. 603-604. (b) Freedman, supra, at 58-60, 85 S.Ct., at 738-40, determined that the following procedural safeguards were necessary to ensure expeditious decisionmaking by a motion picture censorship board: (1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. Like a censorship system, a licensing scheme creates the possibility that constitutionally protected speech will be suppressed where there are inadequate procedural safeguards to ensure prompt issuance of the license. Thus, the license for a First Amendment-protected business must be issued in a reasonable period of time, and, accordingly, the first two Freedman safeguards are essential. Here, although *218 the Dallas ordinance requires the chief of police to approve the issuance of a license within 30 days after receipt of an application, it also conditions such issuance upon approval by other municipal inspection agencies without setting forth time limits within which those inspections must occur. Since the ordinance therefore fails to provide an effective time limitation on the licensing decision, and since it also fails to provide an avenue for prompt judicial review so as to minimize suppression of speech in the event of a license denial, its licensing requirement is unconstitutional insofar as it is enforced against those businesses engaged in First Amendment activity, as determined by the court on remand. However, since the licensing scheme at issue is significantly different from the censorship system examined in Freedman, it does not present the grave dangers of such a system, and the First Amendment does not require that it contain the third Freedman safeguard. Unlike the Freedman censor, Dallas does not engage in presumptively invalid direct censorship of particular expressive material, but simply performs the ministerial Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS action of reviewing the general qualifications of each license applicant. It therefore need not be required to carry the burden of going **601 to court or of there justifying a decision to suppress speech. Moreover, unlike the motion picture distributors considered in Freedman—who were likely to be deterred from challenging the decision to suppress a particular movie if the burdens of going to court and of proof were not placed on the censor-the license applicants under the Dallas scheme have every incentive to pursue a license denial through court, since the license is the key to their obtaining and maintaining a business. Rileyv. National Federation of Blind ofN.C., Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), is not dispositive of this litigation, since, although it struck down a licensing scheme for failing to provide adequate procedural safeguards, it did not address the proper scope of procedural safeguards with respect to such a scheme. Since the Dallas ordinance summarily states that its terms and provisions are severable, the Court of Appeals must, on remand, determine to what extent the licensing requirement is severable. Pp. 604-607. Justice BRENNAN, joined by Justice MARSHALL and Justice BLACKMUN, although agreeing that the ordinance's licensing scheme is invalid as to any First Amendment-protected business under the Freedman doctrine, concluded that Riley mandates application of all three of the Freedman procedural safeguards, not just two of them. Riley v. National Federation of Blind ofN.C,, Inc., 487 U.S. 781, 802, 108 S.Ct., at 2680, applied Freedman to invalidate a professional licensing scheme with respect to charity fundraisers who were engaged in First Amendment-protected activity, ruling that the scheme must require that the licensor~z.e., the State, not the would-be fundraiser- either issue a license within a specified brief period or go to court. The principal opinion's grounds for declining *219 to require the third Freedman safeguard-that the Dallas scheme does not require an administrator to engage in the presumptively invalid task of passing judgment on whether the content of particular speech is protected, and that it licenses entire businesses, not just individual films, so that applicants will not be inclined to abandon their interests—do not distinguish the present litigation from Riley, where the licensor was not required to distinguish between protected and unprotected speech, and where the fundraisers had their entire livelihoods at stake. Moreover, the danger posed by a license that prevents a speaker from speaking at all is not derived from the basis on which the license was purportedly denied, but is the unlawful stifling of speech that results. Thus, there are no relevant differences between the fundraisers in Riley and the petitioners here, and, in the interest of protecting speech, the burdens of initiating judicial proceedings and of proof must be borne by the city. Pp. 611 -613. O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and IV, in which REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, and KENNEDY, JJ., joined, the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Part II, in which STEVENS and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 611. WHITE, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C.J., joined, post, p. 614. STEVENS, J.,post, p. 617, and SCALIA, J.,post, p. 617, filed opinions concurring in part and dissenting in part. John H. Weston argued the cause for petitioners in all cases. With him on the briefs for petitioners in No. 87-2051 were G. Randall Garrou, Cathy E. Crosson, andRichardL. Wilson. Arthur M. Schwartz filed briefs for petitioners in No. 87-2012. Frank P. Hernandez filed a brief for petitioners hi No. 88-49. Analeslie Muncy argued the cause for respondents in all cases. With her on the brief were Kenneth C. Dippel and Thomas P. Brandt.-^ t Briefs of amid curiae urging reversal were filed for the American Booksellers Association, Inc., et al. by Michael A. Bamberger; and forPHE, Inc., by Bruce J. Ennis, Jr., and Mark D. Schneider. Briefs of amid curiae urging affirmance were filed for the American Family Association, Inc., by Peggy M. Coleman; for the Children's Legal Foundation by Alan E. Sears; for the National Institute of Municipal Law Officers by William I. Thornton, Jr., FrankB. Gummey III, and William H. Taube; and for the U. S. Conference of Mayors et al by Benna Ruth Solomon and Peter Buscemi. Bruce A. Taylor filed a brief for Citizens for Decency Through Law, Inc., as amicus curiae. *220 Justice O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Part II, in which Justice STEVENS and Justice KENNEDY join. These cases call upon us to decide whether a licensing Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 scheme in a comprehensive city **602 ordinance regulating sexually oriented businesses is a prior restraint that fails to provide adequate procedural safeguards as required by Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). We must also decide whether any petitioner has standing to address the ordinance's civil disability provisions, whether the city has sufficiently justified its requirement that motels renting rooms for fewer than 10 hours be covered by the ordinance, and whether the ordinance impermissibly infringes on the right to freedom of association. As this litigation comes to us, no issue is presented with respect to whether the books, videos, materials, or entertainment available through sexually oriented businesses are obscene pornographic materials. I On June 18,1986, the city council of the city of Dallas unanimously adopted Ordinance No. 19196 regulating sexually oriented businesses, which was aimed at eradicating the secondary effects of crime and urban blight. The ordinance, as amended, defines a "sexually oriented business" as "an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center." Dallas City Code, ch. 41 A, Sexually Oriented Businesses § 41A-2(19) (1986). The ordinance regulates sexually oriented businesses through a scheme incorporating zoning, licensing, *221 and inspections. The ordinance also includes a civil disability provision, which prohibits individuals convicted of certain crimes from obtaining a license to operate a sexually oriented business for a specified period of years. Three separate suits were filed challenging the ordinance on numerous grounds and seeking preliminary and permanent injunctive relief as well as declaratory relief. Suits were brought by the following groups of individuals and businesses: those involved in selling, exhibiting, or distributing publications or video or motion picture films; adult cabarets or establishments providing live nude dancing or films, motion pictures, videocassettes, slides, or other photographic reproductions depicting sexual activities and anatomy specified in the ordinance; and adult motel owners. Following expedited discovery, petitioners' constitutional claims were resolved through cross-motions for summary judgment. After a hearing, the District Court upheld the bulk of the ordinance, striking only four subsections. See Dumas v. Dallas, 648 F.Supp. 1061 (ND Tex. 1986). The District Court struck two subsections, §§ 41 A-5(a)(8) and 41A-5(c), on the ground that they vested overbroad discretion in the chief of police, contrary to our holding in Shuttlesworthv. Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 938-939, 22 L.Ed.2d 162 (1969). See 648 F.Supp., at 1072-1073. The District Court also struck the provision that imposed a civil disability merely on the basis of an indictment or information, reasoning that there were less restrictive alternatives to achieve the city's goals. See id., at 1075 (citing United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). Finally, the District Court held that five enumerated crimes from the list of those creating civil disability were unconstitutional because they were not sufficiently related to the purpose of the ordinance. See 648 F.Supp., at 1074 (striking bribery, robbery, kidnaping, organized criminal activity, and violations of controlled substances Acts). The city of Dallas subsequently *222 amended the ordinance in conformity with the District Court's judgment. The Court of Appeals for the Fifth Circuit affirmed. 837 F.2d 1298 (1988). Viewing the ordinance as a content-neutral time, place, and manner regulation under Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Court of Appeals upheld the ordinance against petitioners' facial attack on the ground that it is " 'designed to serve a substantial government interest' " and allowed for " 'reasonable alternative avenues of communication.' " **603837 F.2d, at 1303 (quoting Renton, supra, at 47, 106 S.Ct., at 928). The Court of Appeals further concluded that the licensing scheme's failure to provide the procedural safeguards set forth in Freedman v. Maryland, supra, withstood constitutional challenge, because such procedures are less important when regulating "the conduct of an ongoing commercial enterprise." 837 F.2d, at 1303. Additionally, the Court of Appeals upheld the provision of the ordinance providing that motel owners renting rooms for fewer than 10 hours were "adult motel owners" and, as such, were required to obtain a license under the ordinance. See § § 41 A-2(4), 41 A-18. The motel owners attacked the provision on the ground that the city had made no finding that adult motels engendered the evils the city was attempting to redress. The Court of Appeals concluded that the 10-hour limitation was based on the reasonable supposition that short rental periods facilitate prostitution, one of the secondary effects the city was attempting to remedy. See837F.2d, at 1304. Finally, the Court of Appeals upheld the civil disability provisions, as modified by the District Court, on the ground that the relationship between "the offense and the evil to be regulated is direct and substantial." Id., at 1305. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? We granted petitioners' application for a stay of the mandate except for the holding that the provisions of the ordinance regulating the location of sexually oriented businesses do not violate the *223Federal Constitution, 485 U.S. 1042, 108 S.Ct. 1605, 99 L.Ed.2d 919 (1988), and granted certiorari, 489 U.S. 1051, 109 S.Ct. 1309, 103 L.Ed.2d 578 (1989). We now reverse in part and affirm in part. II We granted certiorari on the issue whether the licensing scheme is an unconstitutional prior restraint that fails to provide adequate procedural safeguards as required by Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Petitioners involved in the adult entertainment industry and adult cabarets argue that the licensing scheme fails to set a time limit within which the licensing authority must issue a license and, therefore, creates the likelihood of arbitrary denials and the concomitant suppression of speech. Because we conclude that the city's licensing scheme lacks adequate procedural safeguards, we do not reach the issue decided by the Court of Appeals whether the ordinance is properly viewed as a content-neutral time, place, and manner restriction aimed at secondary effects arising out of the sexually oriented businesses. Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 562, 95 S.Ct. 1239, 1248,43 L.Ed.2d 448 (1975). [1][2] We note at the outset that petitioners raise a facial challenge to the licensing scheme. Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, and n. 15, 104 S.Ct. 2118, 2125 n. 15, 80 L.Ed.2d 772 (1984). InFreedman, we held that the failure to place limitations on the time within which a censorship board decisionmaker must make a determination of obscenity is a species of unbridled discretion. See Freedman, supra. 380 U.S., at 56-57,85 S.Ct., at 737-738 (failure to confine time within which censor must make decision "contains the same vice as a statute delegating excessive administrative discretion"). Thus, where a scheme creates a "[rjisk of delay," 380 U.S., at 55, 85 S.Ct., at 737, *224 such that "every application of the statute create[s] an impermissible risk of suppression of ideas," Taxpayers for Vincent, supra, 466 U.S., at 798, n. 15, 104 S.Ct. at 2125 n. **604 15, we have permitted parties to bring facial challenges. The businesses regulated by the city s licensing scheme include adult arcades (defined as places in which motion pictures are shown to five or fewer individuals at a time, see § 41A-2(1)), adult bookstores or adult video stores, adult cabarets, adult motels, adult motion picture theaters, adult theaters, escort agencies, nude model studios, and sexual encounter centers, §§ 41A-2(19) and 41A-3. Although the ordinance applies to some businesses that apparently are not protected by the First Amendment, e.g., escort agencies and sexual encounter centers, it largely targets businesses purveying sexually explicit speech which the city concedes for purposes of these cases are protected by the First Amendment. Cf. Smith v. California, 361 U.S. 147,150,80 S.Ct. 215,217,4 L.Ed.2d 205 (1959) (bookstores); Southeastern Promotions, Ltd. v. Conrad, supra (live theater performances); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440,49 L.Ed.2d 310 (1976) (motion picture theaters); Schadv. MountEphraim, 452 U.S. 61,101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (nude dancing). As Justice SCALIA acknowledges, post, at 624, the city does not argue that the businesses targeted are engaged in purveying obscenity which is unprotected by the First Amendment. See Brief for Respondents 19,20, and n. 8 ("[T]he city is not arguing that the ordinance does not raise First Amendment concerns.... [T]he right to sell this material is a constitutionally protected right..."). See also Miller v. California, 413 U.S. 15, 23-24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Nor does the city rely upon Ginzburgv. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), or contend that those businesses governed by the ordinance are engaged in pandering. It is this Court's practice to decline to review those issues neither pressed nor passed upon below. See Youakim v. Miller, 425 U.S. 231, 234, 96 S.Ct. 1399, 1401-02, 47 L.Ed.2d 701 (1976) (per curiam). *225 The city asserted at oral argument that it requires every business— without regard to whether it engages in First Amendment-protected speech—to obtain a certificate of occupancy when it moves into a new location or the use of the structure changes. Tr. of Oral Arg. 49; see also App. 42, Dallas CityCode § 51-1.104 (1988) (certificate of occupancy required where there is new construction or before occupancy if there is a change in use). Under the challenged ordinance, however, inspections are required for sexually oriented businesses whether or not the business has moved into a new structure and whether or not the use of the structure has changed. Therefore, even assuming the correctness of the city's representation of its "general" inspection scheme, the scheme involved here is more Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS onerous with respect to sexually oriented businesses than with respect to the vast majority of other businesses. For example, inspections are required whenever ownership of a sexually oriented business changes, and when the business applies for the annual renewal of its permit. We, therefore, hold, as a threshold matter, that petitioners may raise a facial challenge to the licensing scheme, and that as the suit comes to us, the businesses challenging the scheme have a valid First Amendment interest. B [3] While "[pjrior restraints are not unconstitutional perse... [a]ny system of prior restraint... comes to this Court bearing a heavy presumption against its constitutional validity." Southeastern Promotions, Ltd v. Conrad, supra, 420 U.S., at 558, 95 S.Ct., at 1246. See, e.g., Lovellv. Griffin, 303 U.S. 444, 451-452, 58 S.Ct. 666, 668-669, 82 L.Ed. 949 (1938); CantweU v. Connecticut, 310 U.S. 296, 306-307, 60 S.Ct. 900, 904-905, 84 L.Ed. 1213 (1940); Cox v. New Hampshire, 312 U.S. 569,574-575,61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941); Shuttlesworth v. Birmingham, 394 U.S., at 150-151, 89 S.Ct., at 938-939. Our cases addressing prior restraints have identified two evils that will not be tolerated **605 in such schemes. First, a scheme that places "unbridled discretion in the hands of a government official or agency constitutes a prior restraint *226 and may result in censorship." Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750,757,108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). See Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 328,95 L.Ed. 280 (1951); Kunzv. New York, 340 U.S. 290,71 S.Ct. 312, 95 L.Ed. 280 (1951); Staub v. City ofBaxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Shuttlesworth v. Birmingham, supra; Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). " 'It is settled by a long line of recent decisions of this Court that an ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official~as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.' " Shuttlesworth, supra, 394 U.S., at 151, 89 S.Ct., at 938-39 (quoting Staub, supra, 355 U.S., at 322, 78 S.Ct. at 282). Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible. Freedman, supra, 380 U.S., at 59,85 S.Ct, at 739; Vance v. Universal Amusement Co., 445 U.S. 308, 316, 100 S.Ct. 1156, 1161-62, 63 L.Ed.2d 413 (1980) (striking statute on ground that it restrained speech for an "indefinite duration"). In Freedman, we addressed a motion picture censorship system that failed to provide for adequate procedural safeguards to ensure against unlimited suppression of constitutionally protected speech. 380 U.S., at 57, 85 S.Ct, at 738. Like a censorship system, a licensing scheme creates the possibility that constitutionally protected speech will be suppressed where there are inadequate procedural safeguards to ensure prompt issuance of the license. In Riley v. National Federation ofBlindofN.C., Inc., 487 U.S. 781, 108 S.Ct 2667, 101 L.Ed.2d 669 (1988), this Court held that a licensing scheme failing to provide for definite limitations on the time within which the licensor must issue the license was constitutionally unsound, because the "delay compel[led] the speaker's silence." Id., at 802,108 S.Ct., at 2680. The failure to confine the time within which the licensor must make a decision "contains the same vice as a statute delegating *227 excessive administrative discretion," Freedman, supra, 380 U.S., at 56-57, 85 S.Ct, at 737-738. 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 **606 on the time within which the city will inspect the business and thereby make the business eligible for the sexually oriented business license. Thus, the city's regulatory scheme allows indefinite postponement of the issuance of a license. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 9 In Freedman, we determined that the following three procedural safeguards were necessary to ensure expeditious decisionmaking by the motion picture censorship board: (1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. Freedman, supra, at 58-60, 85 S.Ct, at 738-740. *228 Although we struck the licensing provision in Riley v. National Federation of Blind ofN.C., Inc., supra, on the ground that it did not provide adequate procedural safeguards, we did not address the proper scope of procedural safeguards with respect to a licensing scheme. Because the licensing scheme at issue in these cases does not present the grave "dangers of a censorship system," Freedman, supra, at 58, 85 S.Ct., at 738-39, we conclude that the full procedural protections set forth in Freedman are not required. 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. See Freedman, supra, at 51, 85 S.Ct., at 734. See also Shuttlesworth, 394 U.S., at 155, n. 4,89 S.Ct., at 941, n. 4 (content- neutral time, place, and manner regulation must provide for "expeditious judicial review"); National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977). The Court in Freedman also required the censor to go to court and to bear the burden in court of justifying the denial. "Without these safeguards, it may prove too burdensome to seek review of the censor's determination. Particularly in the case of motion pictures, it may take very little to deter exhibition in a given locality. The exhibitor's stake in any one picture may be insufficient to warrant a protracted and onerous course of litigation. The distributor, on the other hand, may be equally unwilling to accept the burdens and delays of litigation in a particular area when, without such difficulties, he can freely exhibit his film in most of the rest of the country...." 380 U.S., at 59, 85 S.Ct., at 739. *229 Moreover, a censorship system creates special concerns forthe protection of speech, because "the risks of freewheeling censorship are formidable." Southeastern Promotions, 420 U.S., at 559,95 S.Ct., at 1246- 47. As discussed supra, the Dallas scheme does not provide for an effective limitation on the time within which the licensor's decision must be made. It also fails to provide an avenue for prompt judicial review so as to minimize suppression of the speech in the event of a license denial. We therefore hold that the failure to provide these essential safeguards renders the ordinance's licensing requirement unconstitutional insofar as it is enforced against those businesses engaged in First Amendment activity, as determined by the court on remand. The Court also required in Freedman that the censor bear the burden of going to court in order to suppress the speech and the burden of proof once in court. The licensing scheme we examine today is significantly different from the censorship scheme examined in Freedman. In Freedman, the censor engaged in direct censorship of particular expressive **607 material. Under our First Amendment jurisprudence, such regulation of speech is presumptively invalid and, therefore, the censor in Freedman was required to carry the burden of going to court if the speech was to be suppressed and of justifying its decision once in court. Under the Dallas ordinance, the city does not exercise discretion by passing judgment on the content of any protected speech. Rather, the city reviews the general qualifications of each license applicant, a ministerial action that is not presumptively invalid. The Court in Freedman also placed the burdens on the censor, because otherwise the motion picture distributor was likely to be deterred from challenging the decision to suppress the speech and, therefore, the censor's decision to suppress was tantamount to complete suppression of the speech. The license applicants under the Dallas scheme have much more at stake than did the motion picture distributor considered in Freedman, where only one film was censored. Because the *230 license is the key to the applicant's obtaining and maintaining a business, there is every incentive for the applicant to pursue a license denial through court. Because of these differences, we conclude that the First Amendment does not require that the city bear the burden of going to court to effect the denial of a license application or that it bear the burden of proof once in court. Limitation on the time within which the licensor must issue the license as well as the availability of prompt judicial review satisfy the "principle that the freedoms of expression must be ringed about with adequate bulwarks." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963). Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 10 Finally, we note that § 5 of Ordinance No. 19196 summarily states that "[t]he terms and provisions of this ordinance are severable, and are governed by Section 1-4 of CHAPTER 1 of the Dallas City Code, as amended." We therefore remand to the Court of Appeals for further determination whether and to what extent the licensing scheme is severable. Cf. Lakewoodv. Plain Dealer Publishing Co., 486 U.S., at 772,108 S.Ct, at 2152 (remanding for determination of severability). Ill [4] We do not reach the merits of the adult entertainment and adult cabaret petitioners' challenges to the civil disability provision, § 41A-5(a)(10),aridthe provision disabling individuals residing with those whose licenses have been denied or revoked, § 41A-5(a)(5), because petitioners have failed to show they have standing to challenge them. See Brief for Petitioners in No. 87- 2051, pp. 22-40, 44; Brief for Petitioners in No. 87-2012, pp. 12-20. Neither the District Court nor the Court of Appeals determined whether petitioners had standing to challenge any particular provision of the ordinance. Although neither side raises the issue here, we are required to address the issue even if the courts below have not passed on it, see Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843,1848-49,23 L.Ed.2d404 (1969), and even if the parties fail to raise the issue before *231 us. The federal courts are under an independent obligation to examine their own jurisdiction, and standing "is perhaps the most important of [the jurisdictional] doctrines." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). "[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244 [55 S.Ct. 162, 165, 79 L.Ed. 338] (1934). SeeJuidicev. Vail, 430 U.S. 327,331-332 [97 S.Ct. 1211,1215-1216,51L.Ed.2d376](1977)(standing). 'And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it.' " **6Q$Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). [5][6] It is a long-settled principle that standing cannot be "inferred argumentatively from averments in the pleadings," Grace v. American Central Ins. Co., 109 U.S. 278,284, 3 S.Ct. 207, 210, 27 L.Ed. 932 (1883), but rather "must affirmatively appear in the record." MansfieldC. &L.M.R. Co. v. Swan, 111 U.S. 379,382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884). See King Bridge Co. v. Otoe County, 120 U.S. 225, 226, 7 S.Ct. 552,552,30 L.Ed. 623 (1887) (facts supporting Article III jurisdiction must "appea[r] affirmatively from the record"). And it is the burden of the "party who seeks the exercise of jurisdiction in his favor," McNittt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), "clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Worth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975). Thus, petitioners in this case must "allege ... facts essential to show jurisdiction. If [they] fai[l] to make the necessary allegations, [they have] no standing." McNutt, supra, 298 U.S., at 189, 56 S.Ct., at 785. The ordinance challenged here prohibits the issuance of a license to an applicant who has resided with an individual whose license application has been denied or revoked within *232 the preceding 12 months. [FN1] The ordinance also has a civil disability provision, which disables those who have been convicted of certain enumerated crimes as well as those whose spouses have been convicted of the same enumerated crimes. This civil disability lasts for two years in the case of misdemeanor convictions and five years in the case of conviction of a felony or of more than two misdemeanors within a 24-month period. [FN2] Thus, under the amended ordinance, **609 once the disability *233 period has elapsed, the applicant may not be denied a license on the ground of a former conviction. FN1. Section41 A-5(a)(5) provides as follows: "The chief of police shall approve the issuance of a license ... unless he finds [that] ... [a]n applicant is residing with a person who has been denied a license by the city to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months." FN2. Sections 41A-5(a)(10), (b), and (c), as amended, provide as follows: "The chief of police shall approve the issuance of a license ... unless he finds [that]... "(10) An applicant or an applicant's spouse has been convicted of a crime: "(A) involving: "(i) any of the following offenses as described in Chapter 43 of the Texas Penal Code: "(aa) prostitution; Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 11 "(bb) promotion of prostitution; "(cc) aggravated promotion of prostitution; "(dd) compelling prostitution; "(ee) obscenity; "(ff) sale, distribution, or display of harmful material to minor; "(gg) sexual performance by a child; "(hh) possession of child pornography; " (ii) any of the following offenses as described in Chapter 21 of the Texas Penal Code: "(aa) public lewdness; "(bb) indecent exposure; "(cc) indecency with a child; "(iii) sexual assault or aggravated sexual assault as described in Chapter 22 of the Texas Penal Code; "(iv) incest, solicitation of a child, or harboring a runaway child as described in Chapter 25 of the Texas Penal Code; or "(v) criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses; "(B) for which: "(i) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; "(ii) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or "(iii) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period. "(b) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse. "(c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in Subsection (a)(10) may qualify for a sexually oriented business license only when the time period required by Section 41A-5(a)(10)(B) has elapsed." [7][8] Examination of the record here reveals that no party has standing to challenge the provision involving those residing with individuals whose licenses were denied or revoked. Nor does any party have standing to challenge the civil disability provision disabling applicants who were either convicted of the specified offenses or whose spouses were convicted. First, the record does not reveal that any party before us was living with an individual whose license application was denied or whose license was revoked. Therefore, no party has standing with respect to § 41A-5(a)(5). Second, § 41A-5(a)(10) applies to applicants whose spouses have been convicted of any of the enumerated crimes, but the record reveals only one individual who could be disabled under this provision. An individual, who had been convicted under the Texas Controlled Substances Act, asserts that his wife was interested in opening a sexually oriented business. But the wife, although an officer of petitioner Bi-Ti Enterprises, Inc., *234 is not an applicant for a license or a party to this action. See 12 Record, Evert Affidavit 3-6. Cf. Bender, 475 U.S., at 548, and n. 9, 106 S.Ct, at 1335, and n. 9. Even if the wife did have standing, her claim would now be moot. Her husband's convictions under the Texas Controlled Substances Act would not now disable her from obtaining a license to operate a sexually oriented business, because the city council, following the District Court's decision, deleted the provision disabling those with convictions under the Texas Controlled Substances Act or Dangerous Drugs Act. App.H. to Pet. for Cert, in No. 87- 2012, p. 107. See Hall v. Beats, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02, 24 L.Ed.2d 214 (1969). [9] Finally, the record does not reveal any party who has standing to challenge the provision disabling an applicant who was convicted of any of the enumerated crimes. To establish standing to challenge that provision the individual must show both (1) a conviction of one or more of the enumerated crimes, and (2) that the conviction or release from confinement occurred recently enough to disable the applicant under the ordinance. See §§ 41A-5(a)(10)(A), (B). If the disability period has elapsed, the applicant is not deprived of the possibility of obtaining a license and, therefore, cannot be injured by the provision. The only party who could plausibly claim to have standing to challenge this provision is Bill Staten, who stated in an affidavit that he had been "convicted of three misdemeanor obscenity violations within a twenty-four month period." 7 Record, Staten Affidavit 2. That clearly satisfies the first requirement. Under the ordinance, any person convicted of two or more misdemeanors "within any 24-month period," must wait five years following the last conviction or release from confinement, whichever is later, before a license may be Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 12 issued. See § 41A-5(a)(10)(B)(iii). But Staten failed to state when he had been convicted of the last misdemeanor or the date of release from confinement and, thus, has failed "clearly to allege facts demonstrating that he is a proper *235 party" to challenge the civil disability provisions. No other petitioner has alleged facts to establish standing, and the District Court made no factual findings that could support standing. Accordingly, we conclude that the petitioners lack standing to challenge the provisions. See Warth, 422 U.S., at 518, 95 S.Q., at 2215. [I0][ll] At oral argument, the city's attorney responded as follows when asked whether there was standing to challenge the civil disability provisions: "I believe that there are one or two of the Petitioners that have had their licenses denied based on criminal conviction." Tr. of Oral Arg. 32. See also Foster Affidavit 1 (affidavit filed by the city in its Response to Petitioner's Application for Recall and Stay of the Mandate stating that two licenses were revoked on the **610 grounds of a prior conviction since the ordinance went into effect but failing to identify the licensees). We do not rely on the city's representations at argument as "the necessary factual predicate may not be gleaned from the briefs and arguments themselves," Bender, supra, 475 U.S., at 547, 106 S.Ct., at 1334. And we may not rely on the city's affidavit, because it is evidence first introduced to this Court and "is not in the record of the proceedings below," A dickes v. S. H. Kress & Co., 398 U.S. 144, 157, n. 16, 90 S.Ct. 1598, 1608, n. 16, 26 L.Ed.2d 142 (1970). Even if we could take into account the facts as alleged in the city's affidavit, it fails to identify the individuals whose licenses were revoked and, therefore, falls short of establishing that any petitioner before this Court has had a license revoked under the civil disability provisions. Because we conclude that no petitioner has shown standing to challenge either the civil disability provisions or the provisions involving those who live with individuals whose licenses have been denied or revoked, we conclude that the courts below lacked jurisdiction to adjudicate petitioners' claims with respect to those provisions. We accordingly vacate the judgment of the Court of Appeals with respect to those provisions with directions to dismiss that portion of the action. See Bender, supra, 475 U.S. at 549,106 S.Ct., at 1335 (vacating judgment below on *236 ground of lack of standing); McNutt, 298 U.S., at 190,56 S.Ct., at 785 (same). [FN3] FN3. Petitioners also raise a variety of other First Amendment challenges to the ordinance's licensing scheme. In light of our conclusion that the licensing requirement is unconstitutional because it lacks essential procedural safeguards and that no petitioner has standing to challenge the residency or civil disability provisions, we do not reach those questions. IV The motel owner petitioners challenge two aspects of the ordinance's requirement that motels that rent rooms for fewer than 10 hours are sexually oriented businesses and are, therefore, regulated under the ordinance. See § 41A-18(a). First, they contend that the city had an insufficient factual basis on which to conclude that rental of motel rooms for fewer than 10 hours produced adverse impacts. Second, they contend that the ordinance violates privacy rights, especially the right to intimate association. [12] With respect to the first contention, the motel owners assert that the city has violated the Due Process Clause by failing to produce adequate support for its supposition that renting rooms for less than 10 hours results in increased crime or other secondary effects. They contend that the council had before it only a 1977 study by the city of Los Angeles that considered cursorily the effect of adult motels on surrounding neighborhoods. See Defendant's Motion for Summary Judgment, Vol. 2, Exh. 11. The Court of Appeals thought it reasonable to believe that shorter rental time periods indicate that the motels foster prostitution and that this type of criminal activity is what the ordinance seeks to suppress. See 837 F.2d, at 1304. Therefore, no more extensive studies were required than those already available. We agree with the Court of Appeals that the reasonableness of the legislative judgment, combined with the Los Angeles study, is adequate to support the city's determination that motels permitting room rentals for fewer than 10 hours should be included within the licensing scheme. *237 [13] The motel owners also assert that the 10-hour limitation on the rental of motel rooms places an unconstitutional burden on the right to freedom of association recognized in Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 3250, 82 L.Ed.2d 462 (1984) ("Bill of Rights ... must afford the formation and preservation of certain kinds of highly personal relationships"). The city does not challenge the motel owners' standing to raise the issue whether the associational rights of their motel patrons have been violated. There can be little question that the motel owners have "a live controversy **611 against enforcement of the statute" and, therefore, that they Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 13 have Art. Ill standing. Craig v. Boren, 429 U.S. 190, 192, 97 S.Ct. 451, 454, 50 L.Ed.2d 397 (1976). It is not clear, however, whether they have prudential, jus tertii standing to challenge the ordinance on the ground that the ordinance infringes the associational rights of their motel patrons. Id., at 193, 97 S.Ct., at 454-55. But even if the motel owners have such standing, we do not believe that limiting motel room rentals to 10 hours will have any discernible effect on the sorts of traditional personal bonds to which we referred in Roberts. Any "personal bonds" that are formed from the use of a motel room for fewer than 10 hours are not those that have "played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs." 468 U.S., at 618-619, 104 S.Ct., at 3249-3250. We therefore reject the motel owners' challenge to the ordinance. Finally, the motel owners challenge the regulations on the ground that they violate the constitutional right "to be let alone," Olmsteadv. United States, 217 U.S. 438, 478,48 S.Ct. 564,572,72 L.Ed. 944 (1928) (Brandeis, J., dissenting), and that the ordinance infringes the motel owners' commercial speech rights. Because these issues were not pressed or passed upon below, we decline to consider them. See, e.g., Rogers v. Lodge, 458 U.S. 613, 628, n. 10, 102 S.Ct. 3272, 3281, n. 10, 73 L.Ed.2d 1012(1982); FTCv. Grolierlnc., 462 U.S. 19,23, n. 6,103 S.Ct. 2209,2212, n. 6,76 L.Ed.2d 387 (1983). *238 Accordingly, the judgment below is affirmed in part, reversed in part, and vacated in part, and the cases are remanded for further proceedings consistent with this opinion. // is so ordered. Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, concurring in the judgment. I concur in the judgment invalidating the Dallas licensing provisions, as applied to any First Amendment-protected business, because I agree that the licensing scheme does not provide the procedural safeguards required under our previous cases. [FN1 ] I also concur in the judgment upholding the provisions applicable to adult motels, because I agree that the motel owners' claims are meritless. I agree further that it is not necessary to reach petitioners' other First Amendment challenges. I write separately, however, because I believe that our decision two Terms ago in *239Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 108 S.Ct. 2667, 1.01 L.Ed.2d 669 (1988), mandates application of all three of the procedural safeguards specified in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), not just two of them, and also to point out that Part III of Justice O'CONNOR'S opinion reaches a question not necessary to the decision. FN1. Justice SCALIA's opinion concurring in part and dissenting in part, purportedly grounded in my opinion in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), does not persuade me otherwise. In Ginzburg, this Court held merely that, in determining whether a given publication was obscene, a court could consider as relevant evidence not only the material itself but also evidence showing the circumstances of its production, sale, and advertising. Id, at 465- 466, 86 S.Ct., at 944-945. The opinion concluded: "It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged." Id, at 475, 86 S.Ct., at 950. As Justice O'CONNOR'S opinion makes clear, ante at 603-604, there is no "obscenity vel non" question in this case. What Ginzburg did not do, and what this Court has never done, despite Justice SCALIA's claims, is to abrogate First Amendment protection for an entire category of speech-related businesses. We said in Ginzburg that we perceived "no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question." 383 U.S., at 474, 86 S.Ct., at 949. History has proved us right, I think, that the decision itself left First Amendment guarantees secure. Justice SCALIA's transmogrification of Ginzburg, however, is far from innocuous. **612 I In Freedman v. Maryland, supra, as Justice O'CONNOR notes, we held that three procedural safeguards are needed to "obviate the dangers of a censorship system": (1) any prior restraint in advance of a final judicial determination on the merits must be no longer than that necessary to preserve the status quo pending judicial resolution; (2) a prompt judicial determination must be available; and (3) the would-be Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 14 censor must bear both the burden of going to court and the burden of proof in court. 380 U.S., at 58-59, 85 S.Ct, at 738-739. Freedman struck down a statute that required motion picture houses to submit films for prior approval, without providing any of these protections. Similar cases followed, e.g., Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968) (invalidating another motion picture censorship ordinance for failure to provide adequate Freedman procedures); Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971) (invalidating postal rules permitting restrictions on the use of the mails for allegedly obscene materials because the rules lacked Freedman safeguards); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (finding unconstitutional a city's refusal to rent municipal facilities for a musical because of its content, absent Freedman procedures). We have never suggested that our insistence on Freedman procedures might vary with the particular facts of the prior restraint before us. To the contrary, this Court has continued to require Freedman procedures hi a wide variety of contexts. In National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977), we held that even a court-ordered injunction must be stayed if appellate review is not expedited. *240 Id., at 44, 97 S.Ct., at 2206. And in Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980), we held that a general public nuisance statute could not be applied to enjoin a motion picture theater's future exhibition of films for a year, based on a presumption that such films would be obscene merely because prior films had been, when such a determination could be constitutionally made only in accordance with Freedman procedures. 445 U.S., at 317, 100 S.Ct., at 1162. Two Terms ago, in Riley, this Court applied Freedman to a professional licensing scheme because the professionals involved, charity fundraisers, were engaged in First Amendment-protected activity. We held that, even if North Carolina's interest in licensing fundraisers was sufficient to justify such a regulation, it "must provide that the licensor 'will, within a specified brief period, either issue a license or go to court.1" 487 U.S., at 802, 108 S.Ct, at 2680, quoting and applying Freedman, supra, 380 U.S., at 59, 85 S.Ct., at 739. The North Carolina statute did not so provide, and we struck it down. 487 U.S., at 802, 108 S.Ct., at 2681. In Riley, this Court, to be sure, discussed the failure of the North Carolina statute to set a time limit for actions on license applications, but it also held that the licensor must be required to go to court, not the would- be fundraiser. Because I see no relevant difference between the fundraisers in Riley and the bookstores and motion picture theaters hi these cases, I would hold that the city of Dallas must bear the burden of going to court and proving its case before it may permissibly deny licenses to First Amendment- protected businesses. Justice O'CONNOR bases her disinclination to require the third Freedman procedure on two grounds: the Dallas licensing scheme does not involve an administrator's passing judgment on whether the content of particular speech is protected or not; and the Dallas scheme licenses entire businesses, not just individual films. Justice O'CONNOR finds the first distinction significant on the theory that our jurisprudence holds only that suppression of speech on the ostensible ground of *241 content is presumptively invalid. She finds the second significant because it anticipates that applicants with an entire **613 business at stake will pursue their interests in court rather than abandon them. While Justice O'CONNOR is certainly correct that these aspects distinguish the facts before us from those in Freedman, neither ground distinguishes these cases from Riley. The licensor in Riley was not required to distinguish between protected and unprotected speech. He was reviewing applications to practice a particular profession, just as the city of Dallas is acting on applications to operate particular businesses. Similarly, the fundraisers in Riley had their entire livelihoods at stake, just as the bookstores and others subject to the Dallas ordinance. Nonetheless, this Court placed the burden of going to court on the State, not the applicant. [FN2] 487 U.S., at 802, 1.08 S.Ct. at 2680. FN2. Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980), also involved censorship that threatened proprietors' entire businesses, rather than single films. This Court, notwithstanding, affirmed the Court of Appeals which had held that the statute was unconstitutional because it lacked the procedural safeguards required under Freedman. 445 U.S., at 314, 317, 100 S.Ct., at 1162. Moreover, I believe Riley was rightly decided for the same reasons that the limitation set forth in Justice O'CONNOR'S opinion is wrong. The danger posed by a license that prevents a speaker from speaking at all is not derived from the basis on which that license was purportedly denied. The danger posed is the unlawful Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 15 stifling of speech that results. As we said in Freedman, it is "the transcendent value of speech" that places the burden of persuasion on the State. 380 U.S., at 58, 85 S.Ct, at 738-739. The heavy presumption against prior restraints requires no less. Justice O'CONNOR does not, nor could she, contend that those administering this ordinance will always act according to their own law. Mistakes are inevitable; abuse is possible. In distributing the burdens of initiating judicial proceedings and proof, we are obliged *242 to place them such that we err, if we must, on the side of speech, not on the side of silence. II In Part HI of the opinion, Justice O'CONNOR considers at some length whether petitioners have made an adequate showing of standing to bring their claims against the cohabitation and civil disability provisions of the licensing scheme. Were it of some precedential value, I would question this Court's reversal of the findings of both the District Court and the Court of Appeals [FN3] that petitioners had standing to bring their claims, where the basis for reversal is an affidavit that is at worst merely ambiguous. But because the discussion is wholly extraneous to the actual holding in this case, I write only to clarify that Part III is unnecessary to the decision and is pure dictum. FN3. Both the District Court and the Fifth Circuit, after finding that plaintiffs had standing to challenge the ordinance, reached the civil disability question. See 837 F.2d 1298, 1301, 1304-1305 (1988); Dumas v. Dallas, 648 F.Supp. 1061 (ND Tex.1986). The first claim for which the Court fails to find a petitioner with standing—an unspecified obj ection to the provision denying a license to any applicant residing with someone whose own application has been denied or revoked within the past year—is not directly presented by the parties, was not reached by the court below, and is not among the questions on which certiorari was granted. The second claim for which the Court fails to find a petitioner with standing-petitioners' objection to the ordinance's civil disability provisions-is clearly before this Court, but consideration of this claim is rendered redundant by Justice O'CONNOR'S holding in Part II. The civil disability claim is an objection to that part of the licensing scheme which provides for denial or revocation of a license because of prior criminal convictions, on the **614 ground *243 that these provisions "impose an impermissible prior restraint upon protected expression." Brief for Petitioners FW/PBS, Inc., et al. 12. [FN4] Because the challenge is based solely on the First Amendment, a victory on the merits would benefit only those otherwise regulated businesses which are protected by the First Amendment. FN4. Petitioners M.J.R., Inc., et al. phrase the same objection slightly differently. They characterize license denial or revocation based on certain listed prior speech offenses as a "classic prior restraint of the type prohibited as facially unconstitutional under the rule of Near v. Minnesota [ex rel. Olson ], 283 U.S. 697,51 S.Ct. 625,75 L.Ed. 1357 (1931)," and they characterize license denial or revocation based on other listed prior offenses as "prior restraints which cannot withstand strict scrutiny and are therefore invalid under the first amendment." See Brief for Petitioners M.J.R., Inc.,etal. 22, 33. But since the Court invalidates the application of the entire Dallas licensing scheme to any First Amendment-protected business under the Freedman doctrine, it is unnecessary to decide whether some or all of the same provisions are also invalid, as to First Amendment-protected businesses, on other grounds. Justice O'CONNOR recognizes this and wisely declines to reach petitioners' challenge to various requirements under the licensing scheme, other than the civil disability and cohabitation provisions, on the First Amendment ground that the ordinance impermissibly singles out persons and businesses engaged in First Amendment-protected activities for regulation. [FN5] FN5. See Brief for Petitioners FW/PBS, Inc., etal. 21-24. For reasons unexplained and inexplicable, the opinion separates the prior restraint and singling out claims and accords them different treatment. Perhaps, if the inquiry had reached the merits of the prior restraint claim, one could infer a motive to take the opportunity to offer guidance in an area of the law badly in need of it. But because the inquiry proceeds no further than jurisdiction, no such explanation is available. Whatever the reason for including Part III, it is superfluous. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 16 *244 Justice WHITE, with whom the Chief Justice joins, concurring in part and dissenting in part. I join Parts I, III, and IV of the Court's opinion but do not agree with the conclusion in Part II that the Dallas ordinance must include two of the procedural safeguards set forth in Freedman v. Maryland, 3 80 U. S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), in order to defeat a facial challenge. I would affirm the Fifth Circuit's holding that Freedman is inapplicable to the Dallas scheme. The Court has often 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." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673,1678-79,20L.Ed.2d672(1968). SeealsoC7ar£ v. Community for Creative Non-Violence, 468 U.S. 288,298-299,104 S.Ct. 3065,3071-3072, 82 L.Ed.2d 221 (1984); Cox v. Louisiana, 379 U.S. 559, 562-564, 85 S.Ct. 476, 479-481, 13 L.Ed.2d 487 (1965); Adderley v. Florida, 385 U.S. 39, 48, n. 7, 87 S.Ct. 242, 247, n. 7, 17 L.Ed.2d 149 (1966). Our cases upholding time, place, and manner restrictions on sexually oriented expressive activity are to the same effect. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Time, place, and manner restrictions are not subject to strict scrutiny and are sustainable if they are content neutral, are designed to serve a substantial governmental interest, and do not unreasonably limit alternative means of communication. Renton, supra, 475 U.S., at 47, 106 S.Ct., at 928. See also **615Heffronv. International Society for Krishna Consciousness, Inc., 452 U.S. 640,647-648, 101 S.Ct. 2559, 2563-2564, 69 L.Ed.2d 298 (1981); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). Renton and Young also make clear that there is a substantial governmental interest in regulating sexually oriented businesses because of their likely deleterious effect on the areas surrounding them and that such regulation, although focusing on a limited class of businesses involved in expressive activity, is to be treated as content neutral. *245 Justice O'CONNOR does not suggest that the businesses involved here are immune from the kind of regulation sustained in Young and Renton. Neither is it suggested that the prerequisites for obtaining a license, such as certificates of occupancy and inspections, do not serve the same kind of a substantial governmental interest dealt with in those cases nor that the licensing system fails the test of content neutrality. The ordinance in no way is aimed at regulating what may be sold or offered hi the covered businesses. With a license, operators can sell anything but obscene publications. Without one-without satisfying the licensing requirements— they can sell nothing because the city is justified in enforcing the ordinance to avoid the likely unfavorable consequences attending unregulated sexually oriented businesses. Justice O'CONNOR nevertheless invalidates the licensing provisions for failure to provide some of the procedural requirements that Freedman v. Maryland, supra, imposed in connection with a Maryland law forbidding the exhibition of any film without the approval of a board of censors. There, the board was approving or disapproving every film based on its view of the film's content and its suitability for public viewing. Absent procedural safeguards, the law imposed an unconstitutional prior restraint on exhibitors. As I have said, however, nothing like that is involved here; the predicate identified in Freedman for imposing its procedural requirements is absent in these cases. Nor is there any other good reason for invoking Freedman. The Dallas ordinance is in many respects analogous to regulations requiring parade or demonstration permits and imposing conditions on such permits. Such regulations have generally been treated as time, place, and manner restrictions and have been upheld if they are content neutral, serve a substantial governmental interest, and leave open alternative avenues of communication. Cox v. New Hampshire, 312 U.S. 569, 574-576, 61 S.Ct. 762, 765-766, 85 L.Ed. 1049(1941); Clark v. Community for Creative Non-Violence, supra, 468 U.S., at 293-298, 104 S.Ct., at 3068-3071. The Dallas scheme regulates *246 who may operate sexually oriented businesses, including those who sell materials entitled to First Amendment protection; but the ordinance does not regulate content and thus it is unlike the content-based prior restraints that this Court has typically scrutinized very closely. See, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205,53 L.Ed.2d 96 (1977); Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d413 (1980); Freedman v. Maryland, supra. Licensing schemes subject to First Amendment scrutiny, however, even though purporting to be time, place, and manner restrictions, have been invalidated when undue discretion has been vested in the licensor. Unbridled discretion with respect to the criteria used in deciding whether or not to grant a license is deemed to Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 17 convert an otherwise valid law into an unconstitutional prior restraint. Shuttlesworthv. Birmingham, 394 U.S. 147, 150-152, 89 S.Ct. 935, 938-939, 22 L.Ed.2d 162 (1969); Lakewoodv. Plain Dealer Publishing Co., 486 U.S. 750,757,108 S.Ct. 2138,2143,100 L.Ed.2d 771 (1988); Staub v. City ofBaxley, 355 U.S. 313,78 S.Ct. 277,2 L.Ed.2d 302 (1958);Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 328, 95 L.Ed. 280 (1951); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); **616 Saiav. New York, 334 U.S. 558,68 S.Ct. 1148,92 L.Ed. 1574 (1948). That rule reflects settled law with respect to licensing in the First Amendment context. But here there is no basis for invoking Freedman procedures to protect against arbitrary use of the discretion conferred by the ordinance before us. Here, the Court of Appeals specifically held that the ordinance did not vest undue discretion in the licensor because the ordinance provides sufficiently objective standards for the chief of police to apply. 837 F.2d 1298,1305-1306 (CAS 1988). Justice O'CONNOR'S opinion does not disturb this aspect of the Court of Appeals' decision, and because it does not, one arguably tenable reason for invoking Freedman disappears. Additionally, petitioners' reliance on Riley v. National Federation ofBlindofN.C., Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), is misplaced. Riley invalidated a licensing requirement for professional fundraisers which prevented them from soliciting *247 prior to obtaining a license, but which permitted nonprofessionals to solicit while their license applications were pending. We there held that a professional fundraiser was a speaker entitled to First Amendment protection and that because "the State's asserted power to license professional fundraisers carries with it (unless properly constrained) the power directly and substantially to affect the speech they utter," id., at 801, 108 S.Ct., at 2670, the requirement was subject to First Amendment scrutiny to make sure that the licensor's discretion was suitably confined. Riley thus appears to be a straightforward application of the "undue-discretion" line of cases. The Court went on to say, however, that even assuming, as North Carolina urged, that the licensing requirement was a time, place, and manner restriction, Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), required that there be provision for either acting on the license application or going to court within a specified brief period of time. Contrary to the ordinance in these cases, the Riley licensing requirement was aimed directly at speech. The discretion given the licensors in Riley empowered them to affect the content of the fundraiser's speech, unless that discretion was suitably restrained. In that context, the Court invoked Freedman. That basis for applying Freedman is not present here, for, as I have said, the licensor is not vested with undue discretion. Neither is there any basis for holding that businesses dealing in expressive materials have been singled out; all sexually oriented businesses—including those not involved in expressive activity such as escort agencies-are covered, and all other businesses must live up to the building codes, as well as fire and health regulations. Furthermore, the Court should not assume that the licensing process will be unduly prolonged or that inspections will be arbitrarily delayed. There is no evidence that this has been the case, or that inspections in other contexts have been delayed or neglected. Between the time of the District Court's judgment and that of the *248 Fifth Circuit, Dallas granted some 147 out of 165 license requests, and none of the petitioners in making this facial challenge to the ordinance asserts that its license application was not promptly dealt with, that it was unable to obtain the required inspections promptly, or that it was unable to secure reasonably prompt review of a denial. Clearly the licensing scheme neither imposes nor results in a ban of any type of adult business. I see no basis for invalidating this ordinance because it fails to include some prophylactic measures that will guard against highly speculative injuries. As Justice O'CONNOR notes in the course of refusing to apply one of the Freedman procedural mandates, the licensing in these cases is required of sexually oriented businesses, enterprises that will have every incentive to pursue the license applications vigorously. Ante, at 606-607. The ordinance requires that an application be acted on within 30 **617 days. Licensing decisions suspending or revoking a license are immediately appealable to a permit and license appeal board and are stayed pending that appeal. In addition, no one suggests that licensing decisions are not subject to immediate appeal to the courts. As I see it, there is no realistic prospect that the requirement of a license will have anything more than an incidental effect on the sale of protected materials. Perhaps Justice O'CONNOR is saying that those who deal in expressive materials are entitled to special procedures in the course of complying with otherwise valid, neutral regulations generally applicable to all businesses. I doubt, however, that bookstores or radio or television stations must be given special breaks in the enforcement of general health, building, and fire regulations. If they must, why would not a variety of other kinds of businesses, like supermarkets and convenience stores that sell books and magazines, also be so entitled? I question that there is authority to be found in our cases for such a special privilege. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 18 *249 For the foregoing reasons, I respectfully dissent from Part II of Justice O'CONNOR'S opinion. Justice STEVENS, concurring in part and dissenting in part. As the Court explains in Part III of its opinion, it is not certain that any petitioner has standing to challenge the provisions of the licensing scheme that disqualify applicants who are themselves unqualified or who reside with, or are married to, unqualified persons. Given the breadth of those provisions, the assertions in the Staten and Foster affidavits, and the District Court's understanding of the relevant facts, however, I cannot join the decision to direct dismissal of this portion of the litigation. See ante, at 609-610. I would remand for an evidentiary hearing on the standing issues. I join Parts I, II, and IV of Justice O'CONNOR'S opinion. With respect to Justice SCALIA's proposed resurrection of Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), I have this comment. As I explained in my dissenting opinion in Splawn v. California, 431 U.S. 595,602,97 S.Ct. 1987, 1991-92, 52 L.Ed.2d 606 (1977), Ginzburg was decided before the Court extended First Amendment protection to commercial speech and cannot withstand our decision in Virginia Pharmacy Ed. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). If conduct or communication is protected by the First Amendment, it cannot lose its protected status by being advertised in a truthful and inoffensive manner. Any other result would be perverse, "Signs which identify the 'adult' character of a motion picture theater or of a bookstore convey the message that sexually provocative entertainment is to be found within.... Such signs ... provide a warning to those who find erotic materials offensive that they should shop elsewhere for other kinds of books, magazines, or entertainment. Under any sensible regulatory scheme, truthful description of subject matter that is pleasing to *250 some and offensive to others ought to be encouraged, not punished." 431 U.S., at 604, 97 S.Ct., at 1992. Justice SCALIA, concurring in part and dissenting in part. I join Part I of the Court's opinion, Part III, holding that there is no standing to challenge certain portions of the Dallas ordinance, and Part IV, sustaining on the merits certain other portions. I dissent from the judgment, however, because I would affirm the Fifth Circuit's holding that the ordinance is constitutional in all respects before us. I Since this Court first had occasion to apply the First Amendment to materials treating of sex, some three decades ago, we have been guided by the principle that "sex and obscenity are not synonymous," **618Roth v. United States, 354 U.S. 476,487,77 S.Ct. 1304,1310, 1 L.Ed.2d 1498 (1957). The former, we have said, the Constitution permits to be described and discussed. The latter is entirely unprotected, and may be allowed or disallowed by States or communities, as the democratic majority desires. Distinguishing the one from the other has been the problem. Obscenity, in common understanding, is material that "treatfs] sex in a manner appealing to prurient interest," id, at 488,77 S.Ct., at 1311. But for constitutional purposes we have added other conditions to that definition, out of an abundance of concern that "the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest." Ibid. To begin with, we rejected the approach previously adopted by some courts, which would permit the banning of an entire literary work on the basis of one or several passages that in isolation could be considered obscene. Instead, we said, "the dominant theme of the material taken as a whole " must appeal to prurient interest. Id, at 489, 77 S.Ct., at 1311 (emphasis added). We have gone on to add other conditions, which are reflected in the three-part test pronounced in Miller v. California, 413 U.S. 15,24, 93 S.Ct. 2607,2615, 37 L.Ed.2d 419 (1973): *251 "The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." These standards' immediate purpose and effect—which, it is fair to say, have met with general public acceptance-have been to guarantee the access of all adults to such works of literature, once banned or sought to be banned, as Dreiser's An American Tragedy, [FN1] Lawrence's Lady Chatterley's Lover, [FN2] Miller's Tropic of Cancer and Tropic of Capricorn, [FN3] and Joyce's Ulysses, [FN4] and to many stage and motion picture productions of genuine dramatic or entertainment value that contain some sexually explicit or even erotic material. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works FN1. Held obscene in Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472 (1930). FN2. Held obscene in People v. Dial Press, Inc., 182 Misc. 416, 48 N.Y.S.2d 480 (N.Y.Magis.Ct.1944). FN3. Held obscene in United States v. Two Obscene Books, 99 F.Supp. 760 (ND Call951), affd sub nom. Besig v. United States, 208 F.2d 142 (CA9 1953). FN4. Unsuccessfully challenged as obscene in United States v. One Book Called "Ulysses," 5 F.Supp. 182 (SONY 1933), afFd, 72 F.2d 705 (CA2 1934). Application of these standards (or, I should say, misapplication of them) has had another effect as well—unintended and most certainly not generally approved. The Dallas ordinance at issue in these cases is not an isolated phenomenon. It is one example of an increasing number of attempts throughout the country, by various means, not to withhold from the public any particular book or performance, but to prevent the erosion of public morality by the increasingly general appearance of what the Dallas ordinance delicately calls "sexually *252 oriented businesses." Such businesses flourish throughout the country as they never did before, not only in New York's Times Square, but in much smaller communities from coast to coast. Indeed, as a case we heard last Term demonstrates, they reach even the smallest of communities via telephonic "dial-a-pom." Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). While many communities do not object to such businesses, others do, and have sought to eliminate them. Attempts to do so by focusing upon the individual books, motion pictures, or performances that these businesses **619 market are doomed to failure by reason of the very stringency of our obscenity test, designed to avoid any risk of suppressing socially valuable expression. Communities cannot close down "pom-shops" by banning pornography (which, so long as it does not cross the distant line of obscenity, is protected), just as Congress cannot eliminate specialized "dial-a-porn" telephone services by prohibiting individual messages that are "indecent" but not quite obscene. Id, at 131, 109 S.Ct., at 2839. Page 19 Consequently, communities have resorted to a number of other means, including stringent zoning laws, see e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (ordinance adopting unusual zoning technique of requiring sexually oriented businesses to be dispersed rather than concentrated); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (ordinance restricting theaters that show "adult" films to locations comprising about 5% of the community's land area, where the Court of Appeals had found no "commercially viable" sites were available), Draconian sanctions for obscenity which make it unwise to flirt with the sale of pornography, see Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989) (state Racketeer Influenced and Corrupt Organizations (RICO) statute), and the ordinance we have before us today, a licensing scheme purportedly designed to assure that porn-shops are run by a better class of person. Not only are these oblique methods less than entirely effective in eliminating the *253 perceived evil at which they are directed (viz., the very existence of sexually oriented businesses anywhere in the community that does not want them), but they perversely render less effective our efforts, through a restrictive definition of obscenity, to prevent the "chilling" of socially valuable speech. State RICO penalties for obscenity, for example, intimidate not just the porn-shop owner, but also the general bookseller who has been the traditional seller of new books such as Ulysses. It does not seem to me desirable to perpetuate such a regime of prohibition by indirection. I think the means of rendering it unnecessary is available under our precedents and should be applied in the present cases. That means consists of recognizing that a business devoted to the sale of highly explicit sexual material can be found to be engaged in the marketing of obscenity, even though each book or film it sells might, in isolation, be considered merely pornographic and not obscene. It is necessary, to be sure of protecting valuable speech, that we compel all communities to tolerate individual works that have only marginal communicative content beyond raw sexual appeal; it is not necessary that we compel them to tolerate businesses that hold themselves forth as specializing in such material. Because I think that Dallas 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. II The Dallas ordinance applies to any sexually oriented Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 20 business, which is defined as "an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center." Dallas City Code § 41A-2(19) (1986). Operators of escort agencies and sexual encounter centers are not before us. *254 "Adult bookstore or adult video store" is defined, inter alia, as a "commercial establishment which as one of its principal business purposes offers for sale or rental" books or other printed matter, or films or other visual representations, "which depict or describe 'specified sexual activities' or 'specified anatomical areas.' " § 41A-2(2)(A) (emphasis added). [FN5] "Adult motion picture theater" **620 is defined as a commercial establishment where films "are regularly shown" that depict specified sexual activities or specified anatomical areas. § 41A-2(5) (emphasis added). [FN6] Other sexually oriented businesses are similarly defined as establishments that "regularly" depict or describe specified sexual activities or specified anatomical areas. [FN7] "Specified sexual activities" means FN5. "Adult Bookstore or Adult Video Store means a commercial establishment which as one of its principal business purposes offers for sale or rental for any form of consideration any one or more of the following: "(A) books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe 'specified sexual activities' or 'specified anatomical areas'; or "(B) instruments, devices, or paraphernalia which are designed for use in connection with 'specified sexual activities.' " Dallas City Code §§ 41A- 2(2)(A), (B) (1986). The regulation of businesses that sell the items described in subsection (B) raises no First Amendment question. FN6. "Adult Motion Picture Theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of 'specified sexual activities' or 'specified anatomical areas.'" § 41A-2(5). FN7. "(3) Adult Cabaret means a nightclub, bar, restaurant, or similar commercial establishment which regularly features: "(A) persons who appear in a state of nudity; or "(B) live performances which are characterized by the exposure of 'specified anatomical areas' or by 'specified sexual activities'; or "(C) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of 'specified sexual activities' or 'specified anatomical areas.'" "(6) Adult Theater means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of'specified anatomical areas' or by 'specified sexual activities.' "(12) Nude Model Studio means any place where a person who appears in a state of nudity or displays 'specified anatomical areas' is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. "(13) Nudity or a State of Nudity means: "(A) the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast; or "(B) a state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast." § 41 A-2. As to nude model studios, the ordinance further provides as a defense to prosecution that "a person appearing in a state of nudity did so in a modeling class operated: "(1) by a proprietary school licensed by the state of Texas; a college, junior college, or university supported entirely or partly by taxation; "(2) by a private college or university which maintains and operates educational programs in which credits are transferrable to a college, Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 21 junior college, or university supported entirely or partly by taxation; or "(3) in a structure: "(A) which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and "(B) where in order to participate in a class a student must enroll at least three days in advance of the class; and "(C) where no more than one nude model is on the premises at any one time." § 41A-21(d). *255 "(A) the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts; "(B) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; "(C) masturbation, actual or simulated; or "(D) excretory functions as part of or in connection with any of the activities set forth in (A) through (C) above." § 41A-2(21). Finally, "specified anatomical areas" means "human genitals in a state of sexual arousal." § 41A-2(20). *256 As I shall discuss in greater detail presently, this ordinance is unusual in that it does not apply "work by work." It can reasonably be interpreted to restrict not sales of (or businesses that sell) any particular book, film, or entertainment, but only businesses **621 that specialize in books, films, or entertainment of a particular type. That places the obscenity inquiry in a different, and broader, context. Our jurisprudence supports the proposition that even though a particular work of pornography is not obscene under Miller, a merchant who concentrates upon the sale of such works is engaged in the business of obscenity, which may be entirely prohibited and hence (a fortiori) licensed as required here. The dispositive case is Ginzburgv. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). There the defendant was convicted of violating the federal obscenity statute, 18 U.S.C. § 1461, by mailing three publications which our opinion assumed, see 383 U.S., at 465-466, 86 S.Ct., at 944-945, were in and of themselves not obscene. We nonetheless upheld the conviction, because the evidence showed "that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering— 'the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.'" Id, at 467, 86 S.Ct., at 945 (quoting Roth v. United States, 354 U.S., at 495-496, 77 S.Ct., at 1314-1315 (Warren, C.J., concurring)). Justice BRENNAN's opinion for the Court concluded that the advertising for the publications, which "stressed the [ir] sexual candor," 383 U.S., at 468, 86 S.Ct., at 946, "resolve[d] all ambiguity and doubt" as to the unprotected status of the defendants' activities. Id, at 470, 86 S.Ct., at 947. "The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content.... And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the *257 circumstances, pretense or reality—whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test." Id, at 470-471, 86 S.Ct., at 947. We held one of the three publications in question to be, in the circumstances of its sale, obscene, despite the trial court's finding that only 4 of the 15 articles it contained "predominantly appealed to prurient interest and substantially exceeded community standards of candor," id, at 471, 86 S.Ct., at 947; and another to be obscene despite the fact that it previously had been sold by its author to numerous psychiatrists, some of whom testified that they found it useful in their professional practice. We upheld the convictions because the petitioners had "deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed." Id, at 472, 86 S.Ct., at 948. In Memoirs v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), decided the same day as Ginzburg, we overturned the judgment that a particular book was obscene, but, citing Ginzburg, made clear that this did not mean that all circumstances of its distribution would be constitutionally protected. We said: "On the premise, which we have no occasion to assess, that Memoirs has the requisite prurient appeal and is patently offensive, but has only a minimum of social value, the circumstances of production, sale, and publicity are relevant in determining whether or not the publication or distribution of the book is constitutionally protected.... In this proceeding, however, the courts were asked to judge the obscenity of Memoirs in the abstract, and *258 the declaration of obscenity was neither **622 aided nor Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 22 limited by a specific set of circumstances of production, sale, and publicity. All possible uses of the book must therefore be considered, and the mere risk that the book might be exploited by panderers because it so pervasively treats sexual matters cannot alter the fact... that the book will have redeeming social importance in the hands of those who publish or distribute it on the basis of that value." 383 U.S., at 420-421, 86 S.Ct., at 978-979 (footnote omitted). Ginzburg was decided before our landmark Miller decision, but we have consistently applied its holding post-Miller. SeeHamlingv. United States, 418 U.S. 87, 130, 94 S.Ct. 2887, 2914, 41 L.Ed.2d 590 (1974); Splawn v. California, 431 U.S. 595, 597-599,97 S.Ct. 1987, 1989-1990, 52 L.Ed.2d 606 (1977); Pinkiis v. United States, 436 U.S. 293, 303-304, 98 S.Ct. 1808, 1814-1815, 56 L.Ed.2d 293 (1978). Although Ginzburg narrowly involved the question whether particular publications were obscene, the foundation for its holding is that "the sordid business of pandering," Ginzburg, supra, 383 U.S., at 467, 86 S.Ct., at 945, is constitutionally unprotected—that the sale of material "solely to produce sexual arousal ... does not escape regulation because [the material] has been dressed up as speech, or in other contexts might be recognized as speech." 383 U.S., at 474, n. 17,86 S.Ct., at 949, n. 17. But just as Miller established some objective criteria concerning what particular publications can be regarded as "appealing to the prurient interest," it impliedly established some objective criteria as to what stock-in-trade can be the raw material (so to speak) of pandering. Giving this limitation full scope, it seems to me that Ginzburg, read together with Miller, establishes at least the following: 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. In my view that suffices to sustain the Dallas ordinance. *259 III In evaluating the Dallas ordinance under the principles I have described, we must of course give it the benefit of any "limiting construction [that] has been or could be placed" on its text. Broadrick v. Oklahoma, 413 U.S. 601,613,93 S.Ct. 2908,2916,37 L.Ed.2d 830 (1973). Moreover, we cannot sustain the present facial attack unless the ordinance is "substantially overbroad," id., at 615,93 S.Ct, at 2918 (emphasis added), that is, "unless it reaches a substantial number of impermissible applications," New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348,3362,73 L.Ed.2d 1113 (1982), "judged in relation to the statute's plainly legitimate sweep," Broadrick, supra, 413 U.S., at 615, 93 S.Ct., at 2918. Favorably construed, the Dallas ordinance regulates only the business of pandering, as I have defined it above. It should be noted, to begin with, that the depictions, descriptions, and displays that cause any of the businesses before us to qualify as a "sexually oriented business" must be sexually explicit in more than a minor degree. What is at issue here is not the sort of nude photograph that might commonly appear on a so-called "pin-up calendar" or "men's magazine." The mere portrayal of the naked human body does not qualify unless (in the definition of adult cabaret, adult theater, and nude model studio) it is featured live. Qualifying depictions and descriptions do not include human genitals, but only human genitals in a state of sexual arousal, the fondling of erogenous zones, and normal or perverted sexual acts. In addition, in order to qualify for regulation under the ordinance the business that provides such live nudity or such sexually explicit depictions or descriptions must do so "as one of its principal business purposes" (in the case of adult bookstores and adult video stores) or "regularly" (in the case of adult **623 motion picture theaters, adult cabarets, and adult theaters). The adverb "regularly" can mean "constantly, continually, steadily, sustainedly," Roget's International Thesaurus § 135.7, p. 77 (4th ed. 1977), and also "in a... methodical way," Webster's Third New International Dictionary 1913 (1981). I think it can reasonably be interpreted *260 in the present context to mean a continuous presentation of the sexual material as one of the very objectives of the commercial enterprise. Similarly, the phrase "as one of its principal business purposes" can connote that the material containing the specified depictions and descriptions does not merely account for a substantial proportion of sales volume but is also intentionally marketed as material of that character. All of the establishments at issue, therefore, share the characteristics that they offer (1) live nudity or hardcore sexual material, (2) as a constant, intentional objective of their business. But there is still more. With the single exception of "adult motion picture theater," the descriptions of all the establishments at issue contain some language that suggests a requirement that the business hold itself forth to the public precisely as a place where sexual stimulation of the described sort can be obtained. Surely it would be permissible to interpret the phrase "as one of its principal business purposes" in the definition of "adult bookstore or adult video store" to require such holding forth. A business can hardly have as a principal purpose a line of commerce it does not even promote. Likewise, the portion of the definitions of "adult cabaret" and "adult theater" which requires that they regularly "feature" the described sexual material suggests that it must not Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 23 merely be there but must be promoted or marketed as such. The definition of nude model studio, while containing no such requirement, is subject to a defense which contains as one of its elements that the structure where the studio is located "has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing." Dallas City Code § 41A-21(d)(3)(A) (1986). Even the definitions of the two categories of enterprises not at issue in this case, "escort agencies" and "sexual encounter centers," contain language that arguably requires a "holding forth" (a "primary business purpose" requirement). Given these indications of the importance of "holding forth" contained *261 in all except one of the definitions, it seems to me very likely—especially if that should be thought necessary to sustain the constitutionality of the measure-that the Dallas ordinance in all its challenged applications would be interpreted to apply only to businesses that not only (1) offer live nudity or hardcore sexual material, (2) as a constant and intentional objective of their business, but also (3) seek to promote it as such. It seems to me that any business that meets these requirements can properly be described as engaged in "the sordid business of pandering," and is not protected by the First Amendment. Indeed, even the first two requirements alone would suffice to sustain the ordinance, since it is most implausible that any enterprise which has as its constant intentional objective the sale of such material does not advertise or promote it as such; if a few such enterprises bent upon commercial failure should exist, they would certainly not be numerous enough to render the ordinance substantially overbroad. The Dallas ordinance's narrow focus distinguishes these cases from Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), in which we held unconstitutional a municipal ordinance that prohibited all businesses offering live entertainment, including but not limited to nude dancing. That ordinance was substantially overbroad because, on its face, it prohibited "a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments." Id., at 65, 101 S.Ct., at 2181. The Dallas ordinance, however, targets only businesses engaged in unprotected activity. **624 Even if it were possible to conceive of a business that could meet the above-described qualifications and yet be engaged in First Amendment activities rather than pandering, we do not invalidate statutes as overbroad on the basis of imagination alone. We have always held that we will not apply that "strong medicine" unless the overbreadth is both "real" and "substantial." Broadrickv. Oklahoma, 413 U.S., at 613, 615, 93 S.Ct, at 2916-17, 2917- 18. I think we must sustain the current ordinance just as we sustained the statute at issue in New York v. Ferber, supra, *262 which forbade the distribution of materials depicting minors in a "sexual performance." The state court had applied overbreadth analysis because of its "understandable] concer[n] that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute." Id., at 773, 102 S.Ct, at 3363. We said: " [ W]e seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on 'lewd exhibitions] of the genitals.' Under these circumstances, § 263.15 is 'not substantially overbroad and ... whatever overbreadth may exist should be cured through a case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.' Broadrick v. Oklahoma, 413 U.S,at615-616 [93 S.Ct,at2917-2918]." Id.. 458 U.S., at 773-774, 102 S.Ct, at 3363. The legitimate reach of the Dallas ordinance "dwarfs its arguably impermissible applications." Id., at 773, 102 S.Ct, at 3363. To reject the present facial attack upon the ordinance is not, of course, to deprive someone who is not engaged in pandering and who is somehow caught within its provisions (if that could possibly occur) from asserting his First Amendment rights. But that eventuality is so improbable, it seems to me, that no substantial quantity of First Amendment activity is anticipatorily "chilled." The Constitution is adequately safeguarded by conducting further review of this reasonable ordinance as it is applied. Justice O'CONNOR'S opinion correctly notes that respondents conceded that the materials sold are protected by the First Amendment. Ante, at 603. But they did not concede that the activity of pandering at which the Dallas ordinance is directed is constitutionally protected. They did not, to be *263 sure, specifically argue Ginzburg, or suggest the complete proscribability of these businesses as a basis for sustaining their manner of licensing them. But we have often sustained judgments on grounds not argued— particularly in the area of obscenity law, where our jurisprudence has been, let us say, not entirely predictable. In Ginzburg itself, for example, the United States did not argue that the convictions could be upheld on the pandering theory the Court adopted, but only that the materials sold were obscene under Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 24 Roth. Brief for United States in Ginzburg v. United States, O.T.1965, No. 42, p. 18. In Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), one of the companion cases to Ginzburg, the State of New York defended the convictions under Roth and explicitly disagreed with those commentators who would determine obscenity by looking to the "intent of the disseminator," rather than "character of the material." Brief for Appellee in Mishkin v. New York, O.T.1965, No. 49, p. 45, and n. See also Brief for Appellee in Memoirs v. Attorney General of Massachusetts, O.T.1965, No. 368, p. 17 (defending convictions under Roth and Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962)). Likewise in Roth, where we held that the test for obscenity was appeal to prurient interest, 354 U.S., at 489,77 S.Ct., at 1311, the United States had argued that **625 obscenity was established if the material "constitutes a present threat to the morals of the average person in the community." Brief for United States in Roth v. United States, O.T.1956,No. 582, p. 100. And no one argued that the Miller Court should abandon the "utterly without redeeming social value" test of the Memoirs plurality, but the Court did so nevertheless. Compare 413 U.S., at 24-25,93 S.Ct., at 2614-16, with Brief for Appellee in Miller v. California, O.T.I972, No. 70-73, pp. 26-27. The mode of analysis I have suggested is different from the rigid test for obscenity that we apply to the determination whether a particular book, film, or performance can be banned. The regulation here is not directed to particular *264 works or performance, but to their concentration, and the constitutional analysis should be adjusted accordingly. What Justice STEVENS wrote for the plurality in American Mini Theatres is applicable here as well: "[W]e learned long ago that broad statements of principle, no matter how correct in the context in which they are made, are sometimes qualified by contrary decisions before the absolute limit of the stated principle is reached." 427 U.S., at 65, 96 S.Ct., at 2450. The prohibition of concentrated pornography here is analogous to the prohibition we sustained in American Mini Theatres. There we upheld ordinances that prohibited the concentration of sexually oriented businesses, each of which (we assumed) purveyed material that was not constitutionally proscribable. Here I would uphold an ordinance that regulates the concentration of sexually oriented material in a single business. The basis of decision I have described seems to me the proper means, in Chief Justice Warren's words, "to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments." Jacobellisv. Ohio, 378 U.S. 184,199, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964) (dissenting opinion). It entails no risk of suppressing even a single work of science, literature, or art—or, for that matter, even a single work of pornography. Indeed, I fully believe that in the long run it will expand rather than constrict the scope of permitted expression, because it will eliminate the incentive to use, as a means of preventing commercial activity patently objectionable to large segments of our society, methods that constrict unobjectionable activity as well. For the reasons stated, I respectfully dissent. 110 S.Ct. 596, 493 U.S. 215, 107 L.Ed.2d 603, 58 USLW4079 Briefs and Other Related Documents (Back to top) • 1989 WL 1126898 (Appellate Brief) Reply Brief of Petitioners FW/PBS, et al. (Aug. 18, 1989) • 1989 WL 1126903 (Appellate Brief) Reply Brief of Petitioners M.J.R., Inc., et al. (Aug. 18, 1989) • 1989 WL 1126895 (Appellate Brief) Brief Amicus Curiae of the National Institute of Municipal Law Officers in Support of Respondent, City of Dallas, Texas (Jul. 21,1989) • 1989 WL 1126897 (Appellate Brief) Brief of the U.S. Conference of Mayors, National Conference of State Legislatures, International City Management Association, National Association of Counties, National Governors' Association, National League of Cities, and Council of State Governmen ts as Amici Curiae in Support of Respondents (Jul. 21,1989) • 1989 WL 1126890 (Appellate Brief) Brief of Amicus Curiae Children's Legal Foundation (Jul. 20, 1989) • 1989 WL 1126893 (Appellate Brief) Brief of Respondents City of Dallas, et al. (Jul. 20, 1989) • 1989 WL 1126900 (Appellate Brief) Brief of Petitioners M.J.R., Inc., et al. (May. 27, 1989) • 1989 WL 1126889 (Appellate Brief) Brief of Amicus Curiae American Family Association, Inc. in Support of Respondents (May. 11, 1989) Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 25 • 1989 WL 1126917 (Appellate Brief) Brief for Petitioner (May. 01, 1989) • 1989 WL 1126884 (Appellate Brief) Brief of Amicus Curiae PHE, Inc., in Support of Petitioners (Apr. 13, 1989) • 1989 WL 1126886 (Appellate Brief) Brief of American Booksellers Association, Inc., Association of American Publishers, Council for Periodical Distributors Associations, International Periodical Distributors Association, National Association of College Stores, Inc. and the Freedom to Read Foundation, as Amici Curiae, in Support of Petitioners. (Apr. 13, 1989) • 1988 WL 1025618 (Appellate Brief) Brief of Petitioners FW/PBS, et al. (Oct. Term 1988) • 1988 WL 1025643 (Appellate Brief) Petitioners' Reply Brief (Sep. 01, 1988) • 1988 WL 1025614 (Appellate Brief) Petitioners' Reply Brief (Aug. 08, 1988) • 1988 WL 1025612 (Appellate Brief) Motion for Leave to File a Brief Amicus Curiae in Support of the City of Dallas and Brief Amicus Curiae of Citizens for Decency through Law, Inc. (Jul. 13,1988) END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 26 395F.3dlll4 Page 1 395 F.3d 1114,2005 WL 159576 (9th Cir.(CaL)), 5 Cal. Daily Op. Serv. 718,2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL))) United States Court of Appeals, Ninth Circuit. Bill Badi GAMMOH, dba Taboo Theater aka Pelican Theater; Leslie West; Armine Michelle Bedrosian; Christine Johanna Fener; Charbonesse Garrett; Heather Eloise Elam; Stacy Joy Andre; Meghann Lara Ann Onselen, Plaintiffs- Appellants, v. CITY OF LA HABRA, Defendant-Appellee. No. 04-56072. Argued and Submitted Nov. 1,2004. Filed Jan. 26, 2005. Background: Owner of adult entertainment club and dancer-employees brought action challenging constitutionality of city ordinance that required adult cabaret dancers to remain two feet away from patrons during performances. The United States District Court for die Central District of California, Gary L. Taylor, J., dismissed certain claims, and granted summary judgment in favor of city on others. Plaintiffs appealed. Holdings: The Court of Appeals, Tallman, Circuit Judge, held that: (1) ordinance was not void for vagueness; (2) ordinance was not overbroad; (3) plaintiffs failed to demonstrate that ordinance violated Takings Clause; (4) ordinance was not complete ban on protected expression; (5) ordinance regulated expression that was sexual or pornographic in nature, as would support application of the intermediate scrutiny standard, for purpose of First Amendment challenge; (6) secondary effects of adult cabarets were city's primary concern in enacting ordinance, as would support application of the intermediate scrutiny standard; (7) ordinance was narrowly tailored to serve substantial government interest of preventing secondary effects of adult businesses; and (8) ordinance did not violate First Amendment guarantee of freedom of expression. West Headnotes Affirmed. [1] Federal Courts 170Bk776 Most Cited Cases Court of Appeals reviews the district court's ruling on the constitutionality of a city ordinance de novo. [2] Criminal Law €=>13.1(1) 110kl3.1(l) Most Cited Cases To survive a vagueness challenge, a regulation must define the criminal offense widi sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. [3] Constitutional Law €=^82(4) 92k82(4) Most Cited Cases [3] Municipal Corporations €=>594(2) 268k594(2) Most Cited Cases A greater degree of specificity and clarity is required in the language of a municipal ordinance when First Amendment rights are at stake than would otherwise be required to survive a vagueness challenge. U.S.C.A. Const. Amend. 1. [4] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [4] Theaters and Shows C;:;;;>3.50 376k3.50 Most Cited Cases City ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, and defining "adult cabaret dancer" as a dancer performing at an adult cabaret, who was sexually-oriented dancer, exotic dancer, stripper, or similar dancer, who focused the performance on or emphasized the dancer's breasts, genitals, or buttocks, on a regular and substantial basis, was not void for vagueness; although some terms were subjective, the definition used a combination of terms, which provided sufficient clarity, to give dancers notice as to who qualified as an "adult cabaret dancer," for purpose of determining application of the two-foot rule. > 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 2 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL)), 5 Cal. Daily Op. Serv. 718,2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL))) [5] Constitutional Law €=90.4(5) 92k90.4(5) Most Cited Cases [5] Theaters and Shows €=3.50 376k3.50 Most Cited Cases City ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, and defining "adult cabaret dancer" as a dancer performing at an adult cabaret, who was sexually-oriented dancer, exotic dancer, stripper, or similar dancer, who focused the performance on or emphasized the dancer's breasts, genitals, or buttocks, on a regular and substantial basis, was not overbroad; performances occurring outside of an adult cabaret or that did not have a sexual emphasis were unaffected by ordinance, and there was no realistic danger that ordinance would significantly compromise rights protected under the First Amendment. U.S.C.A. Const. Amend. 1. [6] Constitutional Law €=>82(4) 92k82(4) Most Cited Cases The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. [7] Eminent Domain €=81.1 148k81.1 Most Cited Cases In order to state a claim under the Takings Clause, a plaintiff must first demonstrate that he possesses a property interest that is constitutionally protected. U.S.C.A. ConstAmend. 5. [8] Eminent Domain €=81.1 148k81.1 Most Cited Cases Owner of adult entertainment club and club dancers failed to demonstrate that city ordinance requiring adult cabaret dancers to remain two feet away from patrons during performances violated the Takings Clause, absent identification of a property interest with which the ordinance interfered. U.S.C.A. Const.Amend. 5. [9] Federal Courts €=776 170Bk776 Most Cited Cases [9] Federal Courts €=802 170Bk802 Most Cited Cases Court of Appeals reviews the district court's decision to grant summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [10] Constitutional Law €=90.4(5) 92k90.4(5) Most Cited Cases [10] Theaters and Shows €=3.50 376k3.50 Most Cited Cases City ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, was not a complete ban on protected expression, for purpose of determining if ordinance violated First Amendment's guarantees of freedom of speech and expression; ordinance required that dancers project their erotic message from a slight distance, but did not ban erotic dancing altogether. U.S.C.A. Const.Amend. 1. [11] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Content-based regulations are normally subject to strict scrutiny, for purpose of determining if regulations violate the First Amendment's guarantee of freedom of expression. U.S.C.A. Const.Amend. 1. [12] Constitutional Law €=90.4(1) 92k90.4(l) Most Cited Cases Content-based regulations may be analyzed under intermediate scrutiny, rather than strict scrutiny, for purpose of determining violation of the First Amendment's guarantee of freedom of expression, if two conditions are met: (1) the ordinance regulates speech that is sexual or pornographic in nature, and (2) the primary motivation behind the regulation is to prevent secondary effects. U.S.C.A. Const.Amend. 1. [13] Constitutional Law €=590.4(5) 92k90.4(5) Most Cited Cases City ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, and defining "adult cabaret dancer" as a dancer performing at an adult cabaret, who was sexually-oriented dancer, exotic dancer, stripper, or i2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 3 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL))) similar dancer, who focused the performance on or emphasized the dancer's breasts, genitals, or buttocks, on a regular and substantial basis, regulated expression that was sexual or pornographic in nature, as would support application of the intermediate scrutiny standard, rather than the strict scrutiny standard, for purpose of First Amendment challenge to ordinance; although dancers wore minimal clothing when performing for individual patrons off stage, dancers performed nude on stage, and the focus of the performance was sexual. U.S.C.A. Const.Amend. 1. [14] Constitutional Law €==>90.4(1) 92k90.4(l) Most Cited Cases Court of Appeals generally accepts that the purpose of a regulation on adult businesses is to combat secondary effects, as would warrant application of intermediate scrutiny standard for purpose of First Amendment challenge, if the enactment can be justified without reference to speech. U.S.C.A. Const.Amend. 1. [15] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases To determine the purpose of a municipal ordinance regulating adult businesses, in order to decide whether to apply strict scrutiny or intermediate scrutiny, the Court of Appeals looks to objective indicators of intent. [16] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases Secondary effects of adult businesses were city's primary concern in enacting ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, as would support application of the intermediate scrutiny standard, rather than the strict scrutiny standard, for purpose of First Amendment challenge to ordinance; ordinance stated that it was necessary for protection of the welfare of the public, as result of potential negative secondary effects, including crime, protection of retail trade, and maintenance of property values, and the two-foot rule was logically linked to preventing such secondary effects. U.S.C.A. Const.Amend. 1. [17] Constitutional Law €=?90(3) 92k90(3) Most Cited Cases A statute will survive intermediate scrutiny, in a First Amendment challenge, if it: (1) is designed to serve a substantial government interest, (2) is narrowly tailored to serve that interest, and (3) leaves open alternative avenues of communication. U.S.C.A. Const.Amend. 1. [18] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [18] Theaters and Shows €=>3.50 376k3.50 Most Cited Cases City demonstrated connection between its ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, and the secondary effects that the ordinance was intended to address, including crime, protection of retail trade, maintenance of property values, demonstrating that ordinance was designed to serve substantial government interest, for purpose of intermediate scrutiny analysis of First Amendment challenge; city was presented with 17 studies on secondary effects of adult businesses, declarations from vice officers, interviews with nude dancers, and a presentation on the harmful effects of pornography, and there was no requirement that city rely only on evidence targeting the exact problem of exotic dancing. U.S.C.A. Const.Amend. 1. [19] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases So long as whatever evidence the city relies upon to demonstrate that an ordinance regulating adult businesses serves substantial government interests is reasonably believed to be relevant to the problem that the city addresses, it is sufficient to support the ordinance, for purpose of First Amendment challenge under intermediate scrutiny standard. U.S.C.A. Const. Amend. 1. [20] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [20] Theaters and Shows 376k3.50 Most Cited Cases City ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, was narrowly tailored to serve © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 4 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL))) substantial government interest of preventing secondary effects of adult businesses, including crime, protection of retail trade, maintenance of property values, for purpose of intermediate scrutiny analysis of First Amendment challenge; ordinance would prevent exchange of money or drugs and touching of patrons. U.S.C.A. ConstAmend. 1. [21] Constitutional Law €= 92k90.4(5) Most Cited Cases 9.4(5) [21] Theaters and Shows €=>3.50 376k3.50 Most Cited Cases City ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, left open alternative avenues of expression, for purpose of determining if ordinance violated First Amendment's guarantees of freedom of speech and expression, under intermediate scrutiny standard; dancers could still convey their erotic message fromaslight distance. U.S.C.A. Const.Amend. 1. [22] Constitutional Law €=?90.4(5) 92k90.4(5) Most Cited Cases [22] Theaters and Shows €=>3.50 376k3.50 Most Cited Cases City ordinance, requiring adult cabaret dancers to remain two feet away from patrons during performances, did not violate First Amendment guarantee of freedom of expression; ordinance was thoroughly researched and narrowly-tailored to address substantial government interest of preventing secondary effects of adult businesses, such as crime, and ordinance left alternative channels of communication open by allowing dancers to perform at slight distance. U.S.C.A. ConstAmend. 1. *1118 Scott W. Wellman and Stuart Miller, Wellman & Warren, Laguna Hills, CA, for the plaintiffs-appellants. Deborah J. Fox and Dawn A. Mclntosh, Fox & Sohagi, Los Angeles, CA, for the defendant-appellee. Scott D. Bergthold, Chattanooga, TN, for Amicus Curiae League of California Cities. Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-03- 00911-GLT. Before: TASHIMA, FISHER, and TALLMAN, Circuit Judges. TALLMAN, Circuit Judge. **1 This case involves constitutional challenges to a city ordinance requiring "adult cabaret dancers" to remain two feet away from patrons during performances. The district court rejected these challenges by dismissing some of the Appellants' claims on the pleadings and granting summary judgment as to other claims. We denied emergency motions for a stay of enforcement of the Ordinance pending appeal and now affirm. I The City of La Habra's (City's) Municipal Ordinance 1626 ("Ordinance") regulates adult businesses. The first section of the Ordinance contains extensive findings that adult businesses generate crime, economic harm, and the spread of sexually transmitted diseases. These findings are based on studies and police declarations from other jurisdictions, federal and state judicial opinions, and public health data from surrounding southern California counties. Ordinance, § 1. Other sections of the Ordinance contain regulations purporting to address the secondary effects described in the first section, including a prohibition of physical contact between patrons and performers (the "no-touch rule") and a requirement that adult cabaret dancers perform at least two feet away from their patrons (the "two-foot rule"). Ordinance, §§ 4, 7. The Appellants are Bill Badi Gammoh, the owner of an adult establishment in the City, several dancers at Gammoh's club, and a dancer who has been offered employment at Gammoh's club but has not yet accepted it. Gammoh's establishment, which does not serve alcoholic beverages, features entertainment by dancers who perform nude on stage and then dress in minimal clothing before offering one-on-one offstage dances. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 5 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal)), 5 Cal. Daily Op. Serv. 718,2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal.))) [FN1] The Appellants do not challenge the provisions of the Ordinance governing on-stage dancing and other aspects of the * 1119 operation of an adult cabaret; they challenge only the two-foot rule. FN1. Early in this litigation before the district court the Appellants used the term "lap dance" to refer to these performances. They later distanced themselves from this term, preferring "clothed proximate dancing" instead. We reference these individual, close-up performances using the term "offstage dancing" because the City regulates nude on-stage performances separately from partially-clothed offstage performances and it is the latter set of regulations that are challenged here. Three weeks after the City Council passed the Ordinance, the Appellants filed their constitutional challenge in the Superior Court of California for Orange County. The case was subsequently removed to the United States District Court for the Central District of California. The Appellants were unsuccessful before the district court. In addition to other rulings that the Appellants do not challenge on appeal, the district court dismissed the Appellants' overbreadth argument and part of their vagueness challenge with prejudice, and entered summary judgment in favor of the City on their regulatory takings claim, a First Amendment challenge, and the remaining vagueness argument. The Appellants pursue their vagueness, overbreadth, takings, and free speech and expression claims on appeal. II [ 1 ] The Ordinance's two-foot rule applies exclusively to "adult cabaret dancers." The Ordinance defines an "adult cabaret dancer" as: any person who is an employee or independent contractor of an "adult cabaret" or "adult business" and who, with or without any compensation or other form of consideration, performs as a sexually-oriented dancer, exotic dancer, stripper, go-go dancer or similar dancer whose performance on a regular and substantial basis focuses on or emphasizes the adult cabaret dancer's breasts, genitals, and or buttocks, but does not involve exposure of "specified anatomical areas" or depicting or engaging in "specified sexual activities." Adult cabaret dancer does not include a patron. **2 Ordinance, § 4. The district court rejected the Appellants' assertion that this definition is vague and overbroad because it contains subjective terms. We review the district court's ruling de novo. See United States v. Rodriguez, 360 F.3d 949,953 (9th Cir.2004); United States v. Linick, 195 F.3d 538, 541 (9th Cir.1999). [2][3] To survive a vagueness challenge, a regulation must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855,75 L.Ed.2d903 (1983); seealso United States v. Adams, 343 F.3d 1024, 1035 (9th Cir.2003), cert, denied, — U.S. —, 124 S.Ct. 2871, 159 L.Ed.2d 779 (2004). A greater degree of specificity and clarity is required when First Amendment rights are at stake. Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1057 (9th Cir.1986). The Appellants argue that the subjective language used to define an "adult cabaret dancer" makes the definition, and thus the Ordinance, unconstitutionally vague. Cf. City of Chicago v. Morales, 527 U.S. 41, 56-64,119 S.Ct. 1849,144 L.Ed.2d 67 (1999) (holding a provision criminalizing loitering, which is defined as "to remain in any one place with no apparent purpose," void for vagueness because the provision was "inherently subjective because its application depends on whether some purpose is 'apparent' to the officer on the scene"); Tucson Woman's Clinic v. Eden, 379 F.3d 531,554- 55 (9th Cir.2004) (holding a statute requiring physicians to treat patients "with consideration, respect, and full recognition of the patient's dignity and individuality" void for vagueness because it "subjected physicians to sanctions based not on their own objective behavior, but on the subjective viewpoint of others") (internal quotation and citation omitted); Free Speech Coalition v. Reno, 198F.3d 1083,1095 (9th Cir.1999), © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 6 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL)), 5 Cal. Daily Op. Serv. 718,2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaI.))) affd sub nom. *1120Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (holding a provision that criminalized sexually explicit images that "appearf ] to be a minor" or "convey the impression" that a minor is depicted unconstitutionally vague because it was unclear "whose perspective defines the appearance of a minor, or whose impression that a minor is involved leads to criminal prosecution"). Several of the terms within the Ordinance's definition of "adult cabaret dancer"~"sexually oriented dancer," "exotic dancer," "similar dancer," "regular basis," and "focuses on or emphasizes"--are unarguably subjective. However, two main factors distinguish the Ordinance from cases such as Morales, Tucson Woman's Clinic, and Free Speech Coalition, where the regulations were held to be too subjective to give notice to ordinary people or guidance to law enforcement: 1) the subjective terms in the Ordinance are used in combination with other terms, and 2) the subjective terms do not define prohibited conduct. **3 [4] This circuit has previously recognized that otherwise imprecise terms may avoid vagueness problems when used in combination with terms that provide sufficient clarity. See Kev, 793 F.2d at 1057 (holding that an ordinance prohibiting dancers from "caressing" and "fondling" patrons was not vague "in the context of the other definitions provided in the ordinance" at issue). In this case, the district court recognized that the two-foot rule applies only to "adult cabaret dancers" who meet the following five qualifications: 1) the individual must perform at an "adult cabaret"; [FN2] 2) the performer must perform as a sexually-oriented dancer, exotic dancer, stripper, or similar dancer; 3) the performance must focus on or emphasize the performer's breasts, genitals, and/or buttocks; 4) the performance must have this focus or emphasis on a regular basis; and 5) the performance must have this focus or emphasis on a substantial basis. Thus, an "adult cabaret dancer" is defined by a combination of features, not by anyone subjective term. The combined terms outline the performer, the place of the performance, and the type of performance. Each of the five limitations provides context in which the other limitations may be clearly understood. The definition as a whole gives notice to performers and ample guidance to law enforcement officers as to who is and who is not an "adult cabaret dancer." FN2. The City of La Habra Code defines "adult cabaret" as: a nightclub, bar or other establishment (whether or not serving alcoholic beverages) which features live performances by topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar entertainers, and where such performances are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." City of La Habra Code § 18.60.010. Furthermore, although the definition of an "adult cabaret dancer" contains subjective terms, the prohibited conduct is defined objectively. It is not illegal to be an adult cabaret dancer; only to be an adult cabaret dancer performing within two feet of a patron. This distinction introduces additional objectivity into the Ordinance because the act that is prohibited—being within two feet of a patron-is certainly not vague. [FN3] FN3. The appellant dancers argue that they will not relinquish their proximity to patrons, and thus need to know how not to be "adult cabaret dancers." In other words, they assert that they need to know how to continue their sexually expressive performances within two feet of their patrons. This, however, is exactly what the Ordinance prohibits. The fact that the regulation will necessarily alter the dancers' conduct does not make it vague. *1121 Vagueness doctrine cannot be understood in a manner that prohibits governments from addressing problems that are difficult to define in objective terms. See Graynedv. City ofRockford, 408 U.S. 104,110,92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("we can never expect mathematical certainty from our language"). In 12005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page? 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal.)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL))) this case, a combination of subjective and objective terms is used to give a clear picture of an "adult cabaret dancer" and the conduct prohibited of such a dancer is defined objectively. Thus, the definition of "adult cabaret dancer" is sufficiently clear to give notice to performers and guidance to law enforcement. See Cal. Teachers Ass'n v. State Bd. ofEduc., 271 F.3d 1141, 1150 (9th Cir.2001) ("perfect clarity is not required even when a law regulates protected speech"). B [5] The Appellants claim that the definition of "adult cabaret dancer" is overbroad because it could apply to mainstream or avant-garde performances as well as adult entertainment. The Supreme Court and this circuit have emphasized that "where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186, 1198 (9th Cir.2004) (quoting Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (internal quotations omitted)). In this case, potentially overbroad applications of the Ordinance are minimal because performances occurring outside of an adult cabaret are unaffected by the Ordinance, and those occurring in an adult cabaret and containing the sexual emphasis that defines an "adult cabaret dancer" are within the Ordinance's legitimate sweep. **4 The Appellants were unable to cite any example of a performance that would fall within the Ordinance to which application of the Ordinance's restrictions would be overbroad. The examples proffered—including a duet, a tango, and an Elvis impersonator—are unpersuasive. A.pas de deux, a ballroom dance, and an impersonation of the King each escapes the two-foot limitation unless performed in an establishment which features live performances by "topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers or similar entertainers" characterized by an emphasis on " 'specified sexual activities' or 'specified anatomical areas.' " See supra note 2 (quoting City of La Habra Code § 18.60.010(C)). However, if they occur within an adult cabaret and the performer meets all five prongs of the definition of "adult cabaret dancer," these performances fall within the statute's legitimate sweep. Regardless of whether the dance is a tango or more typical adult entertainment, requiring a two-foot separation between dance partners in this highly-charged sexual atmosphere may reasonably advance the City's legitimate goal of reducing secondary effects of adult entertainment. The two-foot rule may, for example, provide a line of sight for enforcement of the "no touch" rule and prevent exchanges of money and drugs. When performed in an adult cabaret, these performances, even if done in an Elvis costume, are thus within the statute's legitimate reach. [6] Even if the Appellants were able to identify performances that fulfill all aspects of an "adult cabaret dancer" but are not tied to the secondary effects the statute is designed to address, "the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge." *H22Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,800,104 S.Ct. 2118,80L.Ed.2d 772 (1984). Although we recognize that "the First Amendment needs breathing space," Worldwide Video, 368 F.3d at 1198, in this situation there is no "realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Taxpayersfor Vincent, 466 U.S. at 801, 104 S.Ct. 2118. If an overbroad application of the Ordinance exists, it is insubstantial when "judged in relation to the statute's plainly legitimate sweep." See Broadrick v. Oklahoma, 413 U.S. 601, 612-15, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Ill The district court dismissed the Appellants' regulatory takings claim on summary judgment. We review this decision de novo. Cal. First Amend. Coalition v. Calderon, 150F.3d976,980(9thCir.l998). We "must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 8 395 F.3d 1114,2005 WL 159576 (9th Cir.(CaL)), 5 Cal. Daily Op. Serv. 718,2005 Daily Journal D.A.R. 999 (Cite as: 395 F3d 1114, 2005 WL 159576 (9th Cir.(Cal.))) any genuine issues of material fact and whether the district court correctly applied the substantive law." Id. [7][8] The takings clause of the Fifth Amendment protects private property from being taken for public use without just compensation. U.S. CONST, amend. V (emphasis added). "In order to state a claim under the Takings Clause, a plaintiff must first demonstrate that he possesses a 'property interest' that is constitutionally protected." Schneider v. Cal. Dep't Corr., 151 F.3d 1194, 1198 (9th Cir.1998) (internal citation omitted). The Appellants have not here pointed to a "property interest" interfered with by the City of La Habra's regulation of the dancers' conduct. [FN4] The district court thus properly dismissed the Appellants' takings claim. FN4. Certainly Mr. Gammoh and the dancers may suffer economic losses if patrons are unwilling to pay for dances that must be at least two feet away from customers. Their claim of right to this stream of income was essentially the basis of the vested rights argument that the Appellants made before the district court. The district court rejected this argument on summary judgment, and Appellants did not appeal that ruling. IV **5 [9] The Appellants argue that the Ordinance violates the First Amendment's guarantees of freedom of speech and expression. The district court evaluated the Ordinance under intermediate scrutiny and determined that the Appellants' First Amendment rights had not been violated. We review the district court's decision to grant summary judgment de novo, viewing the evidence in the light most favorable to the Appellants and looking for genuine issues of material fact. SeeCalderon, 150 F.3d at 980. [10] First, we must determine whether the Ordinance is a complete ban on protected expression. See Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1164 (9th Cir.2003) (plurality opinion) (citing City of LosAngelesv. AlamedaBooks, Inc., 535 U.S. 425,434, 122 S.Ct. 1728,152 L.Ed.2d 670 (2002), and Renton v. Playtime Theatres, Inc., 475U.S.41,46,106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). We conclude that it is not. The two-foot rule merely requires that dancers give their performances from a slight distance; it does not prohibit them from giving their performances altogether. The rule limits the dancers' freedom to convey then" erotic message but does not prohibit them from performing erotic one-on-one-dances for patrons. See *1123Renton, 475 U.S. at 46, 106 S.Ct. 925. Because the dancers' performances may continue, albeit from a slight distance, this case stands in sharp contrast to our recent decision in Dream Palace v. County of Maricopa, where we applied strict scrutiny to an ordinance regulating adult businesses because even the county conceded that the ordinance was a complete ban on nude and semi-nude dancing. 384 F.3d 990, 1018 (9th Cir.2004). Here, the Ordinance prescribes where offstage dancing can occur (at least two feet away from patrons) but it does not ban any form of dance. The Appellants argue that close propinquity to patrons is a key element of the dancers' expressive activity, and that the Ordinance is therefore a complete ban on a form of expression: "proximate dancing." This argument has been made and rejected in this circuit. See Colacurcio v. City of Kent, 163 F.3d 545,549,555 (9th Cir.1998) (rejecting the argument that because "table dancing" is a unique form of dancing requiring proximity, a ten-foot separation requirement is a complete ban on this form of expression). It is true that if the dancers' expressive activity is considered "erotic dance within two feet of patrons" and not merely "erotic dance," this activity is completely banned. However, virtually no ordinance would survive this analysis: the "expression" at issue could always be defined to include the contested restriction. See id. at 556 (rejecting the idea that the applicable "forum" for a table dance is the area within ten feet of the performer). Protected expression is not so narrowly defined. See Dream Palace, 384 F.3d at 1019-20 (recognizing that the regulations in Renton and its progeny did not "proscribe absolutely certain types of adult entertainment" and instead enacted regulations that "avoid[ed] a total ban on protected expression"). © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 9 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL))) **6 "While the dancer's erotic message maybe slightly less effective from [two] feet, the ability to engage in the protected expression is not significantly impaired." Kev, 793 F.2d at 1061. We hold that the Ordinance is not a complete ban on a protected form of expression. B Next, we must determine what level of scrutiny properly applies. See Ctr. for Fair Pub. Policy, 336 F.3d at 1164. Traditionally, the Court has utilized a distinction between content-based and content-neutral regulations to determine the appropriate level of scrutiny. See e.g., Renton, 475 U.S. at 46-47,106 S.Ct. 925. Time, place, and manner restrictions on adult businesses were considered content-neutral. Id. at 48, 106 S.Ct. 925. [11] Recently, however, the Supreme Court has recognized that virtually all regulation of adult businesses is content-based. See Alameda Books, 535 U.S. at 448,122 S.Ct. 1728 (Kennedy, J., concurring); see also Ctr. for Fair Pub. Policy, 336 F.3d at 1161 (recognizing Justice Kennedys opinion in Alameda Books as controlling because it is the narrowest opinion joining the plurality's judgment). Content-based regulations are normally subject to strict scrutiny. See Simon & Schuster, Inc. v. Members ofN. Y. State Crime Victims Bd., 502 U.S. 105, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (describing the "necessary to serve a compelling state interest" strict scrutiny test). [12] However, designating regulation of adult establishments as content-based does not end the inquiry as to the appropriate standard of review. Content-based regulations may be analyzed under intermediate scrutiny if two conditions are met: 1) the ordinance regulates speech that is sexual or pornographic in nature; and 2) the primary motivation behind the regulation is to prevent secondary effects. Ctr. for Fair Pub. Policy, 336 F.3d at 1164- 65 *1124 (citing Alameda Books, 535 U.S. at 434,448,122 S.Ct. 1728). 1 [13] The Appellants differ from plaintiffs in previous cases regarding the regulation of adult businesses in that they wear minimal clothing for their offstage performances (although they perform nude on stage). The Appellants argue that the dancers' expressive activity is not sexual or pornographic because the dancers are "fully clothed." However, the appellant dancers testified that their outfits for offstage dancing include bikinis and g-strings, sometimes paired with a sheer skirt or top; at the very least, these accouterments stretch the term "fully-clothed." The dancers do cover their breasts and genitalia, but their argument that this removes their performances from the sphere of "sexual speech" ignores the context in which their offstage performances occur—in an adult cabaret, minutes after the dancers have performed nude on stage. See Kev, 793 F.2d at 1061 n. 12 (noting that "consideration of a forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved") (quoting Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 650-51, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981)). **7 There is certainly a point along the continuum where suggestive speech no longer falls within the "sexual or pornographic" exception to the requirement of strict scrutiny. We are mindful that this case pushes us closer to that point than those cases where performers are nude or topless. "Sexual speech" has never been explicitly defined, but the appellant dancers' performances, which "focusf ] on or emphasize[ ] ... breasts, genitals, and or buttocks," occur in adult establishments, are conducted by dancers who also perform nude, and involve minimal clothing, are certainly within the limits of "sexual speech." We therefore review the Ordinance as a regulation of "sexual or pornographic speech" and proceed to consider whether reducing the secondary effects of adult establishments is the Ordinance's primary purpose. [ 14] We generally accept that a regulation's purpose is to combat secondary effects if the enactment can be justified without reference to speech. See Colacurcio, 163 F.3d at 551-52 (citing Kev, 793 F.2d at 1058-59). > 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 10 395 F.3d 1114,2005 WL 159576 (9th Cir.(Cal.)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal.))) We have recognized that "so long as the regulation is designed to combat the secondary effects of [adult] establishments on the surrounding community, namelyf ] crime rates, property values, and the quality of the city's neighborhoods... then it is subject to intermediate scrutiny." Ctr. for Fair Pub. Policy, 336 F.3d at 1164-65 (internal citation and quotation omitted); see also Colacnrcio, 163 F.3d at 551 (9th Cir. 1998) (noting that an ordinance is subject to intermediate scrutiny if its "predominant purpose" is combating secondary effects). For plaintiffs, this is "a difficult standard to overcome." Colacnrcio, 163 F.3dat552. [15][16] To determine the purpose of the Ordinance, we look to "objective indicators of intent." Mat 552; see also Ctr. for Fair Pub. Policy, 336F.3dat 1165. In this case we have the materials that the City Council considered in determining whether to enact the Ordinance and the Ordinance itself. These indicators demonstrate that secondary effects were the City Council's concern. The record indicates that the City Council was presented with several volumes of materials prior to enacting the Ordinance. These included studies of secondary effects, declarations from police officers, reports on sexually transmitted diseases, and *1125 various other evidence. In a report to the City Council, the City Attorney recommended action to address the secondary effects reported in these resources: "[i]n reviewing the City's existing regulations and in light of the extensive existing case law and supporting studies, we conclude that this Ordinance is necessary to reduce and/or preclude these secondary effects." Our review of the materials that the City Council considered indicates that concern about secondary effects, as opposed to the content of the dancers' expression, motivated the challenged Ordinance. The Ordinance itself also demonstrates that the City Council's purpose was to combat secondary effects. The Ordinance states that it is: **8 necessary for the protection of the welfare of the people, as a result of the potential negative secondary effects of adult businesses, including crime, the protection of the city's retail trade, the prevention of blight in neighborhoods and the maintenance of property values, protecting and preserving the quality of the city's neighborhoods and the city's commercial districts, the protection of the city's quality of life, the increased threat of the spread of sexually transmitted diseases, and the protection of the peace, welfare and privacy of persons who patronize adult businesses. Ordinance, § 1(A). This statement of purpose is supported by regulatory provisions that are logically linked to the secondary effects, such as solicitation of prostitution and drug transactions, that the City identified: the Ordinance forbids contact between patrons and performers and, to make this rule enforceable, requires a two-foot separation between patrons and performers. Both the two-foot rule and the no-touching rule are reasonably linked to the secondary effects that the City identifies as its purpose in enacting the Ordinance. We are not persuaded by the Appellants' argument that a speech-reducing motive is demonstrated by the fact that proximity between patrons and dancers is allowed when the dancers are not performing. The City may reasonably have decided that such regulations were impractical or unnecessary. The Appellants presented no evidence to support their speculation that the City chose only to regulate dancers when they are performing because it wished to regulate the performances' expressive content. We are also unpersuaded by the Appellants' argument that a speech-reducing motive is demonstrated by a City employee's testimony that he overheard someone in staff meetings say that they wanted to drive appellant Gammoh out of business. The Appellants presented no evidence that the person who made these comments was on the City Council or affected the Council's decision to pass the Ordinance. Nothing connects this testimony to the process by which the Ordinance was passed. The testimony therefore does not create a genuine issue of material fact as to whether the City's stated goal of preventing secondary effects of adult businesses was its true purpose in enacting the Ordinance. The Appellants have not raised a genuine issue as to the City's motivation in enacting the Ordinance. As © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 11 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(CaL))) Justice Kennedy wrote in Alameda Books, "[t]he ordinance may be a covert attack on speech, but we should not presume it to be so." 535 U.S. at 447, 122 S.Ct. 1728. The objective indicators of the City's intent demonstrate a desire to combat secondary effects, and the Appellants have adduced no evidence that draws this motivation into question. The Ordinance must therefore be evaluated using intermediate scrutiny. [17] A statute will survive intermediate scrutiny if it: 1) is designed to serve a *1126 substantial government interest; 2) is narrowly tailored to serve that interest; and 3) leaves open alternative avenues of communication. Ctr. for Fair Pub. Policy. 336 F.3d at 1166; see also Renton, 475 U.S. at 50, 106 S.Ct. 925. 1 **9 Reducing the negative secondary effects of adult businesses is a substantial governmental interest. See Ctr. for Fair Pub. Policy, 336 F.3d at 1166 ("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."). The Appellants concede that preventing secondary effects is a substantial government interest, but argue that the City's evidence of secondary effects is flawed and inapplicable. We disagree. [18] The pre-enactment record in this case is substantial. Cf. id at 1167-68 (describing the record as " a slim one" and" hardly overwhelming" but cone hiding that the studies and public hearings relied on by the legislature were sufficient to demonstrate a connection between the regulated activity and secondary effects). The City Council was presented with, inter alia, seventeen studies on secondary effects of adult businesses, a summary of some of these studies, the 1986 Attorney General's Report on Pornography, declarations from investigating vice officers, an interview with nude dancers, a presentation on the harmful effects of pornography in nearby Los Angeles, numerous reports on AIDS and other sexually transmitted diseases, and thirty-nine judicial decisions in the area of regulation of adult businesses. These studies and reports meet the City's burden to produce evidence demonstrating a connection between its regulations and the secondary effects that the Ordinance is intended to address. See Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728; Ctr. for Fair Pub. Policy, 336 F.3datll66. Because the City has met this burden, "[i]f 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." Alameda Books, 535 U.S. at 438-39, 122 S.Ct. 1728, cited in Ctr. for Fair Pub. Policy, 336 F.3d at 1160. The Appellants attempt to cast doubt by arguing that the studies on which the City relies are flawed and irrelevant. [ 19] The Appellants' proffered expert declared that the City's evidence was flawed because "systematically collecting police call-for-service information" and adhering to the Appellants' suggested methodological standards were "the only reliable information" that could have supported the City's concern. This is simply not the law. "[S]o long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses [,]" it is sufficient to support the Ordinance. Renton, 475 U.S. at 51 -52,106 S.Ct. 925. [FN5] While we do not *1127 permit legislative bodies to rely on shoddy data, we also will not specify the methodological standards to which their evidence must conform. See id. at 51, 106 S.Ct. 925; see also Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728 (Kennedy, J., concurring) ("As a general matter, courts should not be in the business of second-guessing fact-bound empirical assessments of city planners."). The Appellants have failed to create a genuine issue of material fact as to the reliability of the collection of evidence upon which the City relied. FN5. The Seventh Circuit has succinctly explained why clear proof of secondary effects is not required: A requirement of Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 12 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal.)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal.))) S.Ct. 2786, 125 L.Ed.2d 469 (1993)]-quality evidence would impose an unreasonable burden on the legislative process, and further would be logical only if Alameda Books required a regulating body to prove that its regulation would—undeniably—reduce adverse secondary effects. Alameda Books clearly did not impose such a requirement. G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d 631, 640 (7th Cir.2003). **10 The Appellants also argue that even if the City's evidence is reliable, it is irrelevant because it does not measure the secondary effects of clothed performances. No precedent requires the City to obtain research targeting the exact activity that it wishes to regulate: the City is only required to rely on evidence "reasonably believed to be relevant" to the problem being addressed. Alameda Books, 535 U.S. at 438,122 S.Ct. 1728. The studies upon which the City relied evaluate the secondary effects of a variety of adult businesses~a category encompassing any business that would be affected by the Ordinance—and are therefore unquestionably relevant. The presence or absence of minimal clothing is not relevant to whether separation requirements fulfill the stated purpose of the Ordinance. This circuit recognizes that municipalities may reasonably find that separation requirements serve the interest of reducing the secondary effects of adult establishments. "Buffers" between patrons and performers prevent the exchange of money for prostitution or drug transactions and allow enforcement of "no touching" provisions, which would otherwise be virtually unenforceable. See Colacurcio, 163 F.3d at 554. There is no reason to believe that minimal clothing obviates the need for these measures when the atmosphere is equally charged—money exchanges and touching are no more difficult if the dancer is wearing minimal clothing than if she is partially or fully nude. [FN6] FN6. The City Council was presented with a report documenting an interview with former adult dancers from another jurisdiction in which the dancers indicated that solicitations for sexual favors occurred "whether the club is nude or not" and that drugs were frequently passed during tipping. The Appellants have not presented evidence sufficient to create a genuine issue of material fact as to whether the two-foot rule is designed to serve a substantial governmental interest hi preventing the secondary effects of adult establishments. The Ordinance therefore survives the first prong of the Renton test. [20] Our next consideration is whether the City's two-foot rule is narrowly tailored to address the problem of secondary effects from adult entertainment. See Ctr. for Fair Pub. Policy, 336 F.3d at 1166. The Ordinance's two-foot separation requirement is more narrow than other separation requirements that the Ninth Circuit has upheld. See Colacurcio, 163 F.3d at 553-54 (upholding a ten-foot separation requirement); BSA, Inc. v. King County, 804 F.2d 1104, 1110-11 (9th Cir.1986) (upholding a six-foot separation requirement); Kev, 793 F.2d at 1061-62 (upholding a ten-foot separation requirement). These earlier cases involved nude or topless dancing, and therefore differ from the case before us. Nonetheless, they guide us in now holding that in the context of a club that features on-stage nude dancing and offstage minimally clothed dancing, the City's two-foot separation requirement is narrowly tailored to prevent the exchange of money *1128 or drugs and to allow enforcement of the "no touching" provisions. [21 ] Finally, we consider whether the Ordinance leaves open alternative avenues of communication. See Ctr. for Fair Pub. Policy, 336 F.3d at 1166. This inquiry is analogous to that in Section IV(A), supra, which concluded that the Ordinance is not a complete ban on protected expression. The challenged Ordinance leaves dancers free to convey their erotic message as long as they are two feet away from patrons. Although the message may be slightly unpaired from this distance, it cannot be said that a dancer's performance "no longer conveys eroticism" from two feet away. Dream Palace, 384 F.3d at 1021 (internal citation and quotation © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 395F.3dlll4 Page 13 395 F.3d 1114,2005 WL 159576 (9th Cir.(CaL)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 (Cite as: 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal.))) omitted). Because the dancer's erotic message may still (PDF) be communicated from a slight distance, the Ordinance survives this final prong of the Renton analysis. END OF DOCUMENT **11 [22] As detailed above, the Ordinance's two-foot rule is narrowly tailored to address the City's concerns about the secondary effects of adult establishments and leaves alternate channels of communication open by allowing dancers to perform at a two-foot distance. The Ordinance survives intermediate scrutiny. V The Ordinance was thoroughly researched and narrowly tailored to combat the negative side-effects of adult businesses that the City's research identified. Regulating adult businesses will always place the City s concerns in tension with First Amendment protections. In this case, however, the City of La Habra designed an Ordinance that falls within what has previously been accepted as constitutional in this circuit, despite the minimal amount of clothing that the appellant dancers wear when performing. The Ordinance is not vague or overbroad, and the Appellants have raised no genuine issue of material fact regarding their takings or First Amendment claims. The judgment of the district court is therefore AFFIRMED. 395 F.3d 1114, 2005 WL 159576 (9th Cir.(Cal.)), 5 Cal. Daily Op. Serv. 718, 2005 Daily Journal D.A.R. 999 Briefs and Other Related Documents (Back to top) . 2004 WL 2606568 (Appellate Brief) Appellant's Reply Brief (Sep. 22, 2004)Original Image of this Document (PDF) . 2004 WL 2203048 (Appellate Brief) Appellants' Brief (Aug. 09,2004)Original Image of this Document (PDF) . 04-56072 (Docket) (Jun. 21,2004) . 2004 WL 2389705Original Image of this Document © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 402 F.3d 875 402 F.3d 875, 5 Cal. Daily Op. Serv. 2822, 2005 Daily Journal D.A.R. 3836 (Cite as: 402 F.3d 875) Pagel have voted to deny the petition for rehearing en bane and Judge Tashima so recommends. The full court has been advised of the petition for rehearing en bane. No judge has requested a vote on whether to rehear the matter en bane. Fed. R.App. P. 35. The petition for rehearing en bane is DENIED. No further petitions for rehearing or petition for rehearing en bane shall be entertained. 402 F.3d 875,5 Cal. Daily Op. Serv. 2822,2005 Daily Journal D.A.R. 3836 Briefs and Other Related Documents (Back to top) • 2004 WL 2606568 (Appellate Brief) Appellant's Reply Brief (Sep. 22, 2004)Original Image of this Document (PDF) • 2004 WL 2203048 (Appellate Brief) Appellants' Brief (Aug. 09,2004)Original Image of this Document (PDF) United States Court of Appeals, Ninth Circuit. Bill Badi GAMMOH, dba Taboo Theater aka Pelican Theater; Leslie West; Armine Michelle Bedrosian; Christine Johanna Fener; Charbonesse Garrett; Heather Eloise Elam; Stacy Joy Andre; Meghann Lara Ann Onselen, Plaintiffs- Appellants, v. CITY OF LA HABRA, Defendant-Appellee. No. 04-56072. Argued and Submitted Nov. 1,2004. Filed Jan. 26, 2005. Amended April 1,2005. Scott W. Wellman and Stuart Miller, Wellman & Warren, Laguna Hills, CA, for the plaintiffs-appellants. Deborah J. Fox and Dawn A. Mclntosh, Fox & Sohagi, Los Angeles, CA, for the defendant-appellee. Scott D. Bergthold, Chattanooga, Tennessee, for Amicus Curiae League of California Cities. Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-03- 00911-GLT. *876 Before: TASHIMA, FISHER, and TALLMAN, Circuit Judges. ORDER The court's opinion, filed January 26,2005, is amended as follows: The second paragraph on slip op. 1131, under heading "C", line 3: the words "leaves open" are deleted and replaced with, "does not unreasonably limit". Slip op. 1135, first paragraph, line 2: the word "ample" shall be inserted between "open" and "alternative". With these amendments, Judges Fisher and Tallman © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. • 04-56072 (Docket) (Jun. 21,2004) • (Appellate Brief) Brief of Amicus Curiae Legaue of California Cities, in Support of Appellee City of La Habra, Urging Affirmance (2004)Original Image of this Document (PDF) END OF DOCUMENT 27 Pagel 350F.3d631 (Cite as: 350 F.3d 631) United States Court of Appeals, Seventh Circuit. G.M. ENTERPRISES, INC., Plaintiff-Appellant, v. TOWN OF ST. JOSEPH, Wisconsin, Defendant-Appellee. No. 03-1428. Argued Sept. 16, 2003. Decided Nov. 25, 2003. Owner of adult-oriented business sued town pursuant to § 1983, challenging constitutionality of town ordinances that regulated manner in which nude dancers performed in any "sexually oriented business" and prohibited establishments licensed to sell alcoholic beverages from permitting nude dancing on the premises. The United States District Court for the Western District of Wisconsin, John C. Shabaz, J., granted summary judgment for town. Owner appealed. The Court of Appeals, Flaum, Chief Judge, held that: (1) challenged ordinances did not regulate constitutionally protected activity; (2) as an issue of first impression, ordinance prohibiting physical contact between nude dancers and patrons did not violate First Amendment; (3) challenged ordinances were subject to intermediate scrutiny under First Amendment; (4) business failed to undermine validity of town ordinances; and (5) town was not required to establish that studies upon which it relied in enacting ordinances were of sufficient methodological rigor to satisfy Daubert test. Affirmed. West Headnotes [1] Constitutional Law C=»90.4(3) 92k90.4(3) Most Cited Cases Nude dancing is expressive conduct within the outer ambit of the First Amendment's protection. U.S.C.A. Const. Amend. 1. [2] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [2] Intoxicating Liquors 223kl5 Most Cited Cases Town ordinances that barred establishment from selling alcoholic beverages if dancer performing on premises exposed any "specified anatomical area," and also required that such dancer perform on stage at least 18 inches above and five feet away from patrons, did not regulate activity protected under First Amendment. U.S.C.A. ConstAmend. 1. [3] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases In the First Amendment context, requirement that dancers wear pasties and G- strings has only a de minimis effect on the expression conveyed by nude dancing. U.S.C.A. Const.Amend. 1. [4] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases First Amendment does not entitle either dancers or patrons to have alcohol available during a presentation of nude or semi-nude dancing. U.S.C.A. Const.Amend. 1. [5] Constitutional Law €==>90.4(3) 92k90.4(3) Most Cited Cases [5] Theaters and Shows €=>3.50 376k3.50 Most Cited Cases Town ordinance prohibiting physical contact between nude dancers and their patrons did not violate First Amendment, inasmuch as physical contact was beyond the scope of protected expressive activity of nude dancing. U.S.C.A. Const.Amend. 1. [6] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases Town ordinances that barred establishment from selling alcoholic beverages if dancer performing on premises exposed any "specified anatomical area," and required that such dancer perform on stage at least 18 inches above and five feet away from patrons, had incidental effect on protected expression and thus had to meet First Amendment standards to be valid. U.S.C.A. Const. Amend. 1. [7] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases In addressing First Amendment challenge to regulation of adult-oriented business, court must first verify that Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 predominate concerns motivating regulation were with secondary effects of adult speech, rather than content of adult speech, and, if so, court then applies intermediate scrutiny to regulation. U.S.C.A. Const.Amend. 1. [8] Constitutional Law €=90.4(1) 92k90.4(l) Most Cited Cases To survive step of First Amendment analysis requiring that ordinance regulating adult-oriented business be targeted at secondary effects of adult speech to be subject to intermediate scrutiny, rationale of ordinance must be that it will suppress secondary effects, and will do so by means other than by suppressing speech. U.S.C.A. Const.Amend. 1. [9] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases Town ordinances barring establishment from selling alcoholic beverages if dancer performing on premises exposed any "specified anatomical area," and requiring that such dancer perform on stage at least 18 inches above and five feet away from patrons, were motivated by interest in reducing secondary effects associated with adult speech, rather than interest in suppressing speech, and thus were subject to intermediate scrutiny under First Amendment, in that ordinances did not prohibit nude dancing, but rather sought to minimize factors that town board believed would heighten probability that adverse secondary effects would result from nude dancing, and restrictions were not triggered if all dancers chose to wear de minimis clothing necessary to cover all "specified anatomical parts." U.S.C.A. Const. Amend. 1. [10] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases Zoning regulations of adult businesses aimed at suppressing secondary effects of adult speech are constitutional so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication. U.S.C.A. Const. Amend. 1. [11] Constitutional Law €=>90.4(2) 92k90.4(2) Most Cited Cases Regulations of public nudity aimed at suppressing secondary effects of such speech are analyzed under O'Brien intermediate scrutiny test, which asks (1) whether regulating body had power to enact regulation, (2) whether regulation furthers important or substantial governmental interest, (3) whether that interest is unrelated to suppression of free expression, and (4) whether regulation's incidental impact on expressive conduct is no greater than is essential to the furtherance of that interest. U.S.C.A. Const.Amend. 1. [12] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [12] Intoxicating Liquors 223kl5 Most Cited Cases Adult-oriented business failed to undermine validity, under First Amendment, of town ordinances barring establishment from selling alcoholic beverages if dancer performing on premises exposed any "specified anatomical area," and requiring that such dancer perform on stage at least 1 8 inches above and five feet away from patrons, despite offering evidence that arguably undermined town's inference of correlation between adult entertainment and adverse secondary effects, including study questioning methodology employed in numerous studies relied upon by town board, evidence of increased property values near business, and evidence that most police calls involving business did not occur when semi-nude dancing was being performed; such evidence showed only that board could have reached different and equally reasonable conclusion. U.S.C.A. Const.Amend. 1. [13] Constitutional Law €=>82(10) 92k82(10) Most Cited Cases In reviewing regulation of adult-oriented business under intermediate scrutiny standard for First Amendment claims, court is not required to re-weigh the evidence considered by a legislative body, nor is it empowered to substitute its judgment as to whether a regulation will best serve a community, so long as regulatory body has satisfied requirement that it consider evidence reasonably believed to be relevant to the problem addressed. U.S.C.A. Const.Amend. 1. [14] Constitutional Law €==>90.4(1) 92k90.4(l) Most Cited Cases [14] Theaters and Shows 376k2 Most Cited Cases To defeat First Amendment challenge to ordinances regulating adult-oriented businesses, town was not required to establish that studies upon which it relied in enacting ordinances were of sufficient methodological rigor to satisfy Daubert test for admissibility of specialized expert testimony, but rather only had to show that it relied on some evidence in reaching reasonable conclusion as to secondary effects of adult-oriented businesses targeted by ordinances. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 3 U.S.C.A. Const-Amend. 1. [15] Constitutional Law €==>90.4(1) 92k90.4(l) Most Cited Cases For ordinance targeting secondary effects of adult-oriented speech to withstand intermediate scrutiny under First Amendment, municipality need not prove efficacy of its rationale for reducing secondary effects prior to implementation. U.S.C. A. Const. Amend. 1. *633 Randall D.B. Tigue (argued), Minneapolis, MN, for Plaintiff- Appellant. Richard M. Burnham (argued), Lafollette, Godfrey & Kahn, Madison, WI, for Defendant-Appellee. Before FLAUM, Chief Judge, and DIANE P. WOOD and WILLIAMS, Circuit Judges. FLAUM, Chief Judge. G.M. Enterprises, Inc., owner of the Cajun Club of the Town of St. Joseph, Wisconsin, appeals the District Court's grant of summary judgment to the Town upholding the constitutionality of two town ordinances. G.M. argues that Ordinance 2001-02, which regulates the manner in which nude dancers perform in any "sexually oriented business," and Ordinance 2001-03, which prohibits establishments licensed to sell alcoholic beverages from permitting nude dancing on the premises, violate the First and Fourteenth Amendments. We conclude that the record supports the Town's claim that the ordinances are not an attempt to regulate the expressive content of nude dancing, but that the Town had a reasonable basis for believing that the ordinances will reduce the undesirable "secondary effects" associated with sexually oriented businesses, and therefore, we affirm. I. Background In 1999, the Town Board ("Board") of the Town of St. Joseph ("Town"), an unincorporated town in Wisconsin, began to consider whether to regulate sexually oriented businesses located within its borders. The Board collected sixteen studies regarding the relationships between sexually oriented businesses and property values, crime statistics, public health risks, illegal sexual activities such as prostitution, and organized crime. These studies, undertaken in various communities throughout the country, demonstrated a correlation between sexually oriented businesses *634 and negative secondary effects. The Board also consulted a number of judicial opinions from other jurisdictions that address adverse secondary effects associated with sexually oriented businesses. Further, the Board considered police reports of calls made in regards to each licensed liquor establishment in St. Joseph for the period of 1989 through 1999, furnished by the St. Croix County Sheriffs Department. The sheriff informed the Board that the sheriff department had "received far more calls regarding the Cajun Club [the Town's sole sexually oriented business licensed to sell alcoholic beverages] than we have for the other liquor establishment in the Town of St. Joseph that do[es] not offer sexually oriented entertainment such as nude dancing." The studies, judicial opinions, and police reports were available to members of the Board for their consideration. In June 2001, the Board adopted Ordinance 2001-02, which was codified under the town code, Chapter 153, entitled "Sexually Oriented Businesses." "Sexually oriented businesses," as defined by § 153-4, include "businesses] featuring adult entertainment." "Adult entertainment," as defined by § 153-4, is any "live performance, display or dance of any type which has as a significant or substantial portion ... characterized by an emphasis on ... viewing of specified anatomical areas." § 153-4. According to § 153-4, "[specified anatomical areas" include: A. The human male genitals in a discernible turgid state, even if fully and opaquely covered; or B. Less than completely and opaquely covered human genitals, pubic region, anus, anal cleft or cleavage; or C. Less than completely and opaquely covered nipples or areolas of the human female breast. Ordinance 2001-02, published in Section 153-3(A), prohibits sexually oriented businesses from allowing any: person, employee, entertainer or patron ... to have any physical contact with any entertainer on the premises of a sexually oriented business during any performance ... all performances shall occur on a stage or table that is elevated at least 18 inches above the immediate floor level and shall not be less than 5 feet from any area occupied by any patron. Further, § 153-5(B) prohibits the "sale, use or consumption of alcoholic beverages on the premises of a sexually oriented business." The Board stated in § 153-1 that its motivation for passing this ordinance was that it: finds that sexually oriented businesses are frequently used for unlawful sexual activities ... and... concern over sexually transmitted diseases is a legitimate health concern of the Town Board ... there is Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 convincing documented evidence that sexually oriented businesses have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values; and, whereas, the Town Board desires to minimize and control these adverse secondary effects... and, whereas it is not the intent of this chapter to suppress any speech activities protected by the First Amendment, but to... addressf ] the negative secondary effects of sexually oriented businesses. Concurrent with the adoption of Ordinance No.2001-02, the Board adopted Ordinance No.2001 -03, codified under Chapter 114, Article VI of the town code, entitled "Nude Dancing in Licensed Establishments Prohibited." Ordinance *635 No.2001 -03 applies to "[a]ny establishment licensed by the Town Board... to sell alcohol beverages." §114-19. Under Ordinance No.2001-03, [i]t is unlawful for any person to perform or engage in... any live act, demonstration, dance or exhibition on the premises of a licensed establishment which: A. Shows his/her genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering. B. Shows the female breast with less than a fully opaque covering of any part of the nipple and areola. C. Shows the human male genitals in a discernibly turgid state, even if fully and opaquely covered. § 114-17. The Board expressed its intent in regards to Ordinance 2001-03 by stating in Section 114-16 that: the Town Board is aware, based on the experiences of other communities, that bars and taverns, in which live, totally nude, non-obscene, erotic dancing occurs may and do generate secondary effects which the Town Board believes are detrimental to the public health, safety and welfare... the Town Board desires to minimize, prevent and control these adverse effects ... the Town Board has determined that the enactment of an ordinance prohibiting live, totally nude, non-obscene, erotic dancing in bars and taverns licensed to serve alcoholic beverages promotes the goal of minimizing, preventing and controlling the negative secondary effects associated with such activity. The plaintiff in this action, G.M. Enterprises, operates the Cajun Club ("Club") of St. Joseph. The Club enjoys a St. Joseph liquor license and, for 16 years, has served alcohol and offered semi-nude, topless dance entertainment. It is uncontested that G.M. is a "sexually oriented business" subject to Ordinances Nos.2001-02 and 2001-03, as its dancers expose "specified anatomical areas." G.M. filed a complaint in the United States District Court, Western District of Wisconsin, pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief and alleging that the ordinances are unconstitutional. The complaint alleged that the Board did not rely on adequate evidence to demonstrate the necessity of the ordinances to combat adverse secondary effects; that the ordinances prohibit more expression than is necessary to combat any adverse secondary effects that might be caused by adult entertainment; and further that Ordinance No.2001 -03 expressly conditions the grant of a liquor license, a government benefit, on the surrender of the constitutional right to freedom of expression. The Town moved for summary judgment, arguing that the Board relied on an adequate evidentiary foundation to reasonably believe that the ordinances would reduce adverse secondary effects. In support of its motion, the Town submitted an affidavit by the city clerk attesting to the Board's access to the studies, cases, and police reports relied upon in its deliberations, and further that every member of the Board "spent time reviewing the materials." The Town also submitted an affidavit by the county sheriff attesting to the fact that more police calls were made in regards to the Club than any other liquor establishment in the Town. In its opposition to the Town's motion, G.M. questioned the Board's conclusion that the ordinances would have the effect of minimizing adverse secondary effects. G.M. argued that the Board did not actually review or rely on the studies and cases that it gathered. G.M. presented a study by Bryant Paul, Daniel Linz & Bradley *636 Shafer that finds the majority of the studies the Board collected "fundamentally unsound," and methodologically flawed, and also submitted an affidavit of Daniel Linz that discusses the study. G.M. further argued that the Board's findings are contrary to the locality s actual experience, and, in support, referred to a 1993 study of the county where the Club is located that states that "St. Croix county has not experienced any major problems with adult entertainment establishments." In addition, G.M. submitted an affidavit stating that the property values near the Club have increased over time. G.M. contested the Town's inference that the Club's entertainment generates secondary effects by submitting an affidavit of the president of G.M. Enterprises which stated that the majority of calls to the police regarding incidents at the Club were generated during the hours when no nude or semi-nude dancing entertainment was offered. G.M. also submitted a statement by the sheriff that the volume of police calls generated by the Club were unrelated to nude dancing. The district court entered judgment in favor of the Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS Town, finding that the ordinances do not impermissibly infringe on G.M.'s constitutional rights, and further that G.M.'s challenge to the Town's secondary effects rationale did not raise an issue of material fact to allow the case to proceed to trial. G.M. now appeals. II. Discussion We review the District Court's grant of summary judgment de novo, construing the facts in the record in favor of G.M., the non-moving party. Ben's Bar v. Village of Somerset, 316 F.3d 702, 707 (7th Cir.2003). [1][2] Nude dancing is expressive conduct "within the outer ambit of the First Amendment's protection." City of Erie v. Pap's AM, 529 U.S. 277, 289, 120 S.Ct. 1382,146 L.Ed.2d 265 (2000). The ordinances at issue regulate nude dancing in two ways. If a dancer exposes any "specified anatomical area," then the establishment where he or she performs must (1) not sell any alcoholic beverages,§ 153-3(B),§ 114-17,and(2)requirethathe or she perform on a stage at least eighteen inches above and five feet away from patrons, as required by § 153-3(A). However, neither requirement is implicated if dancers cover all "specified anatomical areas" during performances, and neither ordinance prohibits nude dancing outright. [3][4][5][6] Still, plaintiff argues that Ordinances Nos.2001- 02 and 2001-03 regulate constitutionally protected activity. We disagree. The requirement that dancers wear pasties and G-strings has only a "de minimis " effect on the expression conveyed by nude dancing. Pap's A.M., 529 U.S. at 294, 120 S.Ct. 1382; Ben's Bar, 316 F.3d at 708. Further, the "First Amendment does not entitle... dancers, or... patrons, to have alcohol available during a 'presentation' of nude or semi-nude dancing." Ben's Bar, 316 F.3d at 726. And, while the constitutionality of a restriction prohibiting physical contact between nude dancers and their patrons is an issue of first impression in this circuit, the Fifth Circuit has twice had the occasion to consider similar restrictions and has found them to be constitutional on the grounds that physical contact is beyond the scope of the protected expressive activity of nude dancing. Hang On, Inc. v. City of Arlington, 65 F.3d 1248,1253 (5th Cir.1995); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471,484 (5th Cir.2002). Yet, as these regulations do have an incidental effect on protected expression, they must meet constitutional standards to be upheld. The parties submit that, in order to determine the correct constitutional analysis *637 to apply to the ordinances at issue, this Court must first decide whether the ordinances intend to regulate the expressive element of nude dancing, or whether they are neutral as to content. In the Town's view, the ordinances seek to regulate only the adverse secondary effects associated with nude dancing, and are thus content neutral. In support, the Town cites City of Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In Renton, the Supreme Court held that an adult entertainment zoning ordinance was a " 'content-neutral' regulation of speech because while 'the ordinance treats theaters that specialize in adult films differently from other kinds of theaters ....[it] is aimed not at the content of the films shown... but rather at the secondary effects of such theaters on the surrounding community.' " Ben's Bar, 316 F.3d at 716 (quoting Renton, 475 U.S. at 47, 106 S.Ct. 925) (emphasis in original). In contrast, the plaintiff argues that the secondary effects rationale of Renton is no longer good law, and further that the ordinances are content based and therefore subject to strict scrutiny. [7] In light of the Supreme Court's divided ruling in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,122 S.Ct. 1728,152 L.Ed.2d 670 (2002), we need not decide whether the ordinances are content based or content neutral, so long as we first conclude that they target not "the activity, but ... its side effects," see Alameda Books, 535 U.S. at 447, 122 S.Ct. 1728 (Kennedy, J., concurring in the judgment), and then apply intermediate scrutiny. In Alameda Books, the plurality upheld at summary judgment a Los Angeles ordinance that prohibited multiple adult entertainment businesses from operating in the same building. The plurality assumed the ordinance to be content neutral, but did not consider the issue directly due to the fact that the Ninth Circuit had not addressed it below. AlamedaBooks, 535 U.S. at434,441, 122 S.Ct. 1728. However, the plurality reaffirmed that the first step of the Renton analysis is to verify that the "predominate concerns motivating the ordinance were with the secondary effects of adult speech, and not with the content of the adult speech." AlamedaBooks, 535 U.S. at 440- 41, 122 S.Ct. 1728 (internal quotations omitted). In his concurring opinion, Justice Kennedy agreed that the Renton test provided the appropriate level of scrutiny for a regulation that is "targeted not at the activity, but at its side effects." Alameda Books, 535 U.S. at 447, 122 S.Ct. 1728. And, employing an approach similar to the plurality's, Justice Kennedy insisted that a municipality first "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," before a court applies intermediate scrutiny. Id. at 449,122 S.Ct. 1728. Although, unlike the plurality, Justice Kennedy wrote that zoning ordinances of adult businesses are "content based," see id., he agreed with the plurality that"[nevertheless,... the central holding Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 of Renton is sound: A zoning ordinance that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny." Id. at 448, 122 S.Ct. 1728. As Justice Kennedys concurrence is the narrowest opinion joining the judgment of the Court, it is the controlling authority under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990,51 L.Ed.2d 260 (1977). Ben's Bar, 316 F.3d at 722. [8][9] Under the first step of the analysis set forth by both Justice Kennedy and the plurality, we must first determine whether the ordinances at issue are motivated by an interest in reducing the secondary *638 effects associated with the speech, rather than an interest in reducing the speech itself, before turning to Renton. SeeAlamedaBooks, 535 U.S. at 440-41,450,122 S.Ct. 1728. To survive this step of the analysis, "the rationale of the ordinance must be that it will suppress secondary effects—and not by suppressing speech." Id. at 450,122 S.Ct. 1728. The Town has met this burden. Neither of the ordinances prohibit nude dancing; rather, they merely seek to minimize the factors that the Board believed would heighten the probability that adverse secondary effects would result from nude dancing: physical proximity between the dancers and patrons, and the consumption of alcohol by patrons. Requiring that adult entertainment establishments maintain a minimal physical buffer between patrons and dancers does not reduce the availability of nude dance entertainment. And, "alcohol prohibition is, as a practical matter, the least restrictive means of furthering the ... interest in combating the secondary effects resulting from the combination of adult entertainment and alcohol consumption." Ben's Bar, 316 F.3d at 725. Further, if all dancers choose to wear the de minimus clothing necessary to cover all "specified anatomical parts," then neither the physical proximity nor alcohol prohibition requirements are implicated. Thus, as the ordinances will leave the availability of nude dance entertainment substantially the same, under Justice Kennedy's test of "how speech will fare under the city's ordinance[s]," Alameda Books, 535 U.S. at 450, 122 S.Ct. 1728, the Town has demonstrated that its goal is to minimize secondary effects, rather than the speech itself. [10][11] Therefore, we move to the second step of the Renton analysis. In Renton, the Court set forth the intermediate scrutiny test for zoning regulations of adult businesses aimed at suppressing secondary effects. Such regulations are constitutional "so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication." Renton, 475 U.S. at 47, 106 S.Ct. 925, reaffirmed in Alameda Books, 535 U.S. at 434, 122 S.Ct. 1728. Regulations of public nudity, however, are analyzed under the intermediate scrutiny test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Pap's AM, 529 U.S. at 289, 120 S.Ct. 1382. The O'Brien test asks (1) whether the regulating body had the power to enact the regulation; (2) whether the regulation furthers an important or substantial governmental interest; (3) whether that interest is unrelated to the suppression of free expression; and (4) whether the regulation's incidental impact on expressive conduct is no greater than is essential to the furtherance of that interest. O'Brien, 391 U.S. at 377, 88 S.Ct. 1673. Ordinances Nos.2001-02 and 2001-03 are neither public indecency nor zoning regulations. They regulate the manner in which patrons view nude dancing; specifically, the patron's physical proximity to the nude dancer and the patron's access to alcoholic beverages in establishments where nude dancing is provided. Because this case concerns only the "substantial government interest" prong that is found in both the O'Brien and Renton tests, we need not decide which test of intermediate scrutiny provides the correct analytical framework for these ordinances. Indeed, this Court has held that the constitutional standard for "evaluating adult entertainment regulations, be they zoning ordinances or public indecency statutes, are virtually indistinguishable." Ben's Bar, 316 F.3d at 714. [ 12] The issue before this Court is what quality and quantum of evidence a *639 regulating body must consider in order to demonstrate that it has a reasonable basis for believing that the regulated activity generates adverse secondary effects, the reduction of which is a "substantial government interest" under the Renton or O'Brien tests. This issue was most recently before the Supreme Court in Alameda Books; in the plurality's words, the case required the court to "clarify the standard for determining whether an ordinance serves a substantial government interest under Renton." Alameda Books, 535 U.S. at 433, 122 S.Ct. 1728. In Alameda Books, the plurality reaffirmed 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." Alameda Books at 438, 122 S.Ct. 1728, (quoting Renton, 475 U.S. at 51-52, 106 S.Ct. 925). The plurality upheld an ordinance that prohibited the operation of multiple adult entertainment business in the same building, even though the regulating body did not rely upon a study that specifically addressed whether the concentration of such establishments in a single building would result in a higher incidence of adverse secondary effects. Id. at 437,122 S.Ct. 1728. According to the plurality, it was Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? reasonable for the regulating body to infer—from a somewhat dated study that concluded that the concentrated growth of adult entertainment establishments in a particular neighborhood led to increased crime there—that the concentration of adult establishments in a single building would lead to a similar increase in crime. Id. at 435-38, 122 S.Ct. 1728. The plurality did not require that a regulating body rely on research that targeted the exact activity it wished to regulate, so long as the research it relied upon reasonably linked the regulated activity to adverse secondary effects. However, the plurality cautioned that: a municipality's evidence must fairly support the municipality's rationale .... 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 standards 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 its ordinance. Id. at 438-39, 122 S.Ct. 1728. Plaintiff argues that it has "substantially challenged the validity of the town's determination that its regulation was justified by the need to combat adverse secondary effects of adult entertainment," and has therefore precluded summary judgment by shifting the burden back to the Town to supplement the record. We disagree. Plaintiff submitted some evidence that might arguably undermine the Town's inference of the correlation of adult entertainment and adverse secondary effects, including a study that questions the methodology employed in the numerous studies relied upon by the Board; evidence of an increase of property values near the Club; and evidence that the majority of police calls in regards to the Club originated during periods of time when no semi-nude dancing occurred. Although this evidence shows that the Board might have reached a different and equally reasonable conclusion regarding the relationship between adverse secondary effects and sexually oriented businesses, it is not sufficient to vitiate the result reached in the Board's legislative process. [13] Alameda Books does not require a court to re-weigh the evidence considered by a legislative body, nor does it empower *640 a court to substitute its judgment in regards to whether a regulation will best serve a community, so long as the regulatory body has satisfied the Renton requirement that it consider evidence "reasonably believed to be relevant to the problem" addressed. See Renton, 475 U.S. at 51-52, 106 S.Ct. 925, see also Alameda Books, 535 U.S. at 445, 122 S.Ct. 1728 (Kennedy, J., concurring in the judgment) ("in my view, the pluralitys application of Renton might constitute a subtle expansion, with which I do not concur."). Wrote Justice Kennedy, "as a general matter, courts should not be in the business of second- guessing fact-bound empirical assessments of city planners... the Los Angeles City Council knows the streets of Los Angeles better than we do." Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728. The plurality expressed similar support for judicial deference to local lawmakers: "we must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather and evaluate data on local problems." Id. at 440, 122 S.Ct. 1728. [ 14][ 15] Plaintiff argues that its complaint must survive summaryjudgment because the evidence relied upon by the Board does not meet the standards of Daubert v. MerrellDow Pharmaceuticals, 509 U.S. 579,113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under the plaintiffs view, the Town cannot demonstrate a reasonable belief in a causal relationship between the activity regulated and secondary effects, as required by Alameda Books and Renton, unless the studies it relied upon are of sufficient methodological rigor to be admissible under Daubert. This argument is completely unfounded. The plurality in Alameda Books bluntly rejected Justice Souter's suggestion that the municipality be required to present empirical data in support of its contention: "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." Alameda Books, 535 U.S. at 439, 122 S.Ct. 1728. Further, the purpose of the evidentiary requirement of Alameda Books is to require municipalities to demonstrate reliance on some evidence in reaching a reasonable conclusion about the secondary effects. The municipality need not "prove the efficacy of its rationale for reducing secondary effects prior to implementation." Ben's Bar, 316 F.3d at 720. A requirement of Daubert- quality evidence would impose an unreasonable burden on the legislative process, and further would be logical only if Alameda Books required a regulating body to prove that its regulation would—undeniably—reduce adverse secondary effects. Alameda Books clearly did not impose such a requirement. III. Conclusion For the reasons discussed, the judgment of the district court is AFFIRMED. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 8 350F.3d631 END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 28 Pagel 65 F.3d 1248 (Cite as: 65 F.3d 1248) United States Court of Appeals, Fifth Circuit. HANG ON, INC., d/b/a Hardbodys of Arlington, Plaintiff-Appellant, v. CITY OF ARLINGTON, Defendant-Appellee. No. 94-10959. Sept. 20,1995. Topless bar sued city, alleging that city ordinance's "no touch" provision, which prohibited touching between nude performers and customers in adult cabarets, violated First, Fourth, and Fourteenth Amendments to United States Constitution, Equal Rights Amendment of Texas Constitution, and Texas Alcohol Beverage Code. After city removed case to federal court, the United States District Court for the Northern District of Texas, John H. McBryde, J., granted city's motion for summary judgment. Bar appealed. The Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that: (1) bar had standing to assert its employees' and patrons' rights; (2) ordinance did not criminalize accidental or inadvertent touching; (3) ordinance did not violate equal protection by criminalizing touching in adult cabarets but not in other adult entertainment establishments; (4) ordinance did not violate Equal Rights Amendment by excluding male breasts from its definition of nudity; and (5) ordinance did not violate Alcoholic Beverage Code. Affirmed. West Headnotes [1] Constitutional Law €=>42.1(6) 92k42.1(6) Most Cited Cases Topless bar had standing to challenge city ordinance's "no touch" provision as violating First Amendment rights of bar's employees and customers; bar's employees and customers could encounter practical difficulties in asserting their own rights, which, at minimum, reinforced close relationship prerequisite to surrogate standing. U.S.C.A. Const.Amend. 1; Arlington, Tx., Ordinance No. 92-117. [2] Constitutional Law €=>42(1) 92k42(l) Most Cited Cases Assuming that case or controversy requirements of Article III are met, Constitution does not universally forbid party from asserting rights of others; rather, general rule prohibiting such surrogate claims is prudential. U.S.C.A. Const. Art. 3, § 1 et seq. [3] Constitutional Law €=>42.2(2) 92k42.2(2) Most Cited Cases Topless bar had standing to assert its employees' rights with respect to claim that city ordinance's "no touch" provision violated Equal Rights Amendment of Texas Constitution by excluding male breasts from definition of nudity; there was no suggestion that bar's dancers did not wish litigation to go forward and no indication that bar's interest in litigation diverged from that of its dancers, and city could not dispute that its ordinance had direct financial impact on bar, as well as bar's employees. Vernon's Ann.Texas Const. Art. 1, § 3a; Arlington, Tx., Ordinance No. 92-117. [4] Federal Civil Procedure €=?2481 170Ak2481 Most Cited Cases Claims that ordinance is facially invalid are better candidates for summary disposition than claims that ordinance was unconstitutionally applied. U.S.C.A. Const. Amend. 1. [5] Constitutional Law €^90.4(5) 92k90.4(5) Most Cited Cases City ordinance's "no touch" provision, which prohibited touching between nude performer and customer, was not unconstitutionally overbroad in violation of First Amendment; such contact was beyond expressive scope of dancing itself, patrons had no First Amendment right to touch nude dancer, and even though ordinance applied to all employees in state of nudity, not just dancers, employees not engaged in expressive conduct such as dancing had no First Amendment right to appear in nude. U.S.C.A. Const.Amend. 1; Arlington, Tx., Ordinance No. 92-117. [6] Constitutional Law €=>! 92k90.4(5) Most Cited Cases 0.4(5) Topless-bar patrons have no First Amendment right to touch nude dancer. U.S.C.A. Const.Amend. 1. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 [7] Constitutional Law C==>90.4(5) 92k90.4(5) Most Cited Cases Nonperforming nude employees of topless bar could not claim First Amendment protection solely by virtue of their nudity. U.S.C.A. Const.Amend. 1. [8] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases City ordinance's "no touch" provision, which prohibited touching between nude performer and customer, did not burden more protected expression than was essential to further city's interest in preventing prostitution, drug dealing, and assault, and ordinance was thus not unconstitutionally overbroad, despite topless bar's claim that, because ordinance did not specify requisite mental state, it criminalized accidental or inadvertent touching; under Texas law, ordinance required culpable mental state and, thus, did not criminalize inadvertent or negligent touching. U.S.C.A. Const.Amend. 1; V.T.C.A., Penal Code § 6.02(b, c); Arlington, Tx., Ordinance No. 92-117. [9J Constitutional Law €=>2303(6) 92k230.3(6) Most Cited Cases City ordinance's "no touch" provision, which prohibited touching between nude performer and customer, did not violate equal protection clause of Federal Constitution, even though it applied to adult cabarets but not to other adult entertainment establishments; city could rationally conclude that adult cabarets, which typically serve alcohol and attract large crowds, were more likely venue than nude modeling studios for evils of prostitution, drug dealing, and sexual violence that "no touch" provision sought to eliminate. U.S.C.A. ConstAmend. 14; Arlington, Tx., Ordinance No. 92-117. [10] Constitutional Law €=>224(2) 92k224(2) Most Cited Cases [10] Intoxicating Liquors 223kl5 Most Cited Cases [10] Municipal Corporations 0=^120 268kl20 Most Cited Cases [10] Municipal Corporations €=>121 268M21 Most Cited Cases City ordinance's "no touch" provision, which prohibited intentional touching between nude performer and customer, did not violate Equal Rights Amendment of Texas Constitution, even though ordinance excluded male breasts from its definition of nudity; evidence showed that city council considered physiological and sexual distinctions between female and male breasts, and topless bar that challenged ordinance presented no evidence that ordinance discriminated against women solely on basis of gender. Vernon's Ann. Texas Const. Art. 1, § 3a; Arlington, Tx., Ordinance No. 92-1 17. [11] Intoxicating Liquors 223kl 1 Most Cited Cases City ordinance's " no touch" provision, which prohibited touching between nude performer and customer, did not violate Texas Alcoholic Beverage Code, even though "no touch" provision applied to adult cabarets which normally have alcoholic beverage licenses but not to nude modeling studios (which do not have such licenses); ordinance did not impose stricter standards on alcohol-related businesses than on nonalcohol-related businesses, as businesses with alcohol beverage licenses that did not qualify as adult cabarets were not subject to "no touch" provision, while adult cabarets not required to have alcoholic beverage licenses were still subject to ordinance. V.T.C.A., Alcoholic Beverage Code § 109.57; Arlington, Tx., Ordinance No. 92-117. [12] Searches and Seizures €=>79 349k79 Most Cited Cases Adult cabaret failed to show that city's enforcement of "no touch" ordinance, which precluded intentional touching between nude performer and customer, was conducted in harassing and offense manner in violation of its Fourth Amendment rights; although bar presented evidence of pattern or practice by city of conducting allegedly unconstitutional searches, bar failed to present any evidence that policy-making officials in city had any knowledge, actual or constructive, of police officers' actions during investigative searches of cabaret. U.S.C.A. Const.Amend. 4; Arlington, Tx., Ordinance No. 92-117. *1250 John L. Gamboa, Acuff, Gamboa & Moore, Ft. Worth, TX, for appellant. Thomas Phillip Brandt, Sharon Hauder, Fanning, Harper & Martinson, Dallas, TX, for appellee. Appeals from the United States District Court for the Northern District of Texas. Before REYNALDO G. GARZA, KING and HIGGINBOTHAM, Circuit Judges. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 3 PATRICK E. HIGGINBOTHAM, Circuit Judge: Hang On, Inc. appeals from the judgment of the United States District Court dismissing Hang On's federal constitutional, state constitutional, and state law challenges to the City of Arlington's Adult Entertainment Ordinance No. 92-117. I. After amassing studies describing noxious secondary effects of adult entertainment establishments, the Arlington city council passed Ordinance No. 92-117 on November 17, 1992. The Ordinance's stated purpose was "to regulate Adult Entertainment Establishments *1251 to promote the health, safety, morals and general welfare of the citizens of the City." The Ordinance expressly disclaimed intent to "restrict or deny access by adults to sexually oriented materials protected by the First Amendment or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market." The Ordinance created a comprehensive regulatory scheme for adult entertainment establishments in the City of Arlington. Among its provisions, the Ordinance provided: Section 5.01 Additional Regulationsfor Adult Cabaret A. An employee of an adult cabaret, while appearing in a state of nudity, commits an offense if he touches a customer or the clothing of a customer. B. A customer at an adult cabaret commits an offense if he touches an employee appearing in a state of nudity or clothing of the employee. The Ordinance defined a "state of nudity" as a state of dress that fails to opaquely cover a human buttock, anus, male genitals, female genitals, or female breast. On December 17, 1993, Hang On, which operates a topless bar in Arlington, filed suit against Arlington in Texas state courtpursuantto42U.S.C. § 1983, alleging that the Ordinance violates the First, Fourth, and Fourteenth Amendments to the United States Constitution. In particular, Hang On charged that the Ordinance's "no touch" provision is unconstitutionally overbroad because it criminalizes casual or inadvertent touching and unconstitutionally vague because it does not define "touches". In addition, Hang On argued that Arlington's enforcement of the Ordinance had been conducted in a harassing and discriminatory manner. Finally, Hang On alleged that the Ordinance's exclusion of male breasts from the definition of nudity violates the Equal Rights Amendment of the Texas Constitution, Tex. Const, art. I, § 3a, and that the Ordinance violates the Texas Alcoholic Beverage Code by discriminating against business with alcoholic beverage licenses. Tex.Alco.Bev.Code Ann. § 109.57. Arlington removed the case to the United States District Court for the Northern District of Texas. On September 21,1994, the district court granted summary judgment for Arlington on all of Hang On's claims and awarded costs and attorneys fees to Arlington. Hang On has timely appealed, and we now affirm the judgment of the district court. II. We first examine whether Hang On has standing to bring these claims. "The federal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of [the jurisdictional] doctrines.' " United States v. Hays, 515 U.S. 737, —, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990) (citations omitted)). A party seeking to enlist the court's jurisdiction "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Worth v. Seldin, 422 U.S. 490,499, 95 S.Ct. 2197,45 L.Ed.2d 343 (1975). Hang On asserts that the intrusive searches by the Arlington police have violated its own right to be free from unreasonable searches. Similarly, Hang On asserts its own rights when it claims that Arlington's ordinance violates the Texas Alcoholic Beverage Code. Its standing to assert these two claims is plain. Hang On's claim that the "no touch" provision violates the First Amendment implicates the general requirement that a litigant assert its own rights. Hang On does not claim any denial of its own First Amendment rights. The specific prohibition of the ordinance at issue in this case is part of a general regulation of adult cabarets, including Hang On, but the "no touch" provision regulates dancers and customers, not the bar itself. [1][2] Assuming that the case or controversy requirements of Article III are met, the Constitution does not universally forbid a party from asserting the rights of others. Rather, the general rule prohibiting such surrogate claims is prudential. *1252 Whitmore v. Arkansas, 495 U.S. 149,161 n. 2,110 S.Ct. 1717,109 L.Ed.2d 135 (1990). Accordingly, we examine exceptions to this general rule. One exception allows a litigant to assert the rights of individuals with whom she has a close relationship. See Pierce v. Society of the Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that organization's interest in Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 preserving its own business permitted it to assert rights of patrons). The history of this exception is checkered. Compare McGowan v. Maryland, 366 U.S. 420, 429-30, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) with Craigv. Boren, 429 U.S. 190,97 S.Ct. 451,50 L.Ed.2d 397 (1976) and Secretary of State ofMd. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 954-58, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Ordinarily, a business like Hang On may properly assert its employees' or customers' First Amendment rights where the violation of those rights adversely affects the financial interests or patronage of the business. That Hang On's employees and customers could encounter practical difficulties in asserting their own rights may place this case within a distinct exception; at minimum, this fact reinforces the close relationship prerequisite to surrogate standing here. See Spiegel v. City of Houston, 636 F.2d 997, 1001 (5th Cir. Unit A Feb. 1981); Gajon Bar & Grill, Inc. v. Kelly, 508 F.2d 1317, 1322 (2d Cir. 1974) (upholding standing of corporation to assert First Amendment rights of its employees and patrons); Black Jack Distributors, Inc. v. Beame, 433 F.Supp. 1297, 1303 (S.D.N.Y.1977) (upholding vendor's standing to assert First Amendment right of patrons' to purchase sexually explicit material). We are persuaded that this exception is applicable and that Hang On has standing to challenge the "no touch" provision as violative of the First Amendment rights of its employees and customers. [3] We are also persuaded that Hang On may assert its employees' rights under the Texas Equal Rights Amendment. Tex. Const, art. I, § 3 A. We are cognizant of our holding in MDII Entertainment, Inc. v. City of Dallas, Tex., 28 F.3d 492, 497 (5th Cir. 1994), that a dance hall did not have standing to raise its employees' rights under the Texas Equal Rights Amendment to challenge a municipal ordinance that excluded male breasts from its definition of "seminudity" and "simulated nudity". In MD II, we distinguished SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir.), reh'g denied, 841 F.2d 107 (5th Cir. 1988), cert, denied, 489 U.S. 1052,109 S.Ct. 1310,103L.Ed.2d579(1989),on the ground that SDJ did not purport to hold that club owners "must be allowed to raise their dancer's rights." MD II, 28 F.3d at 498 (emphasis added). Prudential considerations such as the failure of MD II to explain the absence of its dancers from the litigation led us in MD II to conclude that "[g]ranting standing to MD II may, however, result in the unnecessary litigation of a question those parties most immediately affected may not dispute." Id. at 497. Here, unlike in MD II, there is no suggestion that Hang On's dancers do not wish this litigation to go forward, and there is no indication that Hang On's interest in this litigation diverges from that of its dancers. See 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3531.9, at 579 (arguing that employers may assert rights of their employees where there is "a congruence rather than conflict of interests"); see also Craig v. Boren, 429 U.S. at 195, 97 S.Ct. at 456 (noting "vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function"). Significantly, Arlington cannot dispute that its ordinance has a direct financial impact on Hang On, as well as Hang On's employees. Injury is essential to meeting the threshold case or controversy requirement of Article III, and injury of this type is usually a component of a relationship sufficiently "close" to meet prudential standing requirements. By contrast, the causal link between the injury to the club owners in MD II and the Dallas ordinance's exclusion of male breasts from its definition of semi-nudity was attenuated at best. It was difficult to see any injury to MD II from the underinclusive character of the challenged regulations. The asserted defect was a failure to regulate the exposure of male breasts. We are persuaded that Hang On has standing to assert its *1253 dancers' First Amendment and state constitutional rights. There is much to be said for shifting the analysis from judicial justifications for asserting the rights of others to a direct inquiry into the rights of the plaintiffs in those relationships, but we do not reach those questions today. See Henry P. Monaghan, "Third Party Standing," 84 Colum.LRev. 277, 299 (1984). III. Hang On urges that summary judgment was inappropriate because facial constitutional challenges "require a review of the application of a statute to the conduct of the party before the court" and this review "is a fact question for the trier of fact to evaluate at time of trial." We disagree. [4] We note that claims that an ordinance is facially invalid are better candidates for summary disposition than claims that an ordinance was unconstitutionally applied. Claims of facial invalidity do not depend upon the development of a "complex and voluminous" factual record. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 493, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). The essence of a facial challenge usually is that the statute on its face-without regard to how it affects the particular litigants-violates the law. See, e.g., Johnson v. American Credit Co. of Georgia, Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS 581 F.2d 526, 533 (5th Cir.1978). Likewise, Hang Oris argument that further discovery and trial are necessary to permit it to develop its claims of facial invalidity misses the mark. Claims of statutory overbreadth like that alleged by Hang On do not present fact disputes regarding the effects of an allegedly overbroad statute on a plaintiff. See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (affirming summary judgment on overbreadth challenge while noting that such a challenge was "a question of law that involved no dispute about the characteristics of [the plaintiff]"). Hang On does not tell us how further time and proceedings are necessary to the adjudication of its facial challenges. A. [5] Hang On argues that the "no touch" provision is unconstitutionally overbroad in violation of the First Amendment. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991), held that nude dancing itself "is expressive conduct within the outer perimeters of the First Amendment." It does not inevitably follow, however, that touching between a nude performer and a customer is protected expression. We recognize that the theater of expressive dancing may be limited only by the art and creativity of the performers. "It is possible to find some kernel of expression in almost every activity a person undertakes ... but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989). This said, intentional contact between a nude dancer and a bar patron is conduct beyond the expressive scope of the dancing itself. The conduct at that point has overwhelmed any expressive strains it may contain. That the physical contact occurs while in the course of protected activity does not bring it within the scope of the First Amendment. Cf. Barnes, 501 U.S. at 577, 111 S.Ct. at 2466 (Scalia, J., concurring in the judgment) (noting that the Court has "never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes"). [6] Similarly, patrons have no First Amendment right to touch a nude dancer. Cf. Geaneas v. Willets, 911 F.2d 579,586 (11th Cir. 1990) (holding that bar patrons have no First Amendment right to wear revealing clothing), cert, denied, 499 U.S. 955, 111 S.Ct. 1431, 113 L.Ed.2d 484 (1991); Dodger's Bar & Grill, Inc. v. Johnson Cty. Ed. of Comm'rs, 32 F.3d 1436, 1443 (10th Cir. 1994) (same). [7] Hang On's argument that the "no touch" provision is overbroad because it applies *1254 to all employees in a state of nudity, not just dancers, is without merit. It is true that dancers possess First Amendment rights, and we have discussed their limits. Nonperforming nude employees, however, cannot claim First Amendment protection solely by virtue of their nudity. Rather, "nudity is protected as speech only when combined with some mode of expression which itself is entitled to first amendment protection." South Florida Free Beaches, Inc. v. City of Miami, Fla., 734 F.2d 608,610 (11th Cir. 1984) (alteration and internal quotes omitted). Since employees not engaged in expressive conduct such as dancing have no First Amendment right to appear in the nude, applying the "no touch" provision to non-performing nude employees does not make it overbroad. [8] Even if intentional contact between a topless dancer and a customer is not inevitably and always beyond the umbrella of the First Amendment, Arlington's "no touch" provision is not facially overbroad. The First Amendment "does not guarantee the right to [engage in protected expression] at all times and places or in any manner that may be desired." Heffion v. International Soc'yfor Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). The Court held in Barnes that content-neutral regulations of time, place, or manner are permissible where the regulations satisfy the four-part test announced in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673,20 L.Ed.2d 672 (1968). The regulation is valid "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." O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679. Hang On does not dispute nor is there any doubt that Arlington possessed the authority to enact the "no touch" provision as part of its adult entertainment ordinance. See MJR's Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569,576 (Tex.App.--Dallas 1990, writ denied) (holding municipality's police power encompassed authority to enact ordinance regulating sexually oriented businesses). Similarly, there is no dispute that the "no touch" provision furthers a substantial governmental interest and is unrelated to the suppression of free expression. Although the Arlington city council did not make specific legislative findings regarding the "no touch" provision, it now suggests that Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 the Ordinance serves to prevent prostitution, drug dealing and assault. These justifications were offered for a similar "no touch" provision upheld in Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), and Hang On does not suggest that any alternative, content-oriented interest motivated Arlington. To the contrary, the Ordinance disclaims any intent to infringe upon protected expression. The essence of Hang On's overbreadth claim appears to be that Arlington's "no touch" provision is unconstitutionally overbroad because the ordinance criminalizes accidental or inadvertent touching and, therefore, burdens more protected expression than is necessary to further the city's interest in preventing prostitution, drug dealing, and assault. This argument rests on a premise that we reject, namely that Arlington's "no touch" provision criminalizes any contact between nude employees and customers. The State of Texas has provided that "[i]f the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." Tex.Penal Code Ann. § 6.02(b). Texas law further provides that "[i]f the definition of an offense does not prescribe a culpable mental state but one is nevertheless required [under the foregoing provision], intent, knowledge, or recklessness suffices to establish criminal responsibility." Tex.Penal Code Ann. § 6.02(c). The Arlington ordinance does not specify a requisite mental state, but the Ordinance does not dispense with any mental element. Under Texas law, the Ordinance requires a culpable mental state and, therefore, does not criminalize inadvertent or negligent touching. See Pollard v. State, 687 S.W.2d 373, 374 (Tex.App.»Dallas 1985, writ refd) (applying § 6.02 to city ordinance that *1255 did not specify a required mental state). No evidence suggests that the City of Arlington has sought to enforce the Ordinance against persons unintentionally touching one another. Given the limiting construction imposed by Texas law, [FN1] we conclude that Arlington's "no touch" provision does not burden more protected expression than is essential to further substantial governmental interests. [FN2] We perceive no material difference between Arlington's "no touch" provision and the "no touch" provision upheld against a similar attack in Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986). In Kitsap County, the Ninth Circuit upheld an ordinance that, in addition to prohibiting topless dancers and customers from fondling or caressing one another, required dancers to remain at least ten feet from the customers and prohibited patrons from tipping dancers. Referring to the "no touch" provision, the court concluded that "because of the County's legitimate and substantial interest in preventing the demonstrated likelihood of prostitution occurring in erotic dance studios, the County may prevent dancers and patrons from sexually touching each other while the dancers are acting in the scope of their employment." Id. at 1061 n. 11. Arlington's "no touch" provision does not criminalize more conduct than Kitsap County's. We are persuaded that Arlington's ordinance burdens no more protected expression than is essential to further Arlington's interest in preventing prostitution, drug dealing, and assault. FN1. We express no opinion on the constitutionality of an ordinance prohibiting all touching between patrons and nude dancers. We do not offer narrowing interpretations of a state regulation. That is the task of the state courts. See Goading v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103,31 L.Ed.2d 408 (1972); United States v. Thirty-Seven Photographs, 402 U.S. 363,369, 91 S.Ct. 1400, 1404-1405, 28 L.Ed.2d 822 (1971). We parse no words or otherwise engage in the interpretive enterprise. Rather, we simply apply all the relevant statutes. See also City of Houston, Tex. v. Hill, 482 U.S. 451, 462 n. 10, 468, 107 S.Ct. 2502, 2510 n. 10, 96 L.Ed.2d 398 (1987) (holding, without prior state court decisions for guidance, that provision of state criminal code preempts parts of city ordinance). FN2. In Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 109 S.Ct. 2746, 2757, 105 L.Ed.2d 661 (1989), the Court noted that a time, place, or manner restriction "need not be the least restrictive or least intrusive means" of serving the government's interest. Rather, the restriction is no greater than essential where the governmental interest "would be achieved less effectively absent the regulation." Id. at 799, 109 S.Ct. at 2758 (internal quotation marks omitted). B. Hang On's contention that Arlington's "no touch" provision is void for vagueness is without merit. Hang On has not specified which terms in Arlington's ordinance are vague. Hang On appears to claim that Arlington's ordinance is unconstitutionally vague because it fails to define "dancer", which the Kitsap County ordinance did define. The significance of this Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? allegation eludes us, particularly given that Arlington's ordinance criminalizes touching between a customer and an "employee", which includes dancers. C. [9] Hang On argues that Arlington's decision to criminalize touching in adult cabarets but not in other adult entertainment establishments renders the ordinance unconstitutional on its face. Hang On does not specify whether this feature of the ordinance violates state or federal law. To the extent that Hang On relies upon equal protection rights guaranteed by the state constitution, its argument is without merit. The Texas Court of Appeals in 2300, Inc. v. City of Arlington, Tex., 888 S.W.2d 123, 129 (Tex.App.-Fort Worth 1994, no writ), held that Arlington's decision to apply the "no touch" provision only to adult cabarets did not violate the cabarets' equal protection rights guaranteed by the state constitution. Tex. Const, art. I, § 3. The district court did not address the merits of this argument because Hang On failed to include it in its complaint and raised this claim for the first time in its response to Arlington's motion for summary judgment. Although Hang On renews this allegation on appeal, we agree with the district court that, because Hang On did not raise the state constitutional claim in its complaint nor provide *1256 any authority for its allegation, we should not address its merits. To the extent that Hang On asserts a violation of the Fourteenth Amendment, it has failed to demonstrate that Arlington's decision to apply the "no touch" provision only to adult cabarets is an invidious classification or burdens a fundamental right. Here, Arlington could rationally conclude that adult cabarets, which typically serve alcohol and attract large crowds, are a more likely venue than nude modeling studios for the evils of prostitution, drug dealing, and sexual violence that the "no touch" provision seeks to eliminate. Nor does the Equal Protection Clause require Arlington to prohibit touching between nude employees and customers in every field in which it occurs. Cf. SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1279 (5th Cir.) (rejecting similar underinclusive argument), reh'g denied, 841 F.2d 107 (5th Cir. 1988), cert, denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). Rather, "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,489,75 S.Ct. 461,465, 99 L.Ed. 563 (1955). IV. A. [10] Hang On contends that excluding male breasts from the ordinance's definition of nudity violates the Equal Rights Amendment of the Texas Constitution. [FN3] Under Texas law, we must first determine whether the ordinance discriminates against one sex "simply on the basis of gender." Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex.App.-Fort Worth 1989, writ denied). FN3. "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin." Tex. Const, art. I, §3a. In MJR's Fare of Dallas v. City of Dallas, 792 S. W.2d 569, 575 (Tex.App.-Dallas 1990, writ denied), the Texas Court of Appeals held that the exclusion of male breasts from the definition of nudity did not constitute discrimination against women "solely on the basis of gender." The court noted that the city introduced evidence showing that physiological and sexual distinctions exist between male and female breasts; that female breasts differ internally and externally from male breasts; and that the female breast, unlike the male breast, is a mammary gland. Id. The court concluded that the definition of nudity excluded male breasts on grounds other than simply gender. Similarly, Arlington presented evidence to the district court showing that the Arlington city council considered the physiological and sexual distinctions between the female and male breasts. In sworn testimony presented to die city council, Dr. J. Douglas Crowder concluded that distinguishing between male and female breasts in defining nudity is "certainly consistent with what we know medically about human sexual response." Moreover, the preamble of the Ordinance itself proclaimed that the city council reviewed "[convincing documented evidence regarding the physiological and sexual distinctions between male and female breasts." By contrast, Hang On presented no evidence to the district court that Arlington's ordinance discriminated against women solely on the basis of gender. Hang On relies heavily on the Texas Court of Appeals' holding in Williams that the exclusion of male breasts from the definition of nudity discriminated against women solely on the basis of gender. In Williams the court of appeals noted that the plaintiff successfully Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 8 carried its burden of proof to show that the definition discriminated against women solely on account of gender because the city offered "no evidence about the differences in physical characteristics or how such differences relate to the ordinance's goal of preventing secondary neighborhood effects." 782 S.W.2d at 296 n. 2. Hang On's failure to offer any evidence regarding Arlington's decision to exclude male breasts from the definition of nudity, coupled with Arlington's introduction of evidence showing that Arlington's decision was not motivated by gender *1257 animus, distinguishes this case from Williams. We cannot let pass without comment the energy expended in the "trial" of such issues. Courts need no evidence to prove self-evident truths about the human condition—such as water is wet. Nor should they tarry long with such foolishness and, in the process, trivialize constitutional values intrinsic to our society. The district court correctly concluded that Arlington's definition of nudity did not discriminate against women solely on the basis of gender. B. [11] Hang On also claims that the application of the "no touch" provision to adult cabarets violates § 109.57 of the Texas Alcoholic Beverage Code because Arlington's "no touch" provision applies to adult cabarets, which normally have alcoholic beverage licenses, but does not apply to nude modeling studios, which do not have such licenses. Holding that Hang On never presented evidence to substantiate its claim, the district court granted summary judgment to Arlington on this issue. We agree that Arlington is entitled to summary judgment, not because Hang On failed to produce any evidence indicating a genuine issue of material fact, but because Hang On's legal theory is without merit. In Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489,492 (Tex. 1993), the Texas Supreme Court held that § 109.57 preempted a municipal ordinance prohibiting the sale of alcoholic beverages within 300 feet of a residential area. The court was quick to point out that municipalities retained the power to regulate businesses with alcoholic beverage licenses as long as those regulations did not discriminate against such businesses. The court explained: [ A]n ordinance requiring all businesses with the same kind of premises to have a fire extinguisher on their premises would not violate section 109.57(a). On the other hand, an ordinance requiring an alcohol related business to have two fire extinguishers and only requiring a non-alcohol related business with the same kind of premises to have one fire extinguisher would violate section 109.57(a). Id. at 492 n. 5. Arlington's "no touch" provision does not run afoul of § 109.57(a) because, unlike the fire extinguisher example from Dallas Merchants, its coverage of the set of businesses with alcoholic beverage licenses is both underinclusive and overinclusive. Application of Arlington's "no touch" provision to adult cabarets is underinclusive in that there are many businesses with alcoholic beverage licenses that do not qualify as adult cabarets and, therefore, are not subject to the "no touch" provision. The scope of Arlington's "no touch" regulation is also overinclusive in that adult cabarets not required to have alcoholic beverage licenses are still subject to Arlington's "no touch" provision. This loose fit between the regulatory scope of the "no touch" provision and businesses serving alcohol leads us to conclude that Arlington's ordinance does not impose stricter standards on alcohol-related businesses than it does on non-alcohol related businesses. Indeed, this loose fit is a far cry from the Dallas ordinance invalidated in Dallas Merchants, which regulated businesses if and only //they were in the business of selling alcohol. Arlington's decision to limit the application of the "no touch" provision to adult cabarets does not violate § 109.57(a) of the Texas Alcoholic Beverage Code. [FN4] FN4. Arlington's reliance on § 109.57(d) is unavailing since that provision only permits a municipality to regulate the location of a sexually oriented business. It does not purport to permit the regulation of the manner in which a sexually oriented business operates. V. [12] Finally, Hang On argues that' Arlington's enforcement of the Ordinance has been conducted in a harassing and offensive manner in violation of its Fourth Amendment rights. The district court rejected Hang On's claim, holding that Hang On presented no evidence that it was the policy of Arlington to enforce the Ordinance in a manner that violates Hang On's constitutional rights. We review the district court's grant of summary * 1258 judgment de novo, viewing the evidence in the light most favorable to Hang On. Richardson v. Oldham, 12 F.3d 1373, 1376 (5th Cir.1994). Hang On does not claim that it is the official policy of Arlington to harass adult cabarets and their patrons. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Indeed, Arlington's ordinance expresses the exact opposite policy. "[I]t is not the intent nor effect of this Chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market." Instead, Hang On claims that Arlington's policy may be inferred from the police officers' repeated visits on a nightly basis. Although the district court found that Hang On had presented evidence of a pattern or practice by Arlington of conducting the allegedly unconstitutional searches, the court correctly concluded that Hang On failed to present any evidence that policy-making officials in Arlington had any knowledge, actual or constructive, of the police officers actions during the investigative searches of Hang On's cabaret. The only evidence presented by Hang On to rebut Arlington's motion for summary j udgment was the affidavit of Andy Anderson, alleging that "defendant's agents" have entered its business "on multiple occasions" and that the officers' manners and actions became "more disruptive and abusive". [FN5] Mr. Anderson's affidavit noticeably omits any allegation that the principal of the "defendant's agents," i.e., the City of Arlington, had any knowledge of the action and behavior of its "agents". We find no record evidence that Arlington knew of and was deliberately indifferent to its police officers' conduct. Page 9 court, including its award of costs and attorney's fees to Arlington. 65 F.3d 1248 END OF DOCUMENT FN5. The district court did not rule on Arlington's numerous objections to the Anderson affidavit. On appeal, Arlington renews its objections. Given our disposition of the matter, we do not reach the issue whether the district court abused its discretion in considering the Anderson affidavit. Hang On responds that the district court's grant of summary judgment to Arlington dismissing Hang On's harassment claim was erroneously based on the heightened pleading requirement invalidated in Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Hang On fails to grasp the difference between a motion to dismiss and a motion for summary judgment. VI. We agree with the district court that Hang On's facial challenges to Arlington's "no touch" provision are without merit and that there was no genuine issue of material fact. We AFFIRM the judgment of the district Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 29 Pagel 941F.2dll57 (Cite as: 941 F.2d 1157) United States Court of Appeals, Eleventh Circuit. INTERNATIONAL EATERIES OF AMERICA, INC., Plaintiff-Appellant, v. BROWARD COUNTY, FLORIDA, Defendant-Appellee. No. 90-5076. Sept. 12, 1991. Action was brought challenging Florida county's ordinances prohibiting location of "adult nightclub" within 500 feet of residentially zoned district or 1,000 feet of church. The United States District Court for the Southern District of Florida, No. 88-6472-CIV-SMA, Sidney M. Aronovitz, J., 726 F.Supp. 1568, upheld constitutionality of ordinances. On appeal, the Court of Appeals, Rravitch, Circuit Judge, held that ordinances furthered substantial governmental interest in protecting quality of urban life from secondary effects of adult businesses, were narrowly tailored to serve that interest, and allowed for reasonable alternative avenues of communication. Affirmed. West Headnotes [1] Constitutional Law €=^90.4(2) 92k90.4(2) Most Cited Cases "Secondary effects test" must still be met in order to uphold statute regulating nude dancing under First Amendment challenge; this test requires that statute furthers substantial governmental interest, allows for reasonable alternative avenues of communication, and is narrowly tailored to serve government interest at issue. U.S.C.A. Const.Amend. 1. [2] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [2] Zoning and Planning O=>76 414k76 Most Cited Cases For purposes of First Amendment challenge, Florida county's distance ordinances, prohibiting location of "adult nightclubs" within 500 feet of residentially zoned district or 1 ,000 feet of church, furthered substantial governmental interest in protecting the quality of urban life from secondary effects of adult businesses. U.S.C.A. Const. Amend. 1. [3] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [3] Zoning and Planning 414k76 Most Cited Cases For purposes of First Amendment challenge, Florida county's distance ordinances, prohibiting location of "adult nightclubs" within 500 feet of residentially zoned district or 1,000 feet of church, were narrowly tailored to further county's interest in combating secondary effects of adult entertainment establishments, even if neighboring property values actually increased at higher rate after opening of particular establishment. U.S.C.A. Const.Amend. 1. [4] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [4] Zoning and Planning C=>76 414k76 Most Cited Cases Valid requirement as to distance separating adult nightclubs from residence zones or churches cannot become invalid by adding opportunity, albeit a difficult one to meet, for requirement to be waived, on theory that difficulty of waiver means ordinance is not narrowly tailored to further governmental interest. U.S.C.A. ConstAmend. 1. [5] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases [5] Zoning and Planning 414k76 Most Cited Cases For purposes of First Amendment challenge, Florida county's distance ordinances, prohibiting location of "adult nightclubs" within 500 feet of residentially zoned district or 1,000 feet of church, allowed for reasonable alternative avenues of communication, where there were 26 sites in unincorporated county where adult entertainment establishment could be located without violating distance ordinances. U.S.C.A. Const.Amend. 1. *1158 Richard L. Wilson, Orlando, Fla., for plaintiff-appellant. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 Tracy Lautenschlager, Ft. Lauderdale, Fla., for defendant-appellee. Appeal from the United States District Court for the Southern District of Florida. Before KRAV1TCH and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge. KRAVITCH, Circuit Judge: Appellant International Eateries of America, Inc. challenges Broward County, Florida's adult entertainment zoning ordinances as violative of the first amendment. Because we hold that the ordinances satisfy the standard set out by the Supreme Court in City ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), we reject International Eateries' challenge and affirm the decision of the district court. I International Eateries operates a nightclub known as "Thee Dollhouse III" in unincorporated Broward County, Florida. The parties have stipulated that the primary form of entertainment at Thee Dollhouse III is non-obscene nude dancing. In April 1986, appellee Broward County served two notices of violation upon International Eateries, informing it that Thee Dollhouse III was operating in violation of several Broward County zoning ordinances. The first notice stated that Thee Dollhouse III was in violation of the County's distance ordinances, which prohibit the location of adult nightclubs within 500 feet of a residential district and 1000 feet of a church. The second notice stated that Thee Dollhouse III was in violation of the County's special uses ordinances, which permit operation of adult nightclubs only within a special zoning district. It is undisputed that Thee Dollhouse III is within 500 feet of a residential district and that three residential properties are less than 500 feet away. It is also undisputed that a church is located approximately 885 feet from Thee Dollhouse III. Finally, it is undisputed that Thee Dollhouse III is not within the special uses zoning district. International Eateries filed an action in federal district court seeking to enjoin the County from enforcing the ordinances. The district court stayed the proceedings until International Eateries had pursued administrative remedies with the County. International Eateries then applied to the County for a rezoning of the property and to the County Board of Adjustment for a variance from the distance requirements. The County denied the application for rezoning and therefore had no reason to act on the variance application. In its first opinion, International Eateries v. Broward County, 726F.Supp. \556(S.D.¥\a.mi)("Dollhouse I "), the district court held that the special uses ordinances as applied to International Eateries violated the first amendment because the ordinances did not advance a substantial government interest and did not leave available alternative channels for International Eateries to conduct its business. Dollhouse I, 726 F.Supp. at 1566-67. As for the distance ordinances, the court held that they were not unconstitutional on their face, and that International Eateries' as-applied challenge was premature because the County had not yet ruled on the application for a variance. Id at 1563-64. International Eateries then filed a petition with the County's Building and Zoning Enforcement Division, seeking an automatic waiver of the 500-foot residential district prohibition. That ordinance states that the 500-foot requirement shall be waived upon presentment of "a written petition requesting the waiver, signed by 51 percent of all those persons owning real property, residing or operating or managing a business within 500 feet of the proposed location of the designated use." International Eateries' petition contained the names of eight persons residing or owning property in the residential district. Although this was a majority of the owners and residents of the *1159 area, the County denied the petition because it interpreted the ordinance as also requiring signatures of operators and managers of businesses within the area. International Eateries also requested waivers of the distance ordinances from the County's Planning and Zoning Board and from the County Commission, but these requests were denied. In June 1988, International Eateries again filed an action in district court seeking to enjoin enforcement of the distance ordinances. The district court again denied relief, this time finding the ordinances valid as applied. International Eateries v. Broward County, 726 F.Supp. 1568 (S.D.Fla.1989) ("Dollhouse II "). International Eateries now appeals the district court's decision in Dollhouse II. II The regulation of non-obscene [FN1] nude dancing often has been addressed in the federal courts. On several occasions, the Supreme Court has assumed, without deciding, that nude dancing is protected expression under the first amendment. See Schad v. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 3 Borough of 'MountEphraim, 452 U.S. 61,66,101 S.Ct. 2176, 2181,68 L.Ed.2d 671 (1981) ("nude dancing is not without its First Amendment protections from official regulation"); see also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). In a related context, the Supreme Court has held that under some circumstances cities may enact zoning ordinances that require adult movie theatres to locate only in certain areas, provided that the purpose of the regulation is to control the "secondary effects" of these businesses. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). These cases have been applied by the lower federal courts to the regulation of nude dancing. See, e.g., International Food & Beverage Systems v. City of Fort Louder dale, 794 F.2d 1520 (11th Cir. 1986); SDJ, Inc. v. City of Houston, 837F.2d 1268 (5th Cir. 1988); Envy Ltd. v. City of Louisville, 734 F.Supp. 785 (W.D.Ky.1990). FN1. Obscenity is not protected by the first amendment, see Miller v. California, 413 U.S. 15,93 S.Ct. 2607,37 L.Ed.2d419(1973), and is not at issue in this case. This term, the Supreme Court squarely addressed the protection afforded to nude dancing under the first amendment. In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), respondents sought to enjoin enforcement of Indiana's public indecency statute. Respondents contended that the statute, which prohibited "appealing] in a state of nudity" in a public place, was invalid as applied to the nude dancing performed at two establishments. Although the Court upheld the statute, the effect of the Court's plurality holding on our case is not readily apparent. Keeping in mind that" [w]hen 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,'" Marks v. United States, 430 U.S. 188,193,97 S.Ct. 990,993,51 L.Ed.2d260 (1977), we examine in greater detail the three opinions that made up the five-member majority. Chief Justice Rehnquist, writing for Justices O'Connor and Kennedy, began his analysis by noting that the statements hi Schad, Doran, and LaRue discussed above "support the conclusion of the Court of Appeals 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." Id. at 2460 (opinion of Rehnquist, C.J.). In order to determine "the level of protection to be afforded to the expressive conduct at issue," the opinion analyzed the statute under the four-part inquiry of *n60UnitedStates v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), the framework applied to symbolic speech. The second prong of that test requires that the statute further an important or substantial government interest. Although the Chief Justice's opinion noted that "[i]t is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind," the opinion nevertheless concluded that "the statute's purpose of protecting societal order and morality is clear," Barnes, 111 S.Ct. at 2461, and that such a purpose furthers a substantial governmental interest. Id. at 2462. O'Brien 's third prong requires that the interest to be protected is unrelated to the suppression of free expression. Here, the opinion stated that because the statute did not prohibit nude dancing, but rather all public nudity, the statute was not intended to suppress expression. Id. Ill S.Ct. at 2463. Finally, O'Brien requires that the restriction on free expression be no greater than is essential to the furtherance of that interest. Here, Chief Justice Rehnquist concluded that Indiana's requirement of pasties and a G-string was the "bare minimum" necessary to achieve the state's interest. Id. Justice Scalia concurred in the judgment, but not the reasoning, of the plurality. According to Justice Scalia, "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." Id. (Scalia, J., concurring). Because the statute was not covered by the first amendment, it only needed to survive rational-basis review to be valid under the Due Process Clause~a test that was easily met according to Justice Scalia. Id. Ill S.Ct. at 2468. Justice Souter, the fifth Justice to uphold the statute, agreed with Chief Justice Rehnquist's opinion that nude dancing is subject to first amendment protection, and also agreed that the statute should be analyzed under O'Brien. He further stated, however, that "I nonetheless write separately to rest my concurrence in Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 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 entertainment establishments of the sort typified by respondents' establishments." Id. Ill S.Ct. at 2468 (Souter, J., concurring) (emphasis added). Justice Souter explained his difference with the plurality as follows: 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." 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," I think that we need not so limit ourselves in identifying the justification for the legislation here, and may legitimately consider petitioners' assertion that the statute is applied to nude dancing because such dancing "encourag[es] prostitution, increases] sexual assaults, and attractfs] other criminal activity." Id. at 2469 (ellipses and brackets original, citations omitted). The only legally significant difference between the opinions of the Chief Justice and of Justice Souter is the societal interest viewed as sufficient to allow the government regulation. Thus, in applying the second prong of O'Brien— furtherance of a substantial government interest—according to the plurality, society has a substantial interest in protecting order and morality; according to Justice Souter, morality may not be a substantial government interest, but combatting the secondary effects of adult entertainment establishments is. As for the third prong, content neutrality, the plurality found that the statute was neutral because it was aimed at all public nudity, rather than only nude dancing; Justice Souter found this prong satisfied because the statute is aimed at secondary effects, rather than at nude dancing itself. [1] *1161 Prior to Barnes, our decision would have been guided by the secondary-effects analysis of Renton, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Having examined the opinions in Barnes, we conclude, for two reasons, that this is still the case. First, Justice Souter, whose vote was necessary to uphold the statute, stated that morality justifications were not a substantial government interest, but that control of secondary effects did constitute such an interest. Thus, in order to uphold a statute regulating nude dancing, it is still necessary after Barnes that the statute meet the secondary effects test of Renton. Second, the statute at issue in Barnes and the ordinance at issue in this case are different in a significant respect. In Barnes, the statute prohibited all public nudity, regardless of its expressive content. Here, Broward County's distance ordinances only apply to "designated uses," which include the "adult nightclub" involved in this case. Justice Scalia, whose vote was also necessary to uphold the statute in Barnes, based his analysis on the "general" nature of the statute and specifically noted that "[w]here the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional." Barnes, 111 S.Ct.at2466(Scalia,J., concurring) (emphasis original). Thus, Justice Scalia's analysis would not apply to a statute like the one in this case that singles out nude dancing rather than broadly prohibiting all public nudity. Although this discussion does not explain how the Supreme Court would rule in the instant case, it does make clear that the judgment reached by a majority of the Justices in Barnes does not directly govern our case. This being so, we conclude that Renton still controls our analysis. B In Renton, the Supreme Court addressed the validity of an ordinance that prohibited adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Relying on Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), which upheld a zoning ordinance that limited the showing of adult films to certain locations, the Court noted that "zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to 'content- neutral' time, place, and manner regulations." Renton, 475 U.S. at 49, 106 S.Ct. at 929-30. The Court stated that the inquiry, therefore, was whether "the ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication." Id. at 50, 106 S.Ct. at 930. [FN2] FN2. It might be argued that because we are addressing a regulation of nude dancing, as was the Court in Barnes, rather than a regulation of motion pictures, as was the Court in Renton, we should apply the O'Brien "symbolic conduct" analysis rather than the Court's "time, place, and manner" analysis. In O'Brien, the Court stated that a statute regulating symbolic conduct was valid if it is within the constitutional power of the Government; if it furthers an important or Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS substantial government 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. O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679. There has been considerable confusion in the Court's cases as to when each analysis should apply. In recent years, however, the Court has stated several times that "in the last analysis [the O'Brien test] is little, if any, different from the standard applied to time, place, or manner restrictions." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 3071, 82 L.Ed.2d 221 (1984); see also Barnes, 111 S.Ct. at 2460 (opinion of Rehnquist, C.J.) (noting the similarities and applying O'Brien ); Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 2757, 105 L.Ed.2d 661 (1989) (noting the similarities and applying time, place, and manner analysis). Although the wisdom of this trend toward a single standard has been questioned, see S. Williams, Content Discrimination and the First Amendment, 139 U.Pa.L.Rev. 615, 636-54 (1991), it is sufficient for our purposes that the Supreme Court has determined that under current Court doctrine the answer should be the same regardless of which analysis is used. Because we conclude that the ordinance at issue in this case more closely resembles the ordinance in Renton than the statute in Barnes, we follow Renton and apply time, place, and manner analysis. Before applying this test, we note that although the Court in Renton stated the *1162 inquiry as containing two elements (serving a substantial government interest and allowing for reasonable alternative avenues of communication), the Court's time, place, and manner cases generally have required a third element: the regulation must be narrowly tailored to serve the government interest at issue. In fact, when the Renton Court enunciated the test as containing two parts, it cited two cases, both of which addressed the narrow-tailoring requirement. See Clark v. Community for CreativeNon-Violence, 468 U.S. 288,293-96,104 S.Ct. 3065, 3069-70, 82 L.Ed.2d 221 (1984); Heffron v. International Soc'yfor Krishna Consciousness, Inc., 452 U.S. 640, 654, 101 S.Ct. 2559, 2567, 69 L.Ed.2d 298 (1981). Moreover, the Court has required the narrow-tailoring element in cases decided after Renton, See, e.g., Wardv. Rock Against Racism. 491 U.S. 781, 109 S.Ct. 2746, 2756-60, 105 L.Ed.2d 661 (1989); Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 2502-04,101 L.Ed.2d420 (1988). Finally, although the Renton Court did not specifically include narrow tailoring in its formulation of the standard to be applied, the Court later examined "the method chosen by Renton to further its substantial interests," and found that that method was "narrowly tailored" to further the government interest in that case. Renton, 475 U.S. at 52, 106 S.Ct. at 931. Thus we do not believe that the Renton Court intended to eliminate the narrow- tailoring requirement from time, place, and manner analysis, and we therefore consider that requirement in our analysis below. Ill A [2] We first address whether Broward County's ordinances further a substantial government interest. In Renton, the Court recognized that a city's interest in protecting the quality of urban life from the secondary effects of adult businesses is indeed substantial. Renton, 475 U.S. at 50,106 S.Ct. at 930. The distance ordinances prohibit the location of an "adult nightclub" within 500 feet of a residentially zoned district or 1000 feet of a church. The ordinances also specifically state that certain businesses have a "deleterious effect" on the residential and business areas around them and that the purpose of the ordinance is to "ensure that these adverse effects will not contribute to the blighting and downgrading of the surrounding neighborhood." Thus, the ordinances are aimed at the very type of harm that the Renton Court found to create a substantial government interest. [FN3] FN3. Justice Souter, the only Justice to rely on Renton in Barnes, found that secondary effects were a substantial government interest despite the fact that the statute was silent as to its purpose. See Barnes, 111 S.Ct. at 2469 ("It is, of course, true that this justification has not been articulated by Indiana's legislature or by its courts."). The ordinance at issue in Renton specifically stated that adult businesses "would have a severe impact upon surrounding businesses and residences." Renton, 475 U.S. at 44, 106 S.Ct. at 927. Because Justice Souter wrote only for himself in Barnes, we continue to follow the Renton Court's approach of gleaning the government interest at stake from the ordinance itself rather than implying one where none is evident in the ordinance. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 The Renton Court also recognized, however, that the enacting body must have a reasonable basis for its belief that the harm to be protected against in fact exists. The city need not conduct its own studies to make this determination. According to the Court: 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. Id. at 51-52, 106 S.Ct. at 931. Here, the district court found that Broward County relied on the experiences of Detroit in enacting its ordinances. Detroit's distance ordinances were upheld in Young v. American Mini Theatres. International Eateries *1163 argues, however, that because the County's ordinances were not modeled exactly after those of Detroit, Detroit's studies should not suffice to justify the County's ordinances. The Supreme Court answered this argument in Renton Nor is our holding affected by the fact that Seattle ultimately chose a different method of adult theater zoning than that chosen by Renton, since Seattle's choice of a different remedy to combat the secondary effects of adult theaters does not call into question either Seattle's identification of those secondary effects or the relevance of Seattle's experience to Renton. Renton, 475 U.S. at 52, 106 S.Ct. at 931. We therefore conclude that Broward County's distance ordinances further a substantial government interest. B [3] We next address whether the distance ordinances are narrowly tailored to further the County's interest in combatting the secondary effects of adult entertainment establishments. In Renton, the Court stated that the ordinance was narrowly tailored because it affected "only that category of theaters shown to produce the unwanted secondary effects...." Renton, 475 U.S. at52, 106 S.Ct. at 931. Here, the ordinances are of a similarly limited scope, focusing only on those businesses likely to produce secondary effects. International Eateries argues, however, that there is no indication that a single nude dancing establishment causes deterioration of the surrounding area. According to International Eateries, the ordinances are designed to prevent the concentration of such establishments. While it is true that the ordinances prohibit the location of an adult nightclub within 1,000 feet of another adult business, the ordinances are not only concerned with concentrations of adult establishments. The ordinances separately prohibit adult businesses from locating near other uses such as residential areas, churches, and schools. The County obviously determined that even a single adult business could have deleterious effects on these property uses. So long as the distance requirements are not greater than necessary to prevent the secondary effects, they are narrowly tailored to serve their purpose. In this case, the distances required by the ordinances are no farther than those approved by the Court in Renton ; thus we cannot say the requirements are not narrowly tailored. International Eateries further argues that there is uncontradicted evidence in the record that Thee Dollhouse III has not in fact caused any adverse effects on surrounding property values and that property values have actually increased at a higher rate than before the opening of Thee Dollhouse III. This argument holds no weight. As discussed above, Broward County appropriately tailored its distance ordinances to further its substantial government interest. If the decision was valid ex ante, International Eateries cannot justify violating the ordinances by showing that they were unwise ex post. [4] International Eateries also challenges the waiver provision of the residential distance requirement. That provision allows the residential distance requirement to be waived upon presentment of a petition signed by "51 percent of all those persons owning real property, residing or operating or managing a business within 500 feet of the proposed use." Although International Eateries presented a petition containing the signatures of a majority of those persons owning real property or residing within 500 feet of Thee Dollhouse III, the County interpreted the ordinance as requiring a majority of all the persons listed in the provision and therefore denied the waiver request. International Eateries contends that the waiver provision is not narrowly tailored because the ordinance is designed to protect property values of residents, yet it allows businesses to block a waiver. International Eateries notes that if residential property was not located in the vicinity, those businesses would have no right to object to the location of the establishment. Thus, according to appellant, it is absurd to allow an unprotected group to thwart the *1164 waiver when a majority of the very group the ordinance was designed to protect has given its consent. We are unpersuaded by this argument. First, appellant has pointed to no authority indicating that the County is even required to provide a waiver opportunity. The Court in Renton upheld similar distance requirements Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? and made no mention of any opportunity for a party to have the requirements waived. Also, the other ordinance at issue in this case, the church distance requirement, does not have a waiver provision, and International Eateries has not argued that one is required. Thus, we fail to see how a valid distance requirement can become invalid by adding an opportunity, albeit a difficult one to meet, for the requirement to be waived. [FN4] Moreover, the fact that the ordinance prohibits adult entertainment within 500 feet of a residential area does not mean that the ordinance is concerned only with residents. The ordinance specifically addresses the secondary effects of adult businesses "upon the adjacent business and residential areas" (emphasis added). Certain businesses are more likely to locate near residential areas than are other businesses, and those businesses may be more likely to be injured by the proximity of adult entertainment. The County was entitled to take this into account. [FN5] FN4. Of course, a waiver provision that allowed for arbitrary enforcement would be invalid. See City of Lakewood v. Plain Dealer Publishing, Co., 486 U.S. 750, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988) ("[I]n the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship."); see also Shnttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). In this case, however, the waiver provision leaves no room for arbitrary enforcement. It specifically states that a waiver "shall" be granted upon the presentment of the requisite number of signatures. FN5. International Eateries also argues that the County improperly interpreted the waiver provision. According to International Eateries, the use of the term "or" in the provision indicates that a majority of any of the groups listed in the provision is sufficient to obtain a waiver. We have no power to decide this issue. The interpretation of the County ordinance is purely a matter of state law. So long as the County applies the ordinance consistently, we are empowered only to determine whether that interpretation withstands constitutional scrutiny. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981); Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 643, 101 S.Ct. 2559, 2562, 69 L.Ed.2d 298 (1981); G. Gunther, Constitutional Law 1153 n. ll(llthed. 1985). Finally, International Eateries argues that the church distance ordinance is not narrowly tailored because it has a distance requirement of 1,000 feet, and the County has not provided a sufficient justification for why the requirement needs to be twice the distance of the 500-foot residential requirement. International Eateries points to Walnut Properties, Inc. v. City of Whittier, 808 F.2d 1331 (9th Cir.1987), to support its argument. That opinion arose out of a dispute involving an ordinance, like the one at issue in this case, that prohibited the location of an adult business within 1,000 feet of a church. The district court originally held that the ordinance was invalid, and the Ninth Circuit affirmed. Walnut Properties, Inc. v. City of Whittier, 762 F.2d 1020 (9th Cir. 1985). The Supreme Court, however, issued its opinion in Renton shortly thereafter and then remanded the case for reconsideration in light of Renton. City of Whittier v. Walnut Properties, Inc., 475 U.S. 1042, 106 S.Ct. 1255, 89 L.Ed.2d 566 (1986). The opinion cited by International Eateries was the order by the Ninth Circuit remanding the case to the district court. In its instructions to the district court, the court stated: "[T]he City's interest in preventing urban blight and downgrading of residential and commercial properties might logically support the ordinance's requirement that adult businesses be 1,000 feet apart, but it might not support the requirement that they be 1,000 feet from a church." Walnut Properties, 808 F.2d at 1335. This statement was merely one of several comments made by the court to guide the district court's analysis. The court was not ruling on the church distance *1165 requirement. After remand to the district court, the district court again held the ordinance invalid, and the Ninth Circuit affirmed. Walnut Properties, Inc. v. Cily of Whittier, 861 F.2d 1102, 1107-10 (9th Cir. 1988), cert, denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 L.Ed.2d 157 (1989). The appellate court specifically limited its holding, stating that it was based entirely on the fact that there were not adequate alternative locations in the city for adult businesses. Id. Thus, contrary to International Eateries' assertion, the case does not stand for the proposition that a 1,000-foot church distance ordinance is excessive. Rather, the case simply follows the Renton analysis, holding that where there are not sufficient alternative locations, an ordinance zoning adult businesses is invalid. We therefore hold that in this case the ordinances are narrowly tailored to serve their purpose. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS [5] Finally, unlike the ordinance in Walnut Properties, the Broward County ordinances allow for reasonable alternative avenues of communication. It is undisputed that there are twenty-six other sites in unincorporated Broward County where International Eateries could locate an adult entertainment establishment without violating the distance ordinances. International Eateries does not argue that the ordinances are invalid in this respect. IV In view of the above discussion, we hold that the Broward County distance ordinances are valid under the Supreme Court's analysis in Renton. AFFIRMED. 941F.2dll57 END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 30 Page 1 Copr. © West 2001 No Claim to Orig. U.S. Govt. Works 258F.3d 1108 00 Cal. Daily Op. Serv. 6436, 2001 Daily Journal D.A.R. 7923 (Cite as: 258 F.3d 1108) United States Court of Appeals, Ninth Circuit. George ISBELL, Jr.; G and B Emporia Incorporated, dba Adult Emporium No. 1, Plaintiffs-Appellants, v. CITY OF SAN DIEGO, a municipal corporation, Defendant-Appellee. No. 99-55591. Argued and Submitted Nov. 15, 2000 Filed July 31,2001 Proposed owner of adult entertainment business brought action against city, alleging adult entertainment zoning ordinance violated First Amendment and standards for a variance violated Equal Protection Clause. The United States District Court for the Southern District of California, Irma E. Gonzalez, J., granted summary judgment in favor of city, and owner appealed. The Court of Appeals, Canby, Circuit Judge, held that: (1) owner's conclusion that 107 of 110 potential sites for his proposed business were commercially unavailable was unreliable; (2) city's list of 110 commercially available sites was fatally flawed; (3) city failed to establish constitutionality of zoning ordinance by showing sufficient available sites; (4) so long as available sites existed, ordinance was not unconstitutional as applied to owner; and (5) city had reasonable basis for variance standard, and thus owner was not denied equal protection. Affirmed in part, and reversed in part. West Headnotes [1] Federal Courts k776 170BR776 District court's award of summary judgment is reviewed de novo. [2] Federal Civil Procedure k2543 170Ak2543 For purposes of summary judgment, courts must consider the evidence in the light most favorable to the non-moving party. [3] Zoning and Planning k76 414k76 Dispersal ordinances designed to separate adult entertainment establishments from each other and from several other types of uses are aimed at controlling the secondary effects of adult establishments, and are constitutional if they are designed to serve a substantial governmental interest and allow for reasonable alternative avenues of communication. U.S.C.A. Const. Amend. 1. [4] Constitutional Law k48(4.1) 92k48(4.1) Claim that an adult entertainment zoning ordinance does not offer reasonable alternative means of communication can be addressed only by analyzing the effect of the ordinance under the actual conditions prevailing in the city, and the burden of persuasion is on the city to demonstrate that its ordinance provides reasonable alternative avenues of communication. U.S.C.A. Const. Amend. 1. [5] Constitutional Law k90.4(3) 92k90.4(3) To decide whether constitutionally sufficient alternative avenues of communication exist under an adult entertainment zoning ordinance, courts first have to determine how many alternative sites are available, and then determine whether that number is sufficient to afford adult establishments a reasonable opportunity to locate. U.S.C.A. Const. Amend. 1. [6] Constitutional Law k90.4(3) 92k90.4(3) [6] Zoning and Planning k76 414k76 Page 2 Conclusion that 107 of 110 potential sites for a proposed adult entertainment business were commercially unavailable was unreliable, for purpose of determining whether alternative avenues of communication were available under city's adult entertainment zoning ordinance, where proposed owner of adult entertainment business failed to take length of leases into consideration, thereby disregarding fact that sites leased for short term could potentially be available, and excluded vacant lots from survey. U.S.C.A. Const.Amend. 1; San Diego, Cal. Mun.Code. § 101.1810. [7] Constitutional Law k90.4(3) 92k90.4(3) For alternative sites to be available, for purposes of determining whether alternative avenues of communication are available under an adult entertainment zoning ordinance, they must be in the actual business real estate market. U.S.C.A. Const. Amend. 1. [8] Constitutional Law k90.4(3) 92k90.4(3) For purposes of determining whether constitutionally sufficient alternative sites are available under an adult entertainment zoning ordinance, it is not relevant whether a site will result in lost profits, higher overhead costs, or even prove to be commercially infeasible for an adult business; the issue is whether any site is part of an actual market for commercial enterprises generally. U.S.C.A. Const.Amend. 1. [9] Constitutional Law k90.4(3) 92k90.4(3) A long-term lease may exclude a site from the commercial market, for purposes of determining whether constitutionally sufficient alternative sites are available under an adult entertainment zoning ordinance. U.S.C.A. Const.Amend. 1. [10] Constitutional Law k90.4(3) 92k90.4(3) For purposes of determining whether constitutionally sufficient alternative sites are available under an adult entertainment zoning ordinance, some relevant considerations in determining whether a site is reasonably within business real estate market are: (1) a relocation site is not part of the market if it is unreasonable to believe that it would ever become available to any commercial enterprise; (2) a relocation site in a manufacturing or industrial zone that is reasonably accessible to the general public may also be part of the market; (3) a site in a manufacturing zone that has proper infrastructure may be included in the market; (4) a site must be reasonable for some generic commercial enterprise, although not every particular enterprise, before it can be considered part of the market; and (5) a site that is commercially zoned is part of the relevant market. U.S.C.A. Const.Amend. 1. [11] Constitutional Law k90.4(3) 92k90.4(3) For purposes of determining whether constitutionally sufficient alternative sites are available under an adult entertainment zoning ordinance, a site must obviously satisfy the conditions of the zoning ordinance in question. U.S.C.A. Const.Amend. 1. [12] Constitutional Law k90.4(3) 92k90.4(3) [12] Zoning and Planning k76 414k76 City's list of 110 commercially available sites for a proposed adult entertainment business was fatally flawed, for purpose of determining whether alternative avenues of communication were available under city's adult entertainment zoning ordinance, where list ignored ordinance's separation requirement of 1000 feet between adult establishments. U.S.C.A. Const.Amend. 1; San Diego, Cal. Mun.Code. § 101.1810. [13] Constitutional Law k90.4(3) 92k90.4(3) [13] Zoning and Planning k76 414k76 Forty-five sites did not suffice to establish reasonable alternative avenues of communication, and thus city failed to establish constitutionality of adult entertainment establishments zoning ordinance, where city offered no evidence of total demand in relation to supply, or number of adult businesses in comparable communities. U.S.C.A. Const.Amend. 1; San Diego, Cal. Mun.Code. § 101.1810. Page 3 [14] Constitutional Law k90.4(3) 92k90.4(3) An ordinance restricting adult entertainment establishments will not be automatically constitutional if demand does not exceed the supply of commercially available sites, because such a conclusion is insufficient to account for the chilling effect that an adult use zoning ordinance may have on prospective business owners. U.S.C.A. Const.Amend. 1. [15] Constitutional Law k90.4(3) 92k90.4(3) Supply and demand should be only one of several factors that a court considers in determining whether constitutionally sufficient alternative sites are available under an adult entertainment zoning ordinance; a court should also look to a variety of other factors including, but not limited to, the percentage of available acreage theoretically available to adult businesses, the number of sites potentially available in relation to the population, community needs, the incidence of adult businesses in other comparable communities, and the goals of the city plan. U.S.C.A. Const.Amend. 1. [16] Constitutional Law k90.4(3) 92k90.4(3) Appropriate question in determining whether zoning ordinance requiring 1000- foot separation between adult entertainment establishments violates First Amendment is not whether ordinance is perfectly tailored to specific case; rather, it is whether the 1000-foot requirement generally serves a substantial government interest. U.S.C.A. Const.Amend. 1. [17] Zoning and Planning k76 414k76 Cities may regulate adult theatres by dispersing them or by effectively concentrating them. [18] Constitutional Law k90.4(3) 92k90.4(3) [18] Zoning and Planning k76 414k76 So long as city provided reasonable alternative avenues of communication, it would be permitted to require adult businesses without exception to be located more than 1000 feet from a residential area, and thus ordinance was not unconstitutional as applied to proposed owner of adult entertainment business, even though owner's proposed business would be 900 feet away from residential area and separated by adjacent freeway. U.S.C.A. Const.Amend. 1; San Diego, Cal. Mun.Code. § 101.1810. [19] Zoning and Planning k76 414k76 So long as alternative avenues of expression are provided, a city may choose to treat adult businesses differently from other businesses, and even may treat one category of adult businesses differently from other categories of adult businesses. U.S.C.A. Const.Amends. 1, 14. [20] Constitutional Law k90.4(3) 92k90.4(3) [20] Zoning and Planning k87 414k87 City had a reasonably conceivable basis for differing variance standards, and thus zoning ordinance regulating secondary effects of adult businesses did not violate equal protection rights of proposed owner of adult entertainment business, since secondary effects of adult businesses were arguably more extreme than those of other businesses. U.S.C.A. Const.Amend. 14; San Diego, Cal. Mun.Code. § 101.1810. [21] Constitutional Law k90.4(l) 92k90.4(l) A regulation of secondary effects of adult businesses is not a regulation of content; a classification of adult businesses therefore does not impinge on a fundamental right, nor does it involve a suspect classification. U.S.C.A. Const.Amend. 14. [22] Constitutional Law k228.2 92k228.2 A zoning ordinance regulating secondary effects of an adult entertainment establishment may survive an equal protection challenge if it has a rational basis. U.S.C.A. Const.Amend. 14. [23] Constitutional Law k213.1(2) 92k213.1(2) Page 4 Under rational basis analysis, a classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification; a state has no obligation to produce evidence to sustain the rationality of a statutory classification. U.S.C.A. Const.Amend. 14. *1111 John B. Barriage, San Diego, California, for the plaintiffs- appellants. Carra L. Lassman, Deputy City Attorney, San Diego, California, for the defendant-appellee. Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding D.C. No. CV-98-00688- IEG/JFS. Before: CANBY, MCKEOWN, and PAEZ, Circuit Judges. CANBY, Circuit Judge: This case presents a constitutional challenge to the City of San Diego's adult entertainment zoning ordinance. The appellant, George Isbell, Jr., contends that the City's ordinance violates the First Amendment and the Equal Protection Clause by preventing him from operating an adult entertainment business. [FN1] The district court granted summary judgment for the City on all claims. FN1. Isbell's corporation, G & B Emporia, Inc., is also a plaintiff, but we use the singular "Isbell" for convenience. We affirm the award of summary judgment to the City on two of Isbell's claims. We reverse, however, the summary judgment for the City on one of Isbell's First Amendment claims. We conclude that the City has not adduced sufficient evidence to establish that there are "reasonable alternative avenues of communication" in San Diego, and the City accordingly is not entitled to summary judgment on that claim. City ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). BACKGROUND In 1997, Isbell purchased a building in San Diego with the intention of opening an adult entertainment establishment there. Because this building was located within 1000 feet of a residential area, however, a *1112 San Diego zoning ordinance precluded him from operating there. See San Diego Mun.Code. § 101.1810. Isbell applied for a variance, but was unsuccessful. He then filed this action, arguing that the City's ordinance violates the First Amendment, and that its standards for variances violate the Equal Protection Clause. The district court awarded summary judgment to the City on all claims. DISCUSSION [1][2] We review de novo the district court's award of summary judgment. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en bane). For purposes of summary judgment, we must consider the evidence in the light most favorable to Isbell, the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). I. First Amendment Challenge-Reasonable Alternatives. The San Diego ordinance in issue is designed to separate adult entertainment establishments from each other and from several other types of uses. It provides, in pertinent part: No person shall cause or permit the establishment, enlargement or transfer of ownership or control of any adult establishment if such establishment is within 1000 feet of another such business, 1000 feet of any residential zone, or within 1000 feet of any church, school, public park or social welfare institution within the City of San Diego. San Diego Mun.Code § 101.1810. This "separation" approach was initially upheld by the Supreme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), (plurality opinion) and we have subsequently addressed ordinances identical or similar to the San Diego ordinance. See, e.g., Walnut Properties, Inc. v. CityofWhittier, 861 F.2d 1102 (9th Cir.1988); Diamond v. City of Toft, 215 F.3d 1052 (9th Cir.2000); Urn v. City of Long Beach, 217 F.3d 1050 (9th Cir.2000). [3] [4] Dispersal ordinances of this type that are aimed at controlling the secondary effects of adult establishments are constitutional if they are "designed to serve a substantial governmental interest and allow [ ] for reasonable alternative avenues of communication." See City ofRenton, 475 U.S. at 50, 106 S.Ct. 925. Isbell does not Page 5 dispute that San Diego's ordinance generally is designed to serve a substantial governmental interest; he argues only that it does not offer reasonable alternative avenues. That claim can be addressed only by analyzing the effect of the ordinance under the actual conditions prevailing in the City. See id. at 53, 106 S.Ct. 925. The burden of persuasion is on the City to demonstrate that its ordinance provides reasonable alternative avenues of communication. SeeLim, 217 F.3d at 1054. [FN2] FN2. The district court, not having the benefit of our subsequent decision in Lim, improperly assumed that Isbell bore the burden of demonstrating that the City did not provide reasonable alternative avenues of communication. [5] To decide whether constitutionally sufficient alternatives exist, we first have to determine how many alternative sites are available, see Walnut Properties, 861 F.2d at 1108, and then determine whether that number is sufficient to afford adult establishments a reasonable opportunity to locate, see Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1532-33 (9th Cir.1993). (a) The number of alternative sites available. [6][7][8][9][10][11] For sites to be available, they must be in the "actual business real estate H113 market." Lim, 217 F.3d at 1055. [FN3] Here, the City presented a list of 110 parcels, constituting approximately 92 acres, that it asserted were available for adult entertainment establishments. [FN4] Isbell examined these sites and asserted that only 3 were actually available. Isbell's figure, however, is flawed. He contends, for example, that parcels occupied by such businesses as car dealerships or plumbing supply outlets could not be part of the relevant business real estate market because they were not economically suited for his business. But "it is not relevant whether a ... site will result in lost profits, higher overhead costs, or even prove to be commercially infeasible for an adult business. The issue is whether any site is part of an actual market for commercial enterprises generally." Topanga Press, 989 F.2d at 1531. Isbell also excluded sites occupied by existing adult entertainment businesses and other sites under lease. Although a long-term lease may exclude a site from the commercial market, see Lim, 217 F.3d at 1055, Isbell did not take the length of leases into consideration, thereby disregarding the fact that those sites could be potentially available. He also excluded vacant lots from his tally of available sites. Isbell's survey accordingly cannot be relied upon, and we reject his contention that 107 of the 110 sites offered by the City were outside the commercial real estate market. [FN5] FN3. Some relevant considerations in determining whether a site is reasonably within the business real estate market are: "(1) a relocation site is not part of the market if it is 'unreasonable to believe that it would ever become available to any commercial enterprise;' (2) a relocation site in a manufacturing or industrial zone that is 'reasonably accessible to the general public' may also be part of the market; (3) a site in a manufacturing zone that has proper infrastructure may be included in the market; (4) a site must be reasonable for some generic commercial enterprise, although not every particular enterprise, before it can be considered part of the market; and (5) a site that is commercially zoned is part of the relevant market.... In addition, a site must obviously satisfy the conditions of the zoning ordinance in question." Lim, 217 F.3d at 1055 (quoting Topanga Press, 989F.2dat 1531). FN4. The study performed by the City examined only two communities, and apparently disregarded 43 out of the 45 communities in San Diego. These two communities were selected because they had the highest concentration of adult entertainment businesses. In arriving at the conclusion that there were 45 existing adult businesses in San Diego, however, the City apparently examined two additional neighborhoods. The City faults Isbell for surveying only the communities that San Diego studied in its own report. Isbell, however, is not obligated to show a lack of alternatives in the unstudied communities. Instead, these communities are presumed to have no available sites, because the initial burden to demonstrate available sites rests on the City. FN5. If the City had provided "a good faith and reasonable list of potentially Page 6 available properties," it would then become Isbell's burden to show that "certain sites would not reasonably become available." Lim, 217 F.3d at 1055. For reasons shortly to be explained, however, we conclude that the City did not provide a reasonable list of potentially available properties. [12] The City's list of 110 sites is subject, however, to a different and fatal flaw. It ignored the separation requirement of 1000 feet between adult establishments. In determining the number of sites available for adult businesses, that requirement must be taken into account. See Walnut Properties, 861 F.2d at 1108. There is no question that, when this separation requirement is taken into account, far fewer than 110 adult businesses could operate at the City-identified sites; indeed, the City conceded that point at oral argument. Because the separation requirement was not taken into account, the record provides no means of determining just how many of the 110 sites are actually available. *1114 It is not appropriate in this case to regard Isbell in isolation, and conclude that he, acting alone, could locate his establishment at any of the 110 spots that is not within 1000 feet of an existing adult business. It is true that in Diamond, 215 F.3d at 1052, we considered the plaintiff alone and concluded that all seven sites identified by the city were available to him, even though seven adult businesses could not operate simultaneously on those sites because of a separation requirement. But Diamond was a special case: Diamond was the first person even to seek to open an adult business in the City of Taft. See id. at 1057-58. In Lim, decided the same day as Diamond, we reviewed a decision in which the district court had determined that, on the 115 sites identified by the City, only 27 or 28 adult businesses could coexist. Although we reversed in part and remanded on another ground, we did not reject the district court's application of the separation requirement to determine how many sites were actually available to adult businesses considered collectively. In so doing, we followed the procedure we originally adopted in Walnut Properties of considering the number of sites available to all adult businesses simultaneously when the separation requirement is taken into account. See Walnut Properties, 861F.2dat 1108. Because the City of San Diego did not account for separation in offering its list of 110 sites, and the record does not show what the effect of the separation requirement would be on those sites, we cannot accept 110 as the number of available sites for the purposes of this summary judgment. The greatest number of available sites that the record supports is therefore 45-the approximate number of existing adult businesses in San Diego. (b) Sufficiency of available sites. [13][14][15] On this record, we cannot conclude that 45 sites suffices to establish "reasonable alternative avenues of communication" within the meaning of City ofRenton, 475 U.S. at 50, 106 S.Ct. 925. In the first place, the City here has offered no evidence of total demand, which we have held to be an important factor to be compared with supply in determining the adequacy of alternative avenues of expression. See Young v. City ofSimi Valley, 216 F.3d 807, 822 (9th Cir.2000). This is not to say that San Diego's ordinance will be automatically constitutional if demand does not exceed the supply of sites, because such a conclusion "is insufficient to account for the chilling effect that an adult use zoning ordinance may have on prospective business owners." Id. As Young explained: [S]upply and demand should be only one of several factors that a court considers.... A court should also look to a variety of other factors including, but not limited to, the percentage of available acreage theoretically available to adult businesses, the number of sites potentially available in relation to the population, "community needs, the incidence of [adult businesses] in other comparable communities, [and] the goals of the city plan." Id. (quoting International Food & Beverage Sys. v. City of Fort Lauderdale, 794 F.2d 1520, 1526(11th Cir. 1986)). In the present case, such a comprehensive and collective analysis is clearly called for. It has not been done. In its absence, we have no way of concluding that reasonable alternative avenues of communication exist in San Diego. As the record now stands, we can postulate a demand for at least 46 sites, arising from the operators of the 45 existing sites along with Isbell. If that number is used for demand and 45 sites is the supply, and at present we have no other numbers, then the number demanded *1115 exceeds the supply. If that is the situation, it is a factor favoring Isbell. Moreover, the 45 existing Page 7 businesses represent a decline from 90 such businesses in existence in 1984, when the challenged ordinance was adopted. Whether that decline was due to a chilling effect of the ordinances or some other cause is not clear from the record. Nor is there evidence of the number of adult businesses in comparable communities, or the other factors this court set forth in Young, 216 F.3d at 822. On the present record, then, the City has failed to establish that reasonable alternative avenues of communication exist in San Diego under the challenged ordinance. We therefore reverse the summary judgment in favor of the City on this First Amendment claim, and remand for further appropriate proceedings. II. First Amendment Challenge Regarding Existing Site. Isbell also argues that, regardless of whether the San Diego zoning regulations leave open "reasonable alternative avenues of communication," the rule requiring a 1000-foot separation between residential areas and adult businesses violates the First Amendment in his case. His contention is that, because a freeway runs between his property and the residential neighborhood 900 feet away, there is no reason to enforce the 1000-foot rule against his property. Because this freeway would dissipate the secondary effects of his business, Isbell argues, the 1000-foot rule serves no valid purpose in his case, and thus it violates the First Amendment. See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (time, place and manner restriction on speech must serve substantial government interest). [16][17] The appropriate question, however, is not whether the 1000-foot requirement is perfectly tailored to Isbell's case; it is whether the 1000- foot requirement generally serves a substantial government interest. That question was answered in City ofRenton, 475 U.S. at 50, 106 S.Ct. 925, which recognized a strong city interest in preserving the quality of urban life. "Cities may regulate adult theatres by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton." Id. at 52, 106 S.Ct. 925. [18] We cannot accept Isbell's invitation to explore whether the 1000-foot limit is appropriate to his particular site. Any application of a 1000-foot rule will have varying effects in each situation; if each must be examined and exceptions tailored, there will be nothing left of the 1000-foot rule approved by the Supreme Court in American Mini Theatres, 427 U.S. at 72, 96 S.Ct. 2440 (plurality opinion), 84 (concurring opinion). We conclude that, so long as the City provides reasonable alternative avenues of communication, it may require adult businesses without exception to be located more than 1000 feet from a residential area. The district court accordingly was correct in granting the City summary judgment on this claim, and we affirm that part of its judgment. III. Equal Protection Claim Isbell also contends that San Diego violated his right to equal protection of the laws by employing variance standards that are more stringent for adult entertainment businesses than for non-adult businesses. Isbell points to the fact that the City can take into account the mitigating effect that barriers, such as freeways, have on the secondary effects of a business when deciding whether to grant a variance to most businesses, but cannot do so when deciding whether to grant a variance to adult entertainment businesses. Had the City taken into account the mitigating effect of the *1116 freeway adjacent to Isbell's property when ruling on his request for a variance, Isbell argues, he would have been granted a variance. Isbell therefore argues that his right to equal protection was violated. [19] We reject this equal protection challenge, and affirm the district court's award of summary judgment on this count. The Supreme Court has made clear that ordinances such as San Diego's, directed at the secondary effects of adult businesses, are permissible time, place and manner regulations. City ofRenton, 475 U.S. at 51-52, 106 S.Ct. 925. So long as alternative avenues of expression are provided, a city may choose to treat adult businesses differently from other businesses, see id., and even may treat one category of adult businesses differently from other categories of adult businesses, see id. at 52-53, 106 S.Ct. 925. [20][21][22][23] Although City ofRenton dealt with a First Amendment challenge to a separation ordinance, its speech-neutral reason for permitting adult businesses to be treated differently from others also refiites an equal PageS protection challenge. A regulation of secondary effects of adult businesses is not a regulation of content; a classification of adult businesses therefore does not impinge on a fundamental right, nor does it involve a suspect classification. The ordinance may therefore survive an equal protection challenge if it has a rational basis. Under rational basis analysis, a "classification 'must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification." Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (citations omitted). Here, there is a reasonably conceivable basis for the City's differing variance standards: the secondary effects of adult businesses are arguably more extreme than those of other businesses. See Lim, 217 F.3d at 1056-57 (city's interest in curbing secondary effects of adult businesses justifies enforcing adult business ordinance while not enforcing other zoning ordinances). The district court accordingly did not err in awarding summary judgment to the City on this claim, and we affirm that ruling. CONCLUSION We affirm the judgment of the district court with regard to Isbell's First Amendment challenge to the application of the San Diego ordinance to his existing site, and with regard to his equal protection challenge. We reverse the judgment with regard to Isbell's First Amendment claim that San Diego fails to leave open to adult businesses reasonable alternative avenues of communication, and we remand for further proceedings on that claim. Isbell is entitled to his costs on this appeal. AFFIRMED IN PART; REVERSED IN PART, AND REMANDED. END OF DOCUMENT 31 Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 793 F.2d 1053 (Cite as: 793 F.2d 1053) United States Court of Appeals, Ninth Circuit. KEY, INC., Plaintiff-Appellant, v. KITSAP COUNTY and the Honorable Ray Aardal and John Horsley, County Commissioners of Kitsap, etc., et al., Defendants-Appellees. No. 84-4088. Argued and Submitted Aug. 8, 1985. Decided July 7, 1986. Operator of erotic dance facility challenged constitutionality of county ordinance regulating nonalcoholic topless dancing establishments. The United States District Court for the Western District of Washington, Barbara J. Rothstein, J., denied operator's motion for injunctive and declaratory relief, and operator appealed. The Court of Appeals, Pregerson, Circuit Judge, held that: (1) provisions of ordinance defining erotic dance and prohibiting dancers from fondling and caressing any patron were not unconstitutionally vague; (2) county could license operators and dancers; (3) five-day delay period between dancer's filing for application for license and grant of license unconstitutionally burdened the dancer's First Amendment rights; (4) requirements of ordinance that operators of erotic dance studios maintain business records and complete list of all dancers, for inspection by court, withstood constitutional challenge; and (5) regulation of manner in which dancing could be exhibited imposed reasonable time, place, and manner restrictions and did not violate First Amendment. Affirmed in part, reversed in part. West Headnotes [1] Federal Courts k!3 170Bkl3 Dissolution as corporation of operator of live entertainment facility due to its failure to comply with state corporate licensing regulations did not divest district court of jurisdiction on ground of mootness of operator's challenge to county's exotic dancing regulations, where operator was reinstated as corporation following cure of its problems with state authorities, and certificate of reinstatement provided for back date of reinstatement to date of dissolution. [2] Constitutional Law k258(2) 92k258(2) Fundamental requirement of due process is that statute clearly delineate conduct its proscribes. U.S.C.A. Const.Amend. 14. [3] Constitutional Law k258(2) 92k258(2) To avoid discriminatory or arbitrary enforcement, due process requires that law set forth reasonably precise standards for law enforcement officials and triers of fact to follow. U.S.C.A. Const.Amend. 14. [4] Constitutional Law k82(3) 92k82(3) Where First Amendment freedoms are at stake, greater degree of specificity and clarity of laws is required than would otherwise be needed. U.S.C.A. Const. Amends. 1, 14. [5] Obscenity k2.5 281k2.5 County regulation which defined erotic dance studio as fixed place of business which emphasized and sought, through one or more dancers, to arouse or excite patron's sexual desires, provided adequate standard for enforcement and gave fair warning to business it targeted, and therefore, was not void for vagueness; one who exhibits erotic dancing with intent to arouse sexual desires of his patrons would know that his business fell within purview of ordinance. U.S.C.A. Const.Amends. 1, 14. [6] Obscenity k2.5 281k2.5 Fact that under county's definition of erotic dance studio as place of business which emphasized and sought, through one or more dancers, to arouse or excite patron's sexual desires, prosecutor alleging violation of ordinance would be required to prove intent of operator of business, did not by itself render ordinance void for vagueness. U.S.C.A. Const.Amends. 1, 14. [7] Obscenity k2.5 281k2.5 Provision of county erotic dance regulations stating that no dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer was not void for vagueness; provision was easily understood to prohibit sexual conduct between dancers and patrons whom dancers intended to arouse sexually while dancers were acting in scope of their employment at erotic dance studio, and to find violation of prohibition against caressing and fondling, prosecutors would be required to prove dancer or patron engaged in specified act, fondling or caressing, with intent to sexually arouse or excite. U.S.C.A. Const. Amends. 1, 14. [8] Constitutional Law k90(l) 92k90(l) Degree of protection First Amendment affords speech does not vary with social value ascribed to that speech by courts. U.S.C.A. Const.Amend. 1. [9] Constitutional Law k90.4(3) 92k90.4(3) Topless dancing is protected expression under First Amendment. U.S.C.A. Const. Amend. 1. [10] Constitutional Law k90.4(3) 92k90.4(3) Although First Amendment coverage extends to topless dancing, it does not guarantee right to engage in protected expression at all times and places or in any manner that may be desired. U.S.C.A. Const. Amend. 1. [11] Constitutional Law k90(3) 92k90(3) Governmental entity, when acting to further legitimate ends of community, may impose incidental burdens on free speech. U.S.C.A. Const.Amend. 1. [12] Constitutional Law k90(3) 92k90(3) While regulations that restrain speech on basis of content presumptively violate First Amendment, content neutral time, place, and manner regulations are acceptable so long as they are designed to serve substantial governmental interest and do not unreasonably limit alternative avenues of communication. U.S.C.A. Const.Amend. 1. [13] Constitutional Law k90(l) 92k90(l) Regulation is content neutral for First Amendment purposes if it is justified without reference to content of regulated speech. U.S.C.A. Const.Amend. 1. [14] Constitutional Law k90.4(3) 92k90.4(3) County's erotic dance ordinance aimed at alleviating undesirable social problems that accompany erotic dance studios, including drug dealing and prostitution, was "content neutral" for First Amendment purposes. U.S.C.A. Const.Amend. 1. [15] Constitutional Law k90.1(4) 92k90.1(4) Licensing requirement raises First Amendment concerns when it inhibits ability or inclination to engage in protected expression. U.S.C.A. Const.Amend. 1. [16] Constitutional Law k90.1(4) 92k90.1(4) To avoid violating First Amendment protections, licensing requirement must provide narrow, objective, and definite standard to guide licensing authority. U.S.C.A. Const.Amend. 1. [17] Constitutional Law k90.4(3) 92k90.4(3) County could within ambits of First Amendment require operators of exotic dance studios and erotic dancers to obtain licenses. U.S.C.A. Const.Amend. 1. [18] Constitutional Law k90.4(3) 92k90.4(3) County erotic dance licensing regulation which required operators and dancers to supply county with various data, including name, address, phone number, and principal occupation, aliases, past and present, of dancers, and business name and address where dancer intended to dance, did not infringe upon any First Amendment rights; none of information required by county unreasonably diminished inclination to seek license, and county had no discretion in issuing licenses. U.S.C.A. Const. Amend. 1. [19] Constitutional Law k90.4(3) 92k90.4(3) Although county could require exotic dancers to be licensed, county could not impose five-day delay period between dancer's filing of application and county's granting of license; delay unreasonably prevented dancer from exercising First Amendment rights while application was pending. U.S.C.A. Const.Amend. 1. [20] Constitutional Law k90.4(3) 92k90.4(3) Five-day delay in granting license to operator of erotic dance studio did not burden operator's First Amendment rights; delay was justified on ground that topless dancing establishments were likely to require significant reallocation of law enforcement resources. U.S.C.A. Const. Amend. 1. [21] Counties k55 104k55 Under Washington law, lack of severability clause in erotic dance ordinance of county did not require that entire ordinance be declared unconstitutional by virtue of unconstitutional provision establishing five- day delay between erotic dancer's filing of application for license and county's granting of license, where effectiveness of ordinance did not depend on five-day delay period. [22] Constitutional Law k90.4(3) 92k90.4(3) County ordinance requiring operators of erotic dance studios to maintain business records and complete list of all dancers, for inspection by county, although imposing limited burden on operators of erotic dance studios, withstood constitutional challenge; burden on dance studios was significantly outweighed by advancement of county's interest in preventing infiltration of organized crime into studios. U.S.C.A. Const. Amend. 1. [23] Constitutional Law k90.4(3) 92k90.4(3) County erotic dance ordinance which prohibited dancers and patrons from fondling and caressing each other, required that all dancing take place at least ten feet from patrons and on stage raised at least two feet from floor, and prohibited patrons from tipping dancers did not significantly burden First Amendment rights, and did advance purpose of preventing patrons and dancers from negotiating for narcotics transfers or sexual favors on premises of erotic dance studios, and thus, ordinance was reasonable time, place, and manner restrictions allowable under First Amendment. U.S.C.A. Const.Amend. 1. *1055 Jack R. Burns, Burns & Meyer, Bellevue, Wash., for plaintiff- appellant. Ronald A. Franz, Deputy Pros. Arty., Port Orchard, Wash., for defendants- appellees. An Appeal From United States District Court For the Western District of Washington. Before PREGERSON and WIGGINS, Circuit Judges, and SCHNACKE, District Judge. [FN*] FN* The Honorable Robert H. Schnacke, United States District Judge, Northern District of California, sitting by designation. PREGERSON, Circuit Judge. Kev, Inc. challenges the constitutionality of a Kitsap County ordinance regulating non- alcoholic topless dancing establishments and appeals from the district court's order denying its motion for injunctive and declaratory relief. We affirm in part and reverse in part. BACKGROUND Appellant, Kev, Inc., ("Kev"), a Washington corporation, leased premises in Kitsap County ("the County") to operate a live entertainment facility called "Fantasies," which was to feature topless dancing and sell non-alcoholic beverages to adults for consumption on the premises. In early 1983, Kev secured the appropriate business licenses and began remodeling the premises to commence business operations. On January 24, 1983, the Kitsap County Board of Commissioners proposed Ordinance No. 92, entitled "An Ordinance Regarding Erotic Dance Studios," to regulate adult entertainment facilities. The stated purpose of the proposed ordinance was to regulate topless dancing to minimize perceived *1056 side effects, such as illegal drug dealing, fights, and prostitution, which would purportedly threaten the community's well-being. On February 7, 1983, the County held a public hearing on the proposed ordinance. Law enforcement officials from Kitsap and surrounding counties testified that "soft drink, topless dancing" establishments in adjacent counties were the sites of crime problems such as prostitution and drug dealing. The County Board of Commissioners passed the proposed ordinance that same day. On February 14, 1983, Kev filed suit, pursuant to 42 U.S.C. § 1983, in the United States District Court for the Western District of Washington, seeking a preliminary and permanent injunction and a declaratory judgment finding Ordinance No. 92 unconstitutional. Three weeks later, the County Board of Commissioners passed Ordinance No. 92-A as an amendment to Ordinance No. 92. Kev then filed an amended complaint challenging, on constitutional grounds, the provisions of Ordinance No. 92 as amended by Ordinance No. 92-A ("the ordinance"). Primarily, Kev alleges that topless dancing is entitled to first amendment protection and that the ordinance unduly restricts the exercise of that protected right. The ordinance defines an "erotic dance studio" as "a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patrons' sexual desires." Sections 2c and 3a. The ordinance regulates erotic dance studios in various ways. It requires licensing of erotic dance studios and their dancers. Sections 3-6. It also requires that dancers and patrons be at least eighteen years of age; that dancing occur on a raised platform at least ten feet from patrons; and that all books and records of erotic dance studios be open to official inspection. Sections 9d, e, i, j, and Section 10. The ordinance also proscribes the sale or possession of intoxicating liquor and controlled substances, Section 9g; fondling or caressing between dancers and patrons, Section 9k; and the payment or receipt of gratuities, Sections 91 and m. On June 9, 1983, Kev opened the business to the public. On January 14, 1984, Kev was administratively dissolved for failure to comply with state corporate licensing regulations. But, after curing the deficiencies, Kev was reinstated as a corporation on April 24, 1984. The certificate of reinstatement was back-dated to and took effect as of the January 14, 1984 dissolution date. After a hearing on Kev's motion for a preliminary injunction, the district court held the closing hour provision of the ordinance unconstitutional, but refused to enjoin enforcement of other provisions of the ordinance pending a hearing on the merits. On July 19, 1984, following a hearing on the merits, the district court found the ordinance constitutional in its entirety. [FN1] Kev timely appealed. FN1. On March 21, 1985, however, the district court ordered that its judgment be corrected to include its earlier holding that the closing hour provision of the ordinance, section 9f, was unconstitutional. The County does not challenge this holding on appeal. DISCUSSION I. Jurisdiction [I] The County contends that the district court did not have jurisdiction when it entered judgment on July 19, 1984. The County argues that because Kev was dissolved on January 14, 1984, there were no adverse parties and, therefore, no case or controversy when the district court entered judgment on July 19, 1984. For the same reasons, the County argues that this court does not have jurisdiction in the present appeal. We disagree. Although Kev was "administratively dissolved" on January 14, 1984 for failure to comply with state corporate licensing regulations, it was reinstated as a corporation on April 24, 1984 after curing its problems with the state authorities. The certificate of reinstatement provided that Kev's reinstatement dated back to and took effect as of the January 14, 1984 dissolution. For *1057 this reason, we find the County's motion to dismiss for mootness itself to be moot. We, therefore, have jurisdiction to hear the present appeal. II. Standard of Review This case presents questions of law, which we review de novo. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en bane), cert, denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). III. Merits A. Due Process Kev contends that ordinance section 2e (defining erotic dance studios) and section 9k (prohibiting dancers from "fondling" or "caressing" any patron) are unconstitutionally vague and thus violate due process requirements. We disagree. [2] [3] [4] A fundamental requirement of due process is that a statute must clearly delineate the conduct it proscribes. Groyned v. City ofRockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). Vague laws are offensive because they may entrap the innocent by not giving fair warning of what conduct is prohibited. Id.; Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Further, to avoid discriminatory or arbitrary enforcement, due process requires that laws set forth reasonably precise standards for law enforcement officials and triers of fact to follow. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974); Groyned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99. Moreover, where first amendment freedoms are at stake, an even greater degree of specificity and clarity of laws is required. Groyned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99; see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-218, 95 S.Ct. 2268, 2276-2277, 45 L.Ed.2d 125 (1975); Goguen, 415 U.S. at 573, 94 S.Ct. at 1247; Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 1410, 16L.Ed.2d469(1966). [5] [6] Section 2e defines an erotic dance studio as as "a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patron's sexual desires." The ordinance classifies erotic dance studios according to the manifest intent of the operator of the studio. Thus, one who exhibits erotic dancing with an intent to arouse the sexual desires of his patrons would know that his business falls within the purview of the ordinance. The fact that the prosecutor must prove the intent of the operator of the business does not by itself render the statute void for vagueness. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952) (statute requiring drivers transporting explosives to avoid crowded thoroughfares, "so far as practicable," not void for vagueness since statute requires a knowing violation); United States v. Doyle, 786 F.2d 1440, 1443 (9th Cir.1986) (presence of scienter requirement in statute prohibiting sale, transportation, or receiving of wildlife without a permit issued by the state enables law to withstand vagueness challenge). Thus, section 2e provides an adequate standard for enforcement and gives fair warning to the business it targets. [7] Section 9k provides that: "No dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer." "Caressing" and "fondling" are ordinary, commonly used terms. Both words describe forms of affectionate touching and are not limited in meaning to affectionate touching that is sexual. See Webster's Third New International Dictionary 339, 883 (1971). However, in the context of the other definitions provided in the ordinance, e.g., § 2c ("[d]ancer—a person who dances or otherwise performs for an erotic dance studio and who seeks to arouse or excite the patrons' sexual desires" (emphasis added)), section 9k is easily understood to prohibit sexual conduct between dancers and patrons whom the dancers intend to arouse sexually while the dancers are acting in the scope of their employment at the erotic dance studio. Further, to find a violation of the prohibition against "caressing" and "fondling," prosecutors must prove that a dancer or *1058 patron engaged in a specified act, i.e., fondling or caressing with the intention to sexually arouse or excite. Section 9k thus provides an adequate standard for law enforcement officers. Cf. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (ordinance requiring persons who loiter or wander the streets to provide "credible and reliable" identification and account for their presence held unconstitutional for failing to provide adequate law enforcement standards and to give fair warning of proscribed conduct). Since sections 2e and 9k provide adequate law enforcement standards and give fair warning of the proscribed conduct, the appellant's vagueness argument fails. B. First Amendment Violations Courts have considered topless dancing to be expression, subject to constitutional protection within the free speech and press guarantees of the first [FN2] and fourteenth amendments. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975); Chase v. Davelaar, 645 F.2d 735, 737 (9th Cir.1981). FN2. The first amendment to the United States Constitution provides in relevant part: "Congress shall make no law ... abridging the freedom of speech, or of the press...." This Amendment is made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963). [8] The County erroneously asserts that even if topless dancing were protected by the first amendment, it is not entitled to the same degree of protection afforded speech clearly at the core of first amendment values. In support of its assertion, the County relies on Justice Stevens's statement in the plurality opinion in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), that "society's interest in protecting [erotic expression] is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate...." 427 U.S. at 70, 96 S.Ct. at 2452. However, only three other justices (Chief Justice Burger, Justices White and Rehnquist) concurred in that statement. The County fails to recognize that five other justices in Young concluded that the degree of protection the first amendment affords speech does not vary with the social value ascribed to that speech by the courts. Id. at 73 n. 1 (Powell, J., concurring), 84-85, 96 S.Ct. at 2453 n. 1, 2459-2460 (Stewart, J., dissenting, joined by Brennan, J., Marshall, J., and Blackmun J.). This view continues to govern. Several circuits that have considered this question have adopted the position ascribed to the five justices in Young. See United States v. Guarino, 729 F.2d 864, 868 n. 6 (1st Cir.1984) (en bane); Avalon Cinema Corporation v. Thompson, 667 F.2d 659, 663 n. 10 (8th Cir.1981) (en bane); Hart Bookstores, Inc. v. Edmisten, 612 F.2d 821, 826-28 (4th Cir.1979), cert, denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980). [9][10][11][12][13] However, determining that topless dancing is protected expression does not end our inquiry. Although first amendment coverage extends to topless dancing, it "does not guarantee the right to [engage in the protected expression] at all times and places or in any manner that may be desired." See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). A governmental entity, when acting to further legitimate ends of the community, may impose incidental burdens on free speech. City of Renton v. Playtime Theatres, Inc., — U.S. —, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). While regulations that restrain speech on the basis of content presumptively violate the first amendment, " 'content-neutral' time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." Id. 106 S.Ct. at 928. A regulation is "content-neutral" if it is "justified without reference to the content of the regulated *1059 speech." Id. at 929 (emphasis in original) (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)). [FN3] FN3. See also United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968) (holding that a content neutral regulation that imposes an incidental burden on speech is sufficiently justified if: [1] it is within the constitutional power of the government; [2] it furthers an important or substantial governmental interest; [3] the governmental interest is unrelated to the suppression of free expression; and [4] the incidental restriction on first amendment freedoms is no greater than is essential to the furtherance of that interest). In United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 2907, 86 L.Ed.2d 536 (1985), the Supreme Court clarified the fourth O'Brien factor, noting that "an incidental burden on speech is no greater than is essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." [14] The stated purpose of the County's ordinance is to alleviate undesirable social problems that accompany erotic dance studios, not to curtail the protected expression—namely, the dancing. [FN4] At a hearing on the proposed ordinance, the County presented evidence that drug dealing, prostitution, and other social ills accompany topless dancing establishments. See California v. LaRue, 409 U.S. 109, 111, 93 S.Ct. 390, 393, 34 L.Ed.2d 342 (1972). Law enforcement officials from Kitsap and neighboring counties testified that these problems had been associated with erotic dance studios in other counties. The Supervisor of the Vice Control Department of Kings County testified that close contact between dancers and patrons facilitates prostitution. The County has a legitimate and substantial interest in preventing social problems that accompany erotic dance studios and threaten the well- being of the community. See Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1246 (9th Cir.1982) (upholding regulation requiring "open booths" in adult film arcades). Thus, we conclude that the ordinance is content-neutral because it is justified without "reference to the content of the regulated speech." See Renton, 106 S.Ct. at 929; Virginia Pharmacy, 425 U.S. at 771, 96 S.Ct. at 1830. FN4. Section 1 of the ordinance states: Purpose. The purpose of this ordinance is to regulate erotic dance studios to the end that the many types of criminal activities frequently engendered by such studios will be curtailed. However it is recognized that such regulation cannot de facto approach prohibition. Otherwise a protected form of expression would vanish. This ordinance represents a balancing of competing interests: reduced criminal activity through the regulation of erotic dance studios versus the protected rights of erotic dancers and their patrons. Kev contends that the ordinance violates the first amendment because: (a) it limits the location where dancers may perform; (b) it burdens a dancer's performance by requiring a license, prohibiting the acceptance of gratuities, restraining erotic dancers from exercising their first amendment rights until they are licensed, and prohibiting erotic dancers, in exercising their first amendment rights, from mingling with patrons; and (c) it places a reporting and inspection burden upon a business based solely on its first amendment activities. a. License Requirements The ordinance requires that all operators of erotic dance studios and all erotic dancers obtain licenses from the County. To obtain a license, a prospective operator must supply the County with various data including: his or her name, address, phone number, and principal occupation; similar information for all partners in the venture; and descriptions of the proposed establishment, the nature of the proposed business, and the magnitude thereof. A dancer applying for a license must provide the County: his or her name, address, phone number, birth date, "aliases (past and present)," and the business name and address where the dancer intends to dance. , [15][16] It is well established that the government may, under its police power, require licensing of various activities involving conduct protected by the first amendment. See, e.g., American Mini Theatres, 427 U.S. at 62, 96 S.Ct. at 2448; *1060 Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938- 39, 22 L.Ed.2d 162 (1969); Tyson & Brother—United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418, 430, 47 S.Ct. 426, 428, 71 L.Ed. 718 (1927) ("The authority to regulate the conduct of a business or to require a license, comes from a branch of the police power...."); see also Genusa v. City of Peoria, 619 F.2d 1203, 1212-13 (7th Cir.1980) (court relied on American Mini Theatres in upholding simple license requirement for operators of adult bookstores). A licensing requirement raises first amendment concerns when it inhibits the ability or the inclination to engage in the protected expression. See Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (requirement that union organizers register with state unconstitutionally inhibits free expression). Further, a licensing requirement must provide "narrow, objective, and definite standards to guide the licensing authority." Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. at 938-39. Here, there is no suggestion that the licenses required either to operate, or to perform in, a topless facility would be difficult to obtain or would for some other reason discourage either a prospective operator from exhibiting dancing, or a prospective dancer from performing. None of the information required by the County unreasonably diminishes the inclination to seek a license. [FN5] Moreover, the County has no discretion in issuing the licenses. Sections 4 and 7 provide that both licenses would be issued automatically by the County within five days. FN5. Kev argues that requiring the dancer to provide a list of "aliases (past and present)" unjustifiably invades the dancer's privacy. In Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.1980), the Seventh Circuit invalidated a similar requirement for operators of adult book stores, noting that the "alias disclosure requirement involves an invasion of privacy not justified by the zoning interest and is not otherwise justified." Id. at 1216. In the instant case, the alias disclosure requirement for dancers is justified by the County's substantial interest in preventing prostitution in erotic dance studios. The requirement will enable the County to monitor more effectively dance studios employing known prostitutes. [17][18] Further, both license requirements serve valid governmental purposes. By monitoring erotic dancers and erotic dance studios, the County can allocate law enforcement resources to ensure compliance with the ordinance. Thus, we conclude that the County may require operators of erotic dance studios and erotic dancers to obtain licenses. [19][20][21] However, although the County may require dancers to be licensed, the County has failed to demonstrate a need for section 7d's five-day delay period between the dancer's filing of an application and the County's granting of a license. The ordinance unreasonably prevents a dancer from exercising first amendment rights while an application is pending. Because the County has not justified the five-day delay permitted by the statute with respect to the dancer's license application, this provision is unconstitutional. [FN6] Thus, we hold section 7d of the ordinance unconstitutional. [FN7] FN6. Kev also asserts that the five- day delay in granting the license to operate an erotic dance studio burdens the operators first amendment rights. We conclude, however, that the County presented a sufficiently compelling justification for this delay. The County contends that topless dancing establishments are likely to require a significant reallocation of law enforcement resources. As the district court concluded, "[b]ecause such resources in Kitsap County are limited, five days to adjust is reasonable. There is no reason for a new studio operator not to apply for a license one week before he plans to open his facility." Thus, there seems to be an important justification for the five-day waiting period in licensing dance establishments. FN7. In striking down section 7d, we note that the Kitsap ordinance contains a severability clause. Under Washington law, a statute is not to be declared unconstitutional in its entirety unless the remainder of the act is incapable of achieving the legislative purposes. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 2803, 86 L.Ed.2d 394 (1985). Because the effectiveness of this ordinance does not depend on the five-day period between the filing of an application for a license and its mandatory granting by the County, we need not strike down the ordinance in its entirety. *1061 b. Business Records Requirement [22] Sections 9b and 9c of the ordinance require operators of erotic dance studios to maintain business records and complete lists of all dancers, for inspection by the County. [FN8] FN8. Section 9b requires that: No later than March 1 of each year an erotic dance studio licensee shall file a verified report with the Auditor showing the licensee's gross receipts and amounts paid to dancers for the preceding calendar year. Section 9c provides: An erotic dance studio licensee shall maintain and retain for a period of two (2) years the names, addresses, and ages of all persons employed as dancers by the licensee. Although the business records requirements may impose a limited burden on operators of erotic dance studios, the burden is significantly outweighed by the advancement of the County's interest in preventing the infiltration of organized crime into erotic dance studios. The business records requirements are no more burdensome than the requirements placed on a myriad of other businesses and substantially further the County's interest. Thus, these regulations do not violate the first amendment. c. Regulations Affecting Dancing [23] The ordinance also regulates the manner in which dancing may be exhibited. The ordinance: (1) prohibits dancers and patrons from fondling and caressing each other; (2) requires that all dancing take place at least ten feet from the patrons and on a stage raised at least two feet from the floor; and (3) prohibits patrons from tipping dancers. [FN9] FN9. Section 9i provides: All dancing shall occur on a platform intended for that purpose which is raised at least two feet (21) from the level of the floor. Section 9j provides: No dancing shall occur closer than ten feet (10') to any patron. Section 9k provides: No dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer. Sections 91 and 9m provide: No patron shall directly pay or give any gratuity to any dancer [and n]o dancer shall solicit any pay or gratuity from any patron." The alleged purpose of these requirements is to prevent patrons and dancers from negotiating for narcotics transfers and sexual favors on the premises of an erotic dance studio. Separating dancers from patrons would reduce the opportunity for prostitution and narcotics transactions. [FN10] Similarly, prohibiting dancers and patrons from engaging in sexual fondling and caressing in an erotic dance studio would probably deter prostitution. [FN11] Preventing the exchange of money between dancers and patrons would also appear to reduce the likelihood of drug and sex transactions occurring on regulated premises. FN10. The County presented testimony that close contact between dancers and patrons facilitated these transactions. FN11. As we construe section 9k to prohibit only sexual fondling and caressing occurring in an erotic dance studio, we reject Kev's argument that the ordinance is overbroad. Our holding today does not address the dancers' and the patrons' right of privacy to associate freely with each other under other circumstances. We hold simply that because of the County's legitimate and substantial interest in preventing the demonstrated likelihood of prostitution occurring in erotic dance studios, the County may prevent dancers and patrons from sexually touching each other while the dancers are acting in the scope of their employment. Further, these regulations do not significantly burden first amendment rights. While the dancer's erotic message may be slightly less effective from ten feet, the ability to engage in the protected expression is not significantly impaired. [FN12] Erotic dancers still have reasonable access to their market. See Ellwest Stereo Theatres, 681 F.2d at 1246 (open booths regulation *1062 did not affect access to adult films). Similarly, while the tipping prohibition may deny the patron one means of expressing pleasure with the dancer's performance, sufficient alternative methods of communication exist for the patron to convey the same message. Thus, the regulations are reasonable time, place, and manner restrictions that only slightly burden speech. FN12. In International Society for Krishna Consciousness, 452 U.S. at 650-51, 101 S.Ct. at 2565-66, the Supreme Court noted that "consideration of a forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved." Given the characteristics of erotic dance studios, the ordinance does not impair the dancer's ability to display her art. IV. Conclusion Except for the five-day delay between the dancer's filing of an application for a license and the mandatory granting of the license by the County, Kitsap County's regulations of erotic dance studios are reasonable time, place, and manner restrictions, justified without reference to the content of the protected expression. Thus, we REVERSE as to the provision permitting the five day delay in granting the dancer's license and AFFIRM the other provisions. Each side to bear its own costs. 793 F.2d 1053 END OF DOCUMENT 32 Page 1 Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 973 F.Supp. 1428 (Cite as: 973 F.Supp. 1428) LADY J. LINGERIE, INC., etc., et al., Plaintiffs, v. CITY OF JACKSONVILLE, etc., Defendant.(Two Cases). Milton R. HOWARD, et al., Plaintiffs, v. CITY OF JACKSONVILLE, etc., Defendant. Nos. 95-181-Civ-J-20A, 95-434-Civ-J-20A and 95-1005-Civ-J-20A. United States District Court, M.D. Florida, Jacksonville Division. Aug. 26,1997. Lingerie shops that contained nonobscene nude dancing and nude dancing lounge brought action challenging constitutionality of city zoning ordinances placing restrictions on adult entertainment establishments. On various motions, the District Court, Schlesinger, J., held that: (1) city complied with statutory notice and hearing requirements; (2) requirements as to minimum room size and hours of operation did not violate plaintiffs' free speech rights; and (3) ordinance exemption for city-owned or operated facilities violated equal protection clause. So ordered. [1] ZONING AND PLANNING k!34.1 414kl34.1 Under Florida law, strict compliance with statutory notice requirements is jurisdictional and mandatory prerequisite to valid enactment of zoning measure; ordinance which does not comply with notice requirements is void. West's F.S.A. § 166.041(3)(c)2. [2] ZONING AND PLANNING k!94.1 414kl94.1 Florida statute setting forth notice and hearing requirements for proposed ordinance that changes list of permitted, conditional, or prohibited uses within zoning category, or changes actual zoning map designation for parcel of land involving ten or more contiguous acres, applies only to ordinances which substantially affect use of land. West's F.S.A. § 166.041(3)(c)2. [3] MUNICIPAL CORPORATIONS k!21 268kl21 Under Florida law, any "affected" resident, citizen, or property owner, which would be anyone against whom ordinance is asserted, may challenge ordinance as void because it is not enacted in accordance with law. See publication Words and Phrases for other judicial constructions and definitions. [4] ZONING AND PLANNING k!35 414kl35 Advertising second public hearing 14 days in advance of hearing, rather than five days specified in statute setting forth notice and hearing requirements, did not render adult entertainment zoning ordinance void for failure to comply with statutory notice provisions; city complied with each minimum requirement of statute. West's F.S.A. § 166.041(3)(c)2, (8); Jacksonville, Fla., Ordinance 94-190-651. [5] ZONING AND PLANNING k212 414k212 City was not required to comply with statutory notice requirements with respect to zoning ordinance repealing an enjoined ordinance. West's F.S.A. § 166.041(3)(c)2. [6] ZONING AND PLANNING k!34.1 414kl34.1 Ordinance which guaranteed right to operate adult entertainment facility while awaiting decision on application for exception was not ordinance which substantially affected use of land, and thus city did not have to comply with statutory notice requirements.West's F.S.A. § 166.041(3)(c)2. [7] CONSTITUTIONAL LAW k251.5 92k251.5 Failure to follow state procedures is not in and of itself a violation of procedural due process. U.S.C.A. Const.Amend. 14. Page 2 [8] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Nude dancing by lingerie models was type of expressive conduct entitled to some degree of First Amendment protection. U.S.C.A. Const. Amend. 1. [9] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Total of 95 potentially available sites for plaintiffs' adult entertainment establishments allowed plaintiffs reasonable avenues of alternative communication, as required for adult entertainment zoning ordinances to pass First Amendment scrutiny. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinances 94-190-651, 95-307-109. [9] ZONING AND PLANNING k76 414k76 Total of 95 potentially available sites for plaintiffs' adult entertainment establishments allowed plaintiffs reasonable avenues of alternative communication, as required for adult entertainment zoning ordinances to pass First Amendment scrutiny. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinances 94-190-651, 95-307-109. [10] MUNICIPAL CORPORATIONS k589 268k589 Government may legitimately exercise its police powers to advance its aesthetic interests. [11] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) City's requirements that special use be compatible with existing contiguous uses or zoning and compatible with general character of area, considering population density, design scale, and orientation of structures to area, and that uses not have detrimental effect on vehicular or pedestrian traffic, were valid governmental interests and did not vest city with unbridled discretion, as claimed by adult entertainment businesses which challenged availability of alternative business sites in enumerated zone by special exception, in action seeking declaration that adult entertainment zoning ordinances violated First Amendment. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Code § (ii, iv). [11] ZONING AND PLANNING k76 414k76 City's requirements that special use be compatible with existing contiguous uses or zoning and compatible with general character of area, considering population density, design scale, and orientation of structures to area, and that uses not have detrimental effect on vehicular or pedestrian traffic, were valid governmental interests and did not vest city with unbridled discretion, as claimed by adult entertainment businesses which challenged availability of alternative business sites in enumerated zone by special exception, in action seeking declaration that adult entertainment zoning ordinances violated First Amendment. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Code § 656.131(c)(l)(ii, iv). [12] CONSTITUTIONAL LAW k90.1(l) 92k90.1(l) Ordinance allowing city to place more restrictive requirements and conditions on zoning exception applications than were provided in zoning code granted city unbridled discretion to make decisions on any basis, including impermissible basis such as content-based regulation of speech, and thus ordinance violated First Amendment. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Code § 656.131(c)(2). [12] ZONING AND PLANNING k87 414k87 Ordinance allowing city to place more restrictive requirements and conditions on zoning exception applications than were provided in zoning code granted city unbridled discretion to make decisions on any basis, including impermissible basis such as content-based regulation of speech, and thus ordinance violated First Amendment. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Code§656.131(c)(2). [13] STATUTES k64(l) 361k64(l) Unless it is evident that legislature would not have enacted those provisions which are within its power, independently of that which is not, invalid part may be dropped if what is left is fully operative as law. [14] MUNICIPAL CORPORATIONS k87 268k87 Unconstitutional ordinance provision allowing city to place more restrictive requirements and conditions on zoning exception applications than were provided in zoning code was severable from adult use ordinance, as adult use ordinance was fully operative without unconstitutional PageS provision. U.S.C.A. Const. Amend. 1; Jacksonville, Fla., Code § 656.131(c)(2). [15] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Adult entertainment zoning ordinances, which prohibited adult businesses from locating within 500 feet of residences, within 1,000 feet from schools, churches, and other adult uses, and within 500 feet from bars, were narrowly tailored to further city's interest in combating undesirable secondary effects of adult entertainment establishments, as required for ordinances to pass First Amendment scrutiny. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinances 94-190-651, 95-307-109. [15] ZONING AND PLANNING k76 414k76 Adult entertainment zoning ordinances, which prohibited adult businesses from locating within 500 feet of residences, within 1,000 feet from schools, churches, and other adult uses, and within 500 feet from bars, were narrowly tailored to further city's interest in combating undesirable secondary effects of adult entertainment establishments, as required for ordinances to pass First Amendment scrutiny. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinances 94-190-651, 95-307-109. [16] ZONING AND PLANNING k76 414k76 Revised adult entertainment ordinance provided reasonable amortization period before zoning requirements were to go into effect; shortest amortization period was approximately 19 months from enactment of first ordinance and approximately 15 months from enactment of revised ordinance. Jacksonville, Fla., Ordinances 94-190-651, 95-307-109. [17] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Adult entertainment zoning ordinance, which required minimum room size of 1000 feet, was narrowly tailored to further city's interest in combating secondary effects of nude dancing, as required for ordinance to pass First Amendment scrutiny; ordinance did not prevent plaintiff lingerie shops with nude dancers from expressing their erotic message in rooms smaller than 1000 square feet, as ordinance permitted room entered from outside to be of any size, and shops could move performances from back of buildings to front rooms. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinance 95-307-109, § 150.310(h). [17] ZONING AND PLANNING k76 414k76 Adult entertainment zoning ordinance, which required minimum room size of 1000 feet, was narrowly tailored to further city's interest in combating secondary effects of nude dancing, as required for ordinance to pass First Amendment scrutiny; ordinance did not prevent plaintiff lingerie shops with nude dancers from expressing their erotic message in rooms smaller than 1000 square feet, as ordinance permitted room entered from outside to be of any size, and shops could move performances from back of buildings to front rooms. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinance 95-307-109, § 150.310(h). [18] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Adult entertainment zoning ordinance, which required minimum room size of 1000 feet, was narrowly tailored to further city's interest in combating secondary effects of masturbation and prostitution, as required for ordinance to pass First Amendment scrutiny; ordinance allowed plaintiff lingerie shops the opportunity to express their erotic message of nude dancing to potentially larger audience without additional risk of promoting unwanted effects of public masturbation and prostitution that individual performances in private rooms encouraged. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinance 95-307- 109, § 150.310(h). [18] ZONING AND PLANNING k76 414k76 Adult entertainment zoning ordinance, which required minimum room size of 1000 feet, was narrowly tailored to further city's interest in combating secondary effects of masturbation and prostitution, as required for ordinance to pass First Amendment scrutiny; ordinance allowed plaintiff lingerie shops the opportunity to express their erotic message of nude dancing to potentially larger audience without additional risk of promoting unwanted effects of public masturbation and prostitution that individual performances in private rooms encouraged. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinance 95-307- 109, § 150.310(h). [19] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Page 4 Adult entertainment zoning ordinance, which required minimum room size of 1000 feet, left open reasonable alternative avenues of communication for plaintiff lingerie shops with nude dancers; shops' expert testified that nearly 40% of sites were available for shops to use for their businesses. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinance 95-307-109, § 150.310(h). [19] ZONING AND PLANNING k76 414k76 Adult entertainment zoning ordinance, which required minimum room size of 1000 feet, left open reasonable alternative avenues of communication for plaintiff lingerie shops with nude dancers; shops' expert testified that nearly 40% of sites were available for shops to use for their businesses. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinance 95-307-109, § 150.310(h). [20] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Adult entertainment zoning ordinance, which prohibited adult businesses from operating between hours of 2:00 a.m. and 12:00 p.m., was not unreasonable restriction on adult businesses' free speech rights; time limitation served legitimate interest of preventing crime and was narrowly tailored to achieve that interest. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinance 94-190-651, § 150.422. [20] ZONING AND PLANNING k76 414k76 Adult entertainment zoning ordinance, which prohibited adult businesses from operating between hours of 2:00 a.m. and 12:00 p.m., was not unreasonable restriction on adult businesses' free speech rights; time limitation served legitimate interest of preventing crime and was narrowly tailored to achieve that interest. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Ordinance 94- 190-651, § 150.422. [21] CONSTITUTIONAL LAW R251.4 92k251.4 Statute is facially vague in violation of due process only when law is impermissibly vague in all of its applications. U.S.C.A. Const.Amend. 14. [22] CONSTITUTIONAL LAW k240(4) 92k240(4) Exemption in adult entertainment ordinances, for city-owned or operated facilities, violated equal protection clause, even if city never sponsored or held event where prostitution occurred; there was possibility that nude entertainment, and secondary effects which followed, could occur on city- owned property. U.S.C.A. Const.Amend. 14; Jacksonville, Fla., Ordinances 94-190-651, 95-307-109, § 150.611. [22] ZONING AND PLANNING k76 414k76 Exemption in adult entertainment ordinances, for city-owned or operated facilities, violated equal protection clause, even if city never sponsored or held event where prostitution occurred; there was possibility that nude entertainment, and secondary effects which followed, could occur on city- owned property. U.S.C.A. Const.Amend. 14; Jacksonville, Fla., Ordinances 94-190-651, 95-307-109, § 150.611. *1431 Steven M. Youngelson, Law Office of Steven M. Youngelson, Altanta, GA, Gary S. Edinger, Law Office of Gary Edinger, Gainesville, FL, for plaintiffs. Michael D. Crowell, Jacksonville, FL, pro se. Tracey I. Arpen, Jr., Stephen Michael Durden, Bruce Dean Page, Sr., David K. Ray, Clay Meux, Steven E. Rohan, Sharon R. Parks, General Counsel's Office, Jacksonville, FL, for defendant. MEMORANDUM OPINION SCHLESINGER, District Judge. This is an action for declaratory and injunctive relief and damages challenging the constitutionality of city zoning ordinances placing certain restrictions on adult entertainment establishments. The stated purpose of the ordinances is to combat the undesirable secondary effects of nude dancing: prostitution, public masturbation, lewd and lascivious conduct, and sexual harassment. Most of the issues in this case can be resolved by the various motions for summary judgment/dismissal that have been filed in this case. The remaining factual issues were heard in a one-day trial in this cause held before the undersigned on July 31, 1997. For purposes of trial, the Court consolidated Case No. 95-1005-Civ-J-20A with the already consolidated case of 95-181-Civ-J-20A/25-434-Civ-J-20A. The Court first will resolve the issues submitted in the PageS parties' dispositive motions. Then, based on the testimony and evidence received during trial, and the applicable legal standards, the Court will make findings of fact and conclusions of law on the remaining issues, as required by Rule 52(a) of the Federal Rules of Civil Procedure. The motions presently before the Court are: Case No. 95-18l-Civ-J-20A/95-434-Civ-J-20A: (1) Defendant's Motion for Judgment of Dismissal with Prejudice as to Plaintiffs Amy Watson and Michael Crowell (Doc. No. 56); (2) Defendant's Motion for Partial Summary Judgment as to Enactment Procedures for Challenged City Ordinances (Doc. No. 57) and Plaintiffs' Response thereto (Doc. No. 59); (3) Plaintiffs' Motion for Partial Summary Judgment as to the Issue of Availability of Alternate Sites, Amortization, License Disclosures and Disparate Sentencing (Doc. No. 78) and Defendant's response thereto (Doc. No. 93); (4) Defendant's Motion for Summary Judgment of Dismissal for Lack of Standing (Doc. No. 82) and Plaintiffs' response (Doc. No. 92); (5) Defendant's Motion to Dismiss Plaintiff Gregory A. King for Lack of Standing (Doc. No. 84) and Plaintiffs' response (Doc. No. 91); (6) Defendant's Motion for Summary Judgment (Doc. No. 85) and Plaintiffs' response (Doc. No 90); Case No. 95-1005-Civ-J-20A: (7) Plaintiffs' Motion for Partial Summary Judgment as to the Issues of Procedural Safeguards for Zoning Exceptions, the Availability of Alternate Sites and Amortization (Doc. No. 20) and Defendants' response (Doc. No. 25); and (8) Defendant's Motion for Summary Judgment (Doc. No. 26) and Plaintiffs' Response (Doc. No. 32). I. BACKGROUND On November 16, 1994, the City of Jacksonville enacted Ordinance 94-190-651 (Ordinance I). This Ordinance attempted to regulate adult bookstores, [FN1] adult entertainment establishments, [FN2] and adult motion picture theaters [FN3] within Jacksonville by requiring *1432 operators of such facilities to obtain a license from the Sheriff and to provide certain zoning, health, safety, and fire protection standards. Plaintiffs in this action are lingerie shops that contain non-obscene nude dancing (Plaintiffs also are referred to as "Lingerie Shops" or "Lingerie Shop" Plaintiffs). The Lingerie Shops are classified as adult entertainment establishments under the Ordinance. Following passage of the Ordinance, the Lingerie Shops closed their businesses. The Lingerie Shop Plaintiffs filed their Verified Petition (complaint) on February 28, 1995, seeking temporary and permanent injunctive relief, damages for violation of their civil rights, and a declaratory judgment declaring the Ordinance is void, invalid, and unconstitutional on several grounds. On March 10, 1995, this Court granted in part Plaintiffs' motion for preliminary injunction, enjoining Defendant and its agents, officers, employees, and persons acting under its direction and control from enforcing the licensing, suspension, and revocation provisions and zoning requirements found in Ordinance 94-190-651, since the Court found Sections 150.107, 150.207, 150.212, and 656.725 to be defective. See Preliminary Injunction Order (Doc. No. 18 in Case No. 95-181-Civ-J-20). This injunction did not affect any other Ordinance or other portions of Ordinance 94-190-651 except for those sections expressly enjoined. On March 28, 1995, the City of Jacksonville adopted a subsequent ordinance, Ordinance 95-307-109 (Ordinance II), which partially amended Ordinance I and adopted new and modified provisions. The Lingerie Shop Plaintiffs filed a second complaint and sought to preliminarily enjoin Ordinance II (Doc. No. 3 in Case No. 95-434-Civ-J-20) as well as Ordinance I. After reviewing the new Ordinance, this Court denied the Lingerie Shops' motion for preliminary injunction of Ordinance II and dissolved the preliminary injunction of Ordinance I. The Court also consolidated the two cases. Doc. No. 32 in Case No. 95-181-Civ-J-20; Doc. No. 23 in Case No. 95-434-Civ-J-20. On June 19, 1996, this Court granted in part Defendant's motion for partial summary judgment and dismissed certain of the Lingerie Shop Plaintiffs' claims. [FN4] FN1. Defined in Section 150.103(a). Page 6 FN2. Defined in Section 150.103(c). FN3. Defined in Section 150.103(f). FN4. The Court dismissed Plaintiffs' claims regarding the following provisions of Ordinance 94-190-651: Sections 50.107, 150.222, 150.303, 150.304(d), 150.403, 150.407, and 150.501(a)(3); Plaintiffs' challenge under the Florida Constitution to privacy rights of patrons and performers/models in Sections 150.222, 150.301(o), 150.301(p), 150.303(3), and 150.303; and Plaintiffs' claims under Fla. Stat. § 383.015 and Chapter 800. See Doc. No. 60. Plaintiff Milton R. Howard and Emro Corporation, d/b/a J.R.'s Lounge (J.R.'s), filed its Petition for Injunctive Relief, Declaratory Judgment and Damages on October 11, 1996, challenging the constitutionality of the Ordinances. Plaintiff's business, J.R.'s Lounge provides nude entertainment by live dancers, and also is classified as an adult business according to the Ordinances. J.R.'s is located in a CCG-2 zone, an area of the City that requires a special zoning exception in order to allow nude dancing on the premises. According to the complaint, J.R.'s applied for the zoning exception in December 1, 1994, which was initially granted by the Jacksonville Planning Commission on March 2, 1995. However, on May 23, 1995, the zoning exception was revoked by the City Council, and this lawsuit ensued. II. DISPOSITIVE MOTIONS Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing the Court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604 (llth Cir. 1991). A moving party discharges its burden on a motion for summary judgment by "showing" or "pointing out" to the Court there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54. Rule 56 permits the moving party to discharge its burden with or without supporting affidavits and to move for summary judgment on the case as a whole or on any claim. Id. When a moving party has discharged its burden, the *1433 nonmoving party must then "go beyond the pleadings," and by its own affidavits, or by "depositions, answers to interrogatories, and admissions on file," designate specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. In determining whether the moving party has met its burden of establishing there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law, the Court must draw inferences from the evidence in the light most favorable to the nonmovant, Key West Harbour Development Corp. v. City of Key West, 987 F.2d 723, 726 (llth Cir. 1993), and resolve all reasonable doubts in that party's favor. Spence v. Zimmerman, 873 F.2d 256, 257 (11th Cir. 1989). The nonmovant need not be given the benefit of every inference, but only of every "reasonable" inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (llth Cir. 1988). The Eleventh Circuit has explained the reasonableness standard: In deciding whether an inference is reasonable, the Court must "cull the universe of possible inferences from the facts established by weighing each against the abstract standard of reasonableness." [citation omitted]. The opposing party's inferences need not be more probable than those inferences in favor of the movant to create a factual dispute, so long as they reasonably may be drawn from the facts. When more than one inference reasonably can be drawn, it is for the trier of fact to determine the proper one. WSB-TV v. Lee, 842 F.2d 1266, 1270 (llth Cir. 1988). Thus, if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant the summary judgment motion. Augusta Iron and Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (llth Cir. 1988). It must be emphasized that the mere existence of some alleged factual dispute will not defeat an otherwise properly supported summary judgement motion. Rather, "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, Page? 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2511-12. A. Lady Lingerie Plaintiffs (1) Dismissal of Plaintiffs Amy Watson and Michael Crowell Defendant filed two separate motions for Judgment of Dismissal with Prejudice as to Plaintiffs Amy Watson and Michael Crowell (Doc. Nos. 47 & 56), to which the Court ordered consolidated and directed Plaintiffs, who are appearing pro se, to file responses (Doc. No. 60). The Court informed Plaintiffs: the disposition of the consolidated motion for judgment of dismissal (Doc. Nos. 47 and 56) may result in the dismissal of their case with prejudice without any further proceedings. It would be in the best interest of Plaintiffs to respond to the consolidated motion within ten (10) days of the date of this Order. No response was filed by either Plaintiff. Accordingly, Defendant's Motion for Judgment of Dismissal with Prejudice as to Plaintiffs Amy Watson and Michael Crowell (Doc. No. 56) is GRANTED. This action as to Plaintiffs Amy Watson and Michael Crowell is hereby DISMISSED WITH PREJUDICE. See Local Rule 3.10. (2) Enactment Procedures/Due Process Claim Defendant moves for partial summary judgment on Plaintiffs' complaint with respect to Plaintiff's allegation that the City did not follow the procedural requirements set forth in Florida Statutes, § 166.041(3)(c), in the enactment of the two Ordinances. It is undisputed that the two Ordinances, 94-190-651 and 95-307-109, were not enacted in strict accordance with the procedures set forth in Fla. Stat. § 166.041(3)(c)2. Ordinance 94-190-651 was advertised 14 days in advance of the public hearing, rather than *1434 the 5 days specified by section 166.041(3)(c)(2). Ordinance 95-307-109 was enacted as an emergency ordinance and did not comply with any of the requirements of § 166.041(3)(c)(2). [1][2] Under Florida law, strict compliance with the notice requirements of the state statute is a jurisdictional and mandatory prerequisite to the valid enactment of a zoning measure. Ellison v. City of Fort Lauderdale, 183 So.2d 193 (Fla. 1966). Ordinances which do not comply with the notice requirements are void. Daytona Leisure Corp. v. Daytona Beach, 539 So.2d 597, 599 (Fla.App. 1989). However, § 166.041(3)(c)(2) applies only to ordinances which substantially affect the use of land. T.J.R. Holding Co. v. Alachua County, 617 So.2d 798 (Fla.App. 1993). In T.J.R., the ordinance regulated only conduct, prohibiting nudity and sexual conduct in establishments that served alcohol. The Florida court concluded that the ordinance did not affect the owner's use of the land and so it did not have to comply with the formalities required for a land-use ordinance. On the other hand, Daytona Leisure involved a "classic zoning ordinance," which prohibited the sale of alcohol in designated areas. Id., cited in 3299 N. Federal Highway, Inc. v. Board of County Commissioners of Broward County, 646 So.2d 215, 222 (Fla.App.1994). The court concluded that the failure to properly notice the ordinance prior to adoption rendered it unenforceable. Somewhere "in the middle" of the above cases is the ordinance in 3299 N. Federal Highway, which regulates both conduct and the use of land. In that case, two adult night clubs which featured nude dancing and three dancers from one of the clubs filed an action against Broward County to enjoin it from enforcing its newly adopted "Broward Adult Entertainment Code." One of the issues was whether the county was required to comply with the notice and public hearing requirements under Florida law. The trial court held that because the law was not a zoning or land-use ordinance, it was not subject to those requirements. The Florida district court noted that the ordinance regulated activities that "are quite clearly 'conduct'-touching, lap dancing, distances between performers and patrons~[but that] it also requires that affected businesses meet structural requirements-partitions, width of doorways, distance between seats and stage, etc." Id. The court analyzed the legislative history of the notice/hearing statute, which is found "merely persuasive rather than controlling," and concluded that the structural requirements of the ordinance do not substantially affect use of the PageS land, and therefore would not be subject to strict enactment requirements. Id. at 223. Ordinances that set minimum distance requirements or change setback and height restrictions have been found to "substantially affect land use." Daytona Beach, 539 So.2d at 597 (minimum distance between business selling alcohol and residential area); City of Miami Beach v. State, 108 So.2d 614 (Fla. 3d DCA 1959) (changing setback and height restrictions on new buildings). The City does not contest that certain portions of the Ordinances in this case substantially affect the use of land, such as the setback requirements and minimum distance requirements between adult entertainment businesses and churches, schools, and other adult businesses. See e.g., Ordinance 94-190-651, § 656.1103(a)(l)-(4). However, the City argues that the provisions of the Ordinances that clearly affect conduct and interior structural requirements do not have to be in compliance with the notice and hearing requirements of section 166.041(3)(c)(2). [3] As an initial matter, the Court rejects Defendant's argument that Plaintiffs do not have standing to challenge the enactment procedures. Any "affected resident, citizen or property owner" may challenge an ordinance as void because it is not enacted in accordance with law. Renard v. Dade County, 261 So.2d 832, 838 (Fla. 1972). "Anyone against whom the void ordinance is asserted is affected." Bhoola v. City of St. Augustine Beach, 588 So.2d 666, 667 (Fla. App. 1991). [4] Nonetheless, the Court finds that the enactment procedures as to Ordinance 94-190-651 were complied with. The only potential defect Plaintiffs point to-advertising the second public hearing 14 days in advance of the hearing, rather than the 5 days specified in section 166.041(3)(c)(2)—does not render the Ordinance void for failure to comply *1435 with the notice provisions of the statute. The undisputed evidence demonstrates that the City complied with each of the minimum requirements of section 166.041(3)(c)(2). See Exhibit A to the City's Memorandum in Support of its Motion for Partial Summary Judgment as to Enactment Procedures (Doc. No. 58). Section 166.041(8) provides that "[t]he notice procedures required by this section are established as minimum notice procedures." Id. (emphasis added). The statute does not require exactness as to the number of days. The five day requirement is a minimum requirement. Plaintiffs have cited to and the Court has found no cases which indicate that extra notice violates the statute. Therefore, the Court finds that the fourteen days notice complies with the requirements of § 166.04l(3)(c)(2), and Defendant's Motion for Partial Summary Judgment as to Enactment Procedures of Ordinance 94-190-651 is GRANTED. [5] [6] The Court also agrees that only the portions of Ordinance 95- 307-109 that "substantially affects the use of the land" have to comply with the § 166.041(3)(c)(2) notice and hearing requirements. Ordinance 95-307- 109 repealed section 656.725, regarding amortization of adult entertainment facilities, and created section 656.1109, which allows conditional commencement of a facility prior to obtaining an exception. Section 656.725 previously was enjoined by this Court. See Order Granting Preliminary Injunction, Doc. No. 18 in Case No. 95-181-Civ-J-20. Therefore, the Court agrees with Defendant that the City was not required to comply with the notice requirements for an enjoined ordinance. In addition, Plaintiffs have not demonstrated that they were injured by the repeal of an ordinance which they claimed in another lawsuit violates their constitutional rights. Consequently, they do not have standing to challenge the enactment of section 656.725. Moreover, section 656.1109, which guarantees the right to operate a facility while awaiting a decision on an application for an exception, is not an ordinance which substantially affects the use of land. Thus, the City did not have to comply with the notice requirements of § 166.041(3)(c)(2). [7] Finally, the Court rejects Plaintiffs' contention that Defendant's failure to follow enactment procedures, if any, is a violation of procedural due process. Failure to follow state procedures is not in and of itself a violation of the federal Constitution. Harris v. Birmingham Board of Education, 817 F.2d 1525, 1527 (llth Cir.1987). In Harris, the Eleventh Circuit rejected Harris' claim that his procedural due process rights were violated when the Board of Education failed to follow state procedures regarding notice. The court stated: Even if the notice in this case is insufficient to satisfy the state statute, the state statute does not define the process under the federal Constitution. Therefore, even if the state statute has been violated, that does not prove a Page 9 violation of a federal constitutional rights.... Although the state statutory notice requirement is stated in mandatory language, it is a purely procedural requirement and not a substantive predicate to termination which gives Harris a protected liberty or property interest in receiving notice.... Id. (emphasis supplied). In this case, for the reasons discussed herein, the City did not violate federal due process in its enactment of either ordinance. Accordingly, Plaintiffs' request for declaratory and injunctive relief on its due process claim is DENIED; and Defendant's Motion for Partial Summary Judgment as to Enactment Procedures of Ordinances 94-190-651 and 95- 307-109 is GRANTED. (3) Lack of Standing Most of the arguments raised in Defendant's Motion for Summary Judgment of Dismissal for Lack of Standing (Doc. No. 82) previously have been considered and rejected by this Court. See Order of July 13, 1995 in Case No. 96-434- Civ-J-20 (denying Defendant's Motion to Dismiss for Lack of Standing) and Doc. No. 5 in same case (Defendant's Motion); Order of June 19, 1996 in consolidated case (denying Defendant's Defendant's Motion for Summary Judgment as to Constitutionality of Cumulative Effect of Challenged Ordinance (Doc. No. 48)). The remaining arguments propounded by Defendant are without merit. Accordingly, Defendant's Motion for Summary Judgment of Dismissal for Lack of Standing (Doc. No. 82) is DENIED. *1436 (4) Dismissal of Plaintiff Gregory A. King for Lack of Standing In light of Plaintiffs' filing its First Amended Complaint on April 14, 1997 (Doc. No. 102) adding as Plaintiffs the two corporations which actually own the lingerie businesses in question and in which Plaintiff Gregory King holds stock, and further defining King's interest in the businesses, which was consented to by Defendant, Defendant's Motion to Dismiss Plaintiff Gregory A. King for Lack of Standing (Doc. No. 84) is MOOT. (5) Nudity as a Sales Promotion The City moves for summary judgment contending that nudity, used as a sales promotion, is commercial speech and therefore is not protected by the First Amendment, citing Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995). That case involved lawyer advertising, which is considered "purecommercial advertising." Id. at 634-35, 115 S.Ct. at 2381. The Court noted that commercial speech enjoys a limited measure of protection under the First Amendment, and analyzed the case under the "intermediate scrutiny" standard. Id. Defendant argues that the nude dancing at Plaintiffs' facilities was being used to market Plaintiffs' lingerie. Therefore, the argument goes, it was outside the protection of the First Amendment. Plaintiffs respond that Defendant has misstated the facts "in an attempt to downplay the First Amendment expressive nature of the entertainment provided." Response at 2 (Doc. No. 90). [8] The evidence supports Plaintiffs' contention. Although Plaintiffs testified that the performers did not engage in a typical cabaret performance, i.e., "nude dancing in what the industry considers nude dancing, which is stages, flashing lights, and very loud music and the absence of lingerie [where the performers] stand ... on the stage nude," the testimony was that models were engaged in a type of expressive performance akin to a more traditional striptease. Deposition of Gregory King at 77-78. This Court previously has noted that "nude dancing is expressive conduct entitled to some degree of First Amendment protection .... [if only] 'within the outer perimeter of the First Amendment.' " Order of June 19, 1996, granting in part and denying in part motions for summary judgment (Doc. No. 48 at 9) (1996 Summary Judgment Order) (citing Redner v. Dean, 29 F.3d 1495, 1499 (llth Cir.1994), cert, denied, 514 U.S. 1066, 115 S.Ct. 1697, 131 L.Ed.2d 560 (1995); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991)). Therefore, the City's Motion for Summary Judgment (Doc. No. 85) is DENIED. (6) Remaining Renton Factors In the its 1996 Summary Judgment Order, the Court found that the Ordinances in question satisfied the first two prongs of the test established in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), in that the Ordinances were (1) "content-neutral" time, place and manner regulations, which (2) serve the substantial governmental interest of combating the undesirable secondary effects of nude dancing: Page 10 in this case, restricting or regulating prostitution, public masturbation, sexual harassment or discrimination. See 1996 Summary Judgment Order at 10-11; Renton, 475 U.S. at 48, 106 S.Ct. at 929; FW/PBS v. City of Dallas, 493 U.S. 215, 222, 236, 110 S.Ct. 596, 602-03, 610, 107 L.Ed.2d 603 (1990); TK's Video, Inc. v. Denton County, Texas, 24 F.3d 705, 707 (5th Cir.1994). In addition to serving a substantial government interest, the regulation in question must allow for reasonable alternative avenues of communication and must be narrowly tailored to serve the government interest at issue. Renton, 475 U.S. at 50, 106 S.Ct. at 930; International Eateries of America, Inc. v. Broward County, 941 F.2d 1157, 1162 (llth Cir.1991), cert. denied, 503 U.S. 920, 112 S.Ct. 1294, 117 L.Ed.2d517(1992). a. Reasonable Alternative Avenues of Communication In its previous Summary Judgment Order (Doc. No. 48), the Court denied summary judgment because there was a factual issue remaining whether the Ordinance will allow reasonable alternative avenues of communication as Plaintiffs' expert had not completed his study of available sites in the City. Order at 15. The Court is required to make findings *1437 of fact with respect to the actual number of potential sites available for adult businesses, and whether that number will allow reasonable alternative avenues of communication to withstand constitutional scrutiny. See Renton, supra; International Eateries, 941 F.2d at 1165, citing Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1108-09 (9th Cir. 1988), cert, denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 L.Ed.2d 157 (1989). Since that time, both Plaintiffs and Defendant have presented expert testimony in the form of affidavits concerning studies of available sites. [FN5] The City of Jacksonville permits adult uses as a matter of right in the CCBD (Commercial, Central Business District) zone and as a special exception in the CCG-2 (Commercial, Community/General, 2) zoning district. City of Jacksonville Zoning Code, § 656.1102. In addition, in either zone, adult businesses must meet the set-back requirements of section 656.1103, which precludes the location of an adult business: FN5. Additional evidence on the issue also was presented at the July 31, 1997, bench trial, specifically as the issue related to the 1000 square feet room requirement of the Ordinance. The Court will discuss that evidence later in this Opinion. (1) within 500 feet from residences; (2) within 1,000 feet from schools, churches and other adult uses; and (3) within 500 feet from bars. Section 656.1103(a)(l)-(4) (distance requirements). The parties agree that there are two (2) potential sites available in the CCBD zone that would accommodate Plaintiffs' businesses and comply with the distance requirements of the zoning Ordinances. See Affidavit of Thad Crowe (Crowe Affidavit), Doc. No. 94 at 5 (finding that there are two parcels of 140 in the district where adult uses would allowed "by right"—i.e., where the distance requirements do not affect the parcels, which is 1.4% of all CCBD parcels); Affidavit of Robert Bruce McLaughlin (McLaughlin Affidavit), Doc. No. 80 at 13. However, the parties disagree on the number of potential sites available in the CCG-2 zone, which requires adult entertainment establishments to obtain a special use permit. Defendant's expert averred that within the City of Jacksonville [FN6] "a survey of 734 CCG-2 zoned parcels outside of the CCBD area revealed that 93 were not affected by the adult use distance requirements. This represents 12.7% of all CCG-2 zoned parcels." Crowe Affidavit at 6. Plaintiffs' expert, however, did not undertake the "detailed research" in the CCG-2 zone as he did in the CCBD zone, which he only "spot checked." McLaughlin Affidavit at 8. The reason McLaughlin gave for performing only a spot-check in the CCG-2 zone is that he was of the opinion that the special use permit in the CCG-2 zones had the "demonstrable effect" of precluding adult uses in those zones. Id. at 7. McLaughlin arrived at this conclusion for the following reasons: (1) all except one of the adult entertainment establishments that previously operated in the CCG-2 zones were forced to close as a result of the Ordinances; (2) one ongoing adult business located in the CCG-2 zone, J.R.'s, applied for and was denied a special exception; (3) given that the initial approval of the special exception for J.R.'s by the governmental agency, the Jacksonville Planning Commission, and the subsequent denial of the Page 11 permit by the "political body," the Jacksonville City Commission, "it is reasonable to conclude that special exceptions for adult businesses are disfavored by the City Commission and will not be granted as a matter of course;" (4) adult businesses will avoid locating in zones which require special exception approval by a government body; and (5) as a practical matter, the application of the Ordinances have precluded the opening of other adult businesses in the CCG-2 zone. Id. at 7-8. FN6. The Court rejects Defendant's argument that the Court can consider municipalities outside the Jacksonville/Duval County area. See Centerfold Club, Inc. v. City of St. Petersburg, 969F.Supp. 1288, 1306-07 (M.D.Fla.1997). [9] Plaintiffs do not appear to contend that a total of 95 potentially available sites (2 in the CCBD area plus 93 in the CCG-2 zone) would not pass constitutional muster under Renton and International Eateries. After reviewing the relevant case law, the Court finds as a matter of law that 95 sites allow Plaintiffs "reasonable avenues of alternative communication" under Renton. The Court makes no determination of what the *1438 "minimum" number of sites would be in order to pass constitutional scrutiny, because the Court need not reach that issue today. In the case at hand, 95 sites is more than adequate to pass constitutional muster. See International Eateries, 941 F.2d at 1165 (twenty-six sites allowed for reasonable alternative avenues of communication); International Food & Beverage Systems v. City of Fort Lauderdale, 794 F.2d 1520, 1526 (llth Cir. 1986) (twenty-two sites adequate), aff d, 838 F.2d 1220 (llth Cir. 1988); T-Marc, Inc. v. Pinellas County, 804 F.Supp. 1500, 1504 (M.D.Fla.1992) (noting that 123 available sites were far more than the number that several courts have held are adequate); Southern Entertainment Co. of Fla., Inc. v. City of Boynton Beach, 736 F.Supp. 1094, 1101 (S.D.Fla. 1990) (eleven locations sufficient); Function Junction, Inc. v. City of Daytona Beach, 705 F.Supp. 544, 552 (M.D.Fla. 1988) (twelve sites adequate). Cf. Centerfold Club, Inc. v. City of St. Petersburg, 969 F.Supp. 1288, 1304-05 (M.D.Fla.1997) (finding nineteen sites inadequate, which is a ratio of one site per 12,565 persons). [FN7] FN7. The Court disagrees with the methodology advanced by Plaintiffs expert, which the Court notes is the same expert in this case, and accepted by the court in Centerfold Club, equating the number of sites to the population. In the cases cited therein, those courts did not consider the ratio of population to number of potential sites when the issues were decided, therefore, no "minimum" ratio was decided by those courts that would pass constitutional muster. Also, in Centerfold Club, the ratio in that case appeared to be considerably lower than in the other cases. In this case, the number of sites is considerably higher than those approved by other courts. Therefore, that case is distinguishable from the instant case, and the Court does not find its authority to be persuasive. Plaintiffs argue, however, that the availability of sites in the CCG-2 zone by special exception is illusory, because of the unbridled authority granted the decision maker. Therefore, Plaintiffs contend that there are only two sites in the entire City of Jacksonville on which they can locate the fifteen businesses that previously operated prior to enactment of the Ordinances, and any future such businesses. There is no question that if only two sites were available for adult use in a city the size of Jacksonville, it would be insufficient to meet the requirements of Renton. Defendants do not dispute that contention, but argue that an additional 93 sites are available in the CCG-2 zone. It is also axiomatic that if a conditional use ordinance grants the governmental body unbridled discretion, it will be held unconstitutional. Shuttlesworth v. Birmingham, 394 U.S. 147, 150, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969) (noting that "many decisions of this Court over the last 30 years [have held that] a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional"). Therefore, the Court must examine the special use exception in this case and determine whether it grants the City "unbridled and absolute power," as the Shuttlesworth Court found in the ordinance in question. Id. Section 656.131(c), Jacksonville Code, provides: Page 12 (1) The Commission shall issue an order to grant the exception only if it finds from a preponderance of the evidence of record presented that the proposed use meets, to the extent applicable, the following standards and criteria: (1) Will be consistent with the Comprehensive Plan, including any subsequent plan adopted by the Council pursuant thereto; (ii) Will be compatible with the existing contiguous uses or zoning and compatible with the general character of the area, considering population density, design, scale and orientation of structures to the area, property values, and existing similar uses or zoning; (iii) Will not have an environmental impact inconsistent with the health safety and welfare of the community; (iv) Will not have a detrimental effect on vehicular or pedestrian traffic, or parking conditions, and will not result in the generation or creation of traffic inconsistent with the health, safety and welfare of the community; (v) Will not have a detrimental effect on the future development of contiguous properties *1439 or the general area, according to the Comprehensive Plan, including any subsequent amendment to the plan adopted by the Council; (vi) Will not result in the creation of objectionable or excessive noise, lights, vibrations, fumes, odors, dust or physical activities taking into account existing uses or zoning in the vicinity; (vii) Will not overburden existing public services and facilities; (viii) Will be sufficiently accessible to permit entry onto the property by fire, police, rescue and other services; and (ix) Will be consistent with the definition of a zoning exception, and will meet the standards and criteria of the zoning classification in which such use is proposed to be located, and all other requirements for such particular use set forth elsewhere in the Zoning Code, or otherwise adopted by the Planning Commission. (2) In issuing its order to grant a zoning exception as provided in the Zoning Code, the Commission may place more restrictive requirements and conditions on applications than are provided in the Zoning Code.... Id. Exhibit "D" to Petition for Injunctive Relief, Declaratory Judgment and Damages, Doc. No. 1 in Case No. 95-1005-Civ-J-20. Plaintiffs contend that this same language has been declared unconstitutional in every challenge brought against comparable legislation. The Court has carefully reviewed the cases cited by Plaintiffs and finds most of those cases to be distinguishable on the facts. In Shuttlesworth, the Supreme Court struck down as unconstitutional an ordinance making it an offense to participate in any parade or procession or other public demonstration" without first obtaining a permit from the City Commission. The ordinance provided that the government official could refuse to issue the permit if the proposed use threatened "the public welfare, peace, safety, health, decency, good order, morals, or convenience" of the community. The Court held that the ordinance vested "virtually unbridled and absolute power" in the City Commission. Similarly, in 3570 East Foothill Blvd., Inc. v. City of Pasadena, 912 F.Supp. 1268, 1275-76 (C.D.Cal.1996), the court struck down conditional use permit ordinances which allowed for the sale of alcohol and the provision of arcade games, billiards, and shuffleboard as part of a restaurant use. The city could deny a permit if the proposed use would be "detrimental to the public health, safety, or welfare of persons residing or working adjacent to the neighborhood of such use, or injurious to properties or improvements in the vicinity." The court noted that the language was "almost identical to the language struck down as unconstitutional in Shuttlesworth," and in another California district court case, Dease v. City of Anaheim, 826 F.Supp. 336 (C.D.Cal.1993), and invalidated the ordinances as unconstitutional prior restraints on speech. Id. In each of those cases, the language concerning the health and welfare of the community was not tied to anything in particular. In contrast, the language of the special exception in this case requires that the zoning use "[w]ill not have an environmental impact inconsistent with the health, safety and welfare of the community...." § 656.131(c)(l)(iii) (emphasis supplied). Such language is specifically tied to the environment and therefore does not suffer from the vagueness and potential for misuse that the courts in the other cases faced. Plaintiffs also cite the case of Santa Fe Springs Realty Corp. v. City of Westminster, 906 F.Supp. 1341, 1367 (C.D.Cal.1995), which declared invalid a requirement that the proposed use be consistent with the City Comprehensive Plan. In that case, however, unlike the case at hand, at the time the lawsuit was bought the Comprehensive Plan did not exist. In this case, Page 13 the City has an existing plan. Requiring the use to be consistent with an existing plan is not problematic. See § 656.131(c)(l)(i). There exists "definite and objective standards" by which the City can make its decision whether to grant a special exception. Cf. Dease, 826 F.Supp. at 344. [10][11] It is well settled that the government may legitimately exercise its police powers to advance its aesthetic interests. Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805, 104 S.Ct. 2118, 2129, 80 L.Ed.2d 772 (1984). Both traffic safety and aesthetics are substantial governmental *1440 goals. See id. at 811, n. 28, 104 S.Ct. at 2132, n. 28. Therefore, the City's requirements, for example, that the use be "compatible with the existing contiguous uses or zoning and compatible with the general character of the area, considering population density, design scale and orientation of structures to the area," § 656.131(c)(l)(ii), and that the uses will not have a "detrimental effect on vehicular or pedestrian traffic ...", § 656.131(c)(l)(iv), are valid governmental interests and do not vest the City with unbridled discretion. Likewise, most of the other criteria in § 656.13 l(c) set forth permissible bases for land use restrictions. See e.g., Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1580 & n. 20 (concern about effect of proposed development on traffic, on congestion, on surrounding property values, on demand for city services and on other aspects of the general welfare are permissible bases for land use restrictions); Grosz v. City of Miami Beach, 721 F.2d 729, 738 (llth Cir.1983) (recognizing zoning interests of reduced traffic, noise, and litter), cert, denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984). [12] With only one exception, the Court finds as a matter of law that each of the provisions in § 656.131(c) pass constitutional scrutiny. The exception is § 656.131(c)(2), which provides: In issuing its order to grant a zoning exception as provided in the Zoning Code, the Commission may place more restrictive requirements and conditions on applications than are provided in the Zoning Code.... The Court finds that provision, which allows the Commission to place "more restrictive requirements and conditions on applications" than are provided in the Zoning Code does not provide the required "narrow, objective and definite standards to guide the licensing authority," and, on the contrary, grants the Commission "unbridled discretion" to make decisions on any basis at all, including an impermissible basis, such as content-based regulation of speech. See Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. at 938-39; Dease, 826 F.Supp. at 343-44. Therefore, the Court must determine whether the unconstitutional provision can be severed from the ordinances, or, whether the entire adult business regulation scheme must be invalidated. [13] [14] "The standard for determining the severability of an unconstitutional provision is well established: Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law." Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 1480, 94 L.Ed.2d 661 (1987); 3570 Foothill Blvd, 912 F.Supp. at 1280-82. In this case, is it clear that without § 656.131(c)(2), the adult use ordinance is "fully operative." Accordingly, severing the offensive provision, the Court finds that a total of 95 sites are potentially available, which allow Plaintiffs reasonable avenues of communication under Renton. However, Plaintiff's Motion for Partial Summary Judgment on the issue of availability of alternate sites is GRANTED IN PART, in that the Court declares § 656.131(c)(2) of the Jacksonville City Code to be unconstitutional, and will sever that provision from the Ordinance. b. Narrowly Tailored to Further City's Interest [15] Having found that the City's zoning Ordinances further the City's interest in combating the undesirable secondary effects of adult entertainment establishments, the Court must next address whether the Ordinances are narrowly tailored to further that interest. In a similar case upholding distance ordinances, the Eleventh Circuit held that "[s]o long as the distance requirements are not greater than necessary to prevent the secondary effects, they are narrowly tailored to serve their purpose." International Eateries, 941 F.2d at 1163. In that case, similar to the instant cases, the ordinances prohibited location of an adult nightclub within 500 feet of a residentially zoned district or 1000 feet of a church. Noting that the distances required by the ordinances were no farther than those approved by the Court in Renton, the court Page 14 held the ordinances were narrowly tailored to serve their purpose of combating the secondary effects of adult entertainment establishments. Id. at 1165. In this case, as in International *1441 Eateries and Renton, the Ordinance prohibits adult businesses from locating within 500 feet of residences, within 1,000 feet from schools, churches and other adult uses, and within 500 feet from bars. The Court finds those distances, which are no greater than those approved by the courts in Renton and International Eateries, and serve the substantial government interest of combating the secondary effects of nude entertainment, are narrowly tailored to achieve that objective. (7) Amortization Period Plaintiffs move for partial summary judgment for the failure of the revised Ordinance to provide a reasonable amortization period. The first of the two Ordinances provided for an amortization period of approximately four months before the zoning requirements of the Ordinance were to go into effect. Ord. 94-190-651 § 656.725. However, the Court declared the licensing and zoning provisions of the original Ordinance unconstitutional. Thereafter, the City enacted a new Ordinance which expressly repealed the four-month amortization period in the original Ordinance. Plaintiffs contend "the new Ordinance forced each of these Plaintiffs to close their businesses." Motion at 17. The newly enacted Ordinance 95-307-109 lacks either "grandfathering" allowances or a reasonable amortization period. Therefore, the amended Ordinance demanded immediate compliance with the zoning and physical requirements of the law, forcing Plaintiffs to close their businesses. The City's deprivation of Plaintiffs' property without allowing Plaintiffs a reasonable opportunity to recover their investment or relocate is unreasonable. See Ebel v. City of Corona, 767 F.2d 635, 639 (9th Cir.1985); T-Marc, 804 F.Supp. at 1504 (amortization period must be reasonable). However, because Plaintiffs operated their businesses between the time the Court declared the original Ordinance unconstitutional and until the new Ordinance was enacted, Plaintiffs suffered no "taking" of property for which they are entitled to compensation, unless the Court declares the new Ordinance to be unconstitutional. Furthermore, since the parties have briefed the Court on this issue, the City created a new Section 656.725(a), in Ordinance 95-413-300, which provides alternate amortization periods. That section provides, in part: Notwithstanding any ordinance to the contrary, and notwithstanding any prior legal status of any adult entertainment or services facility (as defined in Part 11), as of July 1, 1996, no adult entertainment or service facility shall be operated unless it is located on a site or parcel which is zoned CCG-2, an exception has been granted or which is zoned CCBD; provided however, the requirement for an exception shall not be imposed if the facility was lawfully operating as an adult entertainment or service facility prior to the zoning code being amended to require an exception and its facility has continuously operated as such a facility. The remaining sections of Section 656.725 provide for alternative amortization periods in the event the amortization period to July 1, 1996, is declared to be invalid or otherwise nonenforceable. For example, § 656.725(b) extends the amortization period to July 1, 1997; § 656.725(b) provides for an amortization period until July 1, 1998, and so on. [16] The shortest amortization period provided in the Ordinance Code is approximately 19 months from the enactment of Ordinance 95-190-651 and approximately 15 months from the enactment of Ordinance 95-307-109. The Court finds the amortization period to July 1, 1996 to be reasonable. See T-Marc, 804 F.Supp. at 1504 (upholding a one year amortization period); SDJ, Inc. v. City of Houston, 636 F.Supp. 1359 (S.D.Tex. 1986), affd, 837 F.2d 1268 (5th Cir.1988) (upholding a six month amortization period). Accordingly, Plaintiffs' Motion for Partial Summary Judgment as to the Ordinance's failure to provide a reasonable amortization period is DENIED. The remainder of Plaintiffs' Motion for Partial Summary Judgment as to license disclosures and disparate sentencing guidelines is without merit and is therefore DENIED. B. J.R.'s (1) Procedural Safeguards for Zoning Exceptions For the reasons discussed in section II.A.(6)(a), Page 15 Plaintiffs' Motion for Partial Summary *1442 Judgment as to the Issue of Procedural Safeguards for Zoning Exceptions (Doc. No. 20) is GRANTED IN PART and DENIED IN PART. As previously held in this opinion, section 656.131(c)(2) of the Jacksonville City Code is declared to be unconstitutional, and is severed from the Ordinance. The remaining criteria of § 656.131(c) are valid, and Plaintiffs motion for partial summary judgment with respect to enactment procedures of those criteria is denied. Defendant's cross Motion for Summary Judgment on the issue of procedural safeguards (Doc. No. 26) is DENIED IN PART, in that the Court previously held earlier in this opinion that section 656.131(c)(2) of the Jacksonville City Code is unconstitutional, and is severed from the Ordinance. In all other respects, Defendant's cross Motion for Summary Judgment on the issue of procedural safeguards (Doc. No. 26) is GRANTED. (2) Alternative Avenues of Communication For the reasons discussed in section II.A.(6)(a) and section III, Plaintiffs' Motion for Partial Summary Judgment as to the Issue of the Availability of Alternate Sites (Doc. No. 20) is DENIED. The City's cross Motion for Summary Judgment with respect to the issue of availability of alternate sites (Doc. No. 26) is GRANTED. (3) Narrowly Tailored to Further City's Interest For the reasons discussed in section II.A.(6)(b), Defendant's Motion for Summary Judgment with respect to whether the Ordinance Code provisions are narrowly tailored to serve the government interest at issue is GRANTED. (4) Amortization Period For the reasons discussed in section II.A.(7), Plaintiffs' Motion for Partial Summary Judgment as to the Issue of Amortization (Doc. No. 20) is DENIED. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW On July 31, 1997, the Court heard evidence on the remaining issues in dispute: whether the provisions in the Ordinances (1) requiring a minimum 1000 ft. room size, section 150.301(h) of Ordinance 95-307, and (2) prohibiting adult businesses from operating between the hours of 2:00 A.M. and 12:00 Noon, section 150.422 of Ordinance 94-190, are narrowly tailored to achieve the legitimate government interests of combating secondary effects of nude dancing and, in addition, whether the 1000 feet room requirement allows reasonable alternative avenues of communication. A. 1000 Ft. Room Size Section 150.301, Ordinance 95-307, sets forth the general size requirements for adult entertainment establishments. Rooms which are legal in these facilities fall into four categories: (1) the entrance room or lobby, which may be of any size; (2) sanitary facilities; (3) rooms marked "no customers or patrons allowed;" and (4) all other rooms, which must not be less than 1,000 square feet in area. Specifically, the Ordinance Code provides: (g) All premises shall have an entrance room or lobby, i.e., the room which is entered from the outside, and sanitary facilities as set forth in subsection (e). The entrance room or lobby may be as large or as small as the licensee chooses. (h) All other rooms [other than entrance room or lobby, i.e., "the room which is entered from the outside," see § 150301(g) ] must either: (1) be not less than 1,000 square feet in area; or (2) be clearly marked in letters not less than two inches in height "No Customers or Patrons Allowed". § 150.301(g), (h). Plaintiffs assert the 1000 square feet room requirement is irrational and serves no government interest, and therefore is not narrowly tailored. Furthermore, Plaintiffs argue the size requirement does not allow them alternative avenues of communication within the City of Jacksonville. As discussed earlier in this opinion, the Court previously found the Ordinances were enacted to combat the undesirable secondary effect of nude entertainment—a legitimate government interest. See Order of June 29, 1996, at 10-11. The Court therefore will focus on whether the Ordinances are narrowly *1443 tailored to serve the government interest. The Court will refer to the earlier part of this opinion, wherein the evidence showed that a total 95 sites were potentially available within the CCBD and CCG-2 zones that met the distance requirements of the Ordinances, and the Court found that as a matter of law, that Page 16 number provided Plaintiffs reasonable avenues of communication. See section II.A.(6)(a). The Court also determined as a matter of law that with only one exception, the exception criteria of § 656.131(c) pass constitutional scrutiny, and severed the offensive criteria. Id. The parties presented additional evidence at trial with respect to the 1000 square feet room requirement, which the Court will consider to determine if the provision is narrowly tailored to achieve the governmental objective of combating secondary effects of nude dancing and whether Plaintiffs still have reasonable avenues of communication given the size requirement. Brian Cleland testified that he operated his business called "Touch of Class" on 8841 Atlantic Boulevard pursuant to a written lease entered into on June 1994. Plaintiffs Ex. 1. He operated his business for five months before the initial Ordinance was enacted. Cleland described his business as nude entertainment consisting of nude and partially nude dancing akin to a traditional striptease type of performance. The dancers/models, who were independent contractors, performed mostly to music. Cleland also sold lingerie on the premises. He described the physical layout of his business as follows: a foyer area in the front part of the building, about 4 feet by 6 feet in size, in which there was a locked guard gate with an employee stationed there to prevent anyone from entering the rest of the building without consent; a "lounge," which was the largest room at 16 feet by 20 feet, or 320 square feet; and two "session" rooms or modeling studios in the rear of the building approximately 10 feet by 12 feet in size. The lingerie was showcased in the lounge area, where it and other novelty items were sold. The business was 850 square feet in total. The session rooms had a partition behind which the model could change clothes. The doors on the session rooms closed but did not lock and the rooms had peepholes which Cleland used to occasionally monitor the sessions "so no one would do anything wrong." Cleland testified that when he looked through the peepholes, he occasionally saw customers masturbating and exposing their genitals to the women. On further questioning, Cleland admitted that he did not consider masturbation and exposed genitals to be "wrong." Rather, he said the peepholes were there for the models' protection, to prevent undue physical harassment by the customers. He was aware the models were tipped by customers and confirmed that tips from clients were their only form of compensation; they were not paid anything by Cleland. Cleland testified that when the Ordinance was enacted, he could not retrofit his business to meet the 1000 square feet room requirement. He said he would have had to move his business to another location, and he did not know of any. He testified that he went to a particular area, and found a potential site to relocate his business. However, Cleland said that although he possibly could "physically" operate the modeling studios if they were 1000 square feet, he could not do so economically. Cleland voluntarily closed his business on March 1, 1995, reopened it on March 11, 1995, and again closed it on April 3, 1995, and it has remained closed. Jerome Bonnett testified that he operated Lady J's Lingerie for two years before the Ordinances were enacted. His business consisted of an open showroom, which was 20 feet by 20 feet in size and the largest room; a small lounge area for the models with a TV; four modeling rooms, approximately 10 feet by 12 feet each, with doors and "look holes"; and a manager's room. Unlike Cleland's business, Lady J's did not have a foyer. The total square footage of Lady J's was 1500 square feet. Bonnett described his business as a retail lingerie shop with private modeling in which the models performed semi-nude dance wearing some, albeit transparent, lingerie, usually to music. He, too, compared their performances to traditional striptease in adult night clubs. Bonnett also admitted that he was aware of masturbation and display of genitals "in some cases" at Lady J's, and that the modeling rooms contained tissues and lotion in "anticipation" of such activities. His *1444 models, too, were only compensated through tips from clients. He said he did not know if his business would be able to operate without doors on the modeling rooms or if there was a large open room. He said he never tested the feasibility of those changes. Like Cleland, Bonnett testified he used the look holes primarily for the protection of the models, so they would not be "roughed up" by clients. When the Ordinance was enacted, Bennett's business did not meet the 1000 square feet room requirement. He checked with his landlord to see if his business could be retrofitted, but Page 17 learned that because of the construction of the walls, it could not be done. He checked briefly to find a new location, but could not find one. Lady J's was closed in April 1995. Bonnett operates similar businesses in other cities, but none in Jacksonville. Prior to the Ordinance, Bonnett testified that there were 10 to 15 "lingerie shops" similar to Lady J's in Jacksonville, and now there are none. Plaintiffs expert, Bruce McLaughlin, a renowned expert in land use law who has testified nationally in numerous federal and state cases concerning adult entertainment ordinances, [FN8] testified concerning an exhaustive survey he conducted in Jacksonville to determine the availability of sites in the City. McLaughlin explained his methodology to the Court. He took a random sample of the five planning areas of the City, to insure statistically significant representation of buildings in all types of zoning areas, and took external measurements of all free standing buildings in those areas. He determined from his survey that approximately 50% of the sites were immediately disqualified because they would not meet the 1000 square feet room requirement of the Ordinance. After excluding other locations, i.e., strip center areas and other areas in which Plaintiffs could not meet additional requirements such as restrictive covenants, parking lot requirements, etc., McLaughlin concluded that "close to 60%" of the available sites in Jacksonville were eliminated from consideration because of the Ordinance. FN8. McLaughlin was certified as an expert in land use law, particularly with respect to adult businesses. See Plaintiffs' Exhibit 3 (McLaughlin List of Trial Testimony) and Exhibit 4 (McLaughlin Resume). [17] Initially the Court notes that although Plaintiffs appear to focus their attack on the 1000 square foot room requirement, the Ordinance does not prevent Plaintiffs from expressing their erotic message in rooms smaller than 1000 square feet. The Ordinance allows that the "room which is entered from the outside" to be of any size. Therefore, Plaintiffs' contention that they cannot find sufficient buildings in the City of Jacksonville that would accommodate the Ordinance's size requirements is without merit. The evidence in this case clearly showed that with some minor retrofitting, Plaintiffs could simply move the performances from the back of their buildings to their front rooms. In that case, they could make the rooms as large or as small as they wish. There is no restriction in the Ordinance that nude dancing could not take place in the entrance rooms. Plaintiffs' claim that they cannot put the performances in the front room for fear of someone, i.e., a female shopper, inadvertently entering their "lingerie shop" expecting a traditional retail lingerie store, such as Victoria's Secret, is a potential problem but not one in which the City need concern itself. Plaintiffs could dispel that problem by placing signs outside the building alerting potential customers the adult conduct inside. In any event, the Ordinance need only provide Plaintiffs with reasonable avenues of communication, which the Court finds that it does. [18] In addition, based on the evidence adduced at trial, plus the previous evidence submitted in the record, the Court finds that even the 1000 square feet room requirement is both narrowly tailored to achieve the legitimate government objective of preventing secondary effects of masturbation and prostitution, [FN9] and that there exist reasonable avenues *1445 of communication in which Plaintiffs can operate their businesses and still meet the requirements of the Ordinance. As to the first finding, Plaintiffs' own witnesses testified that masturbation took place in the modeling rooms, and was in fact anticipated by the owners that it would occur, as evidenced by their providing tissues and lotion for that purpose. The Ordinance provision seeks to prevent customers from masturbating in the presence of a nude or scantily clad woman who will earn her entire "tip" from the masturbating man who is closed in a room along with the naked woman. A larger room would still allow the "performers" to engage in the type of expression Plaintiffs described, a traditional form of striptease, while at the same time discouraging the unwanted secondary effects of public masturbation, a legitimate government objective. By requiring a larger room, the establishment is encouraged to allow multiple entertainers and customers in the same room at the same time, again discouraging secondary effects. [FN10] In Barnes, the Supreme Court classified totally nude dancing as "expressive conduct within the outer perimeters of the First Amendment," but only "marginally so." 501 U.S. at 566, 111 S.Ct. at 2460. In this case, accepting Plaintiffs' testimony that the type of expression the models perform is akin to a traditional striptease, certainly Plaintiffs are afforded no greater Page 18 protection than a minimal level. The Ordinances in this case allow Plaintiffs the opportunity to express their erotic message-nude dancing—to a potentially larger audience without the additional risk of promoting the unwanted effects of public masturbation and prostitution that individual performances in a private room encourage. FN9. There was no evidence presented at trial that prostitution takes place in the modeling rooms at Plaintiffs' establishments. However, an affidavit of a Jacksonville Sheriff's Office police officer (Doc. No. 14), submitted in support of the City's opposition to Plaintiffs' motion for preliminary injunction, and City of Jacksonville Records (Doc. No. 26), describing arrests for, inter alia, prostitution at lingerie shops, and providing studies from other cities concerning the secondary effects of nude dancing establishments in promoting prostitution and lewd and lascivious behavior, and other illegal acts, submitted in support of Defendant's motion for summary judgment, clearly show evidence of prostitution at Plaintiffs' and similar types of establishments. Of course, Renton held that a city may rely on its own as well as other cities' studies to demonstrate secondary effects. 475 U.S. at 51-52, 106 S.Ct. at 930-31. The same evidence in the record in this case also confirms that the male customers who frequented the establishments were encouraged by the models to "get comfortable," which is what the models were told by the owners to say to the customers to get them to disrobe and masturbate. The models used the term "get comfortable" so that she would know that the male in the room with her was not a police officer before she went too far. FN10. Plaintiffs have taken issue with the size of the room, because it diminishes the opportunity for the models to perform individually in front of customers, exactly what the Ordinance is seeking to prevent. Undeniably, the 1000 square foot rooms are considerably larger than the approximate 10 feet by 12 feet rooms in which Plaintiffs' models had performed. However, a room of 1000 square feet, or 32.5 feet by 31 feet, is actually not much larger than a living room in a private home. Therefore, it is small enough to still provide an atmosphere conducive to legal adult entertainment while at the same time inhibiting individual performers and customers from physically interacting--thus it is narrowly tailored to achieve the City's legitimate objectives. [19] As to the second issue, the Supreme Court in Renton found that the more than five percent of the entire land area of the city that was open to use as adult theater sites allowed for reasonable alternative avenues of communication. 475 U.S. at 53, 106 S.Ct. at 931-32. Under the Renton standard, by Plaintiffs' experts own testimony, the nearly forty percent of sites that would be available for Plaintiffs' businesses would easily pass constitutional scrutiny. The fact that fewer sites might be available because Plaintiffs, as anyone, also would have to comply with other zoning restrictions or otherwise fend for themselves in the real estate market does not give rise to a First Amendment violation. As the Supreme Court noted, "the First Amendment requires only that [the city] refrain from effectively denying [plaintiffs] a reasonable opportunity to open and operate [an adult business] within the city," and, like in Renton, the Ordinance before the Court "easily meets this requirement." 475 U.S. 41, 54, 106 S.Ct. 925, 932. Of course, McLaughlin also did not appear to consider a "common sense" solution to the problem of the smaller-size sites within strip malls-that is, that Plaintiffs could purchase more than one site and remove walls to accommodate the 1000 feet room size. There is no prohibition in the Ordinance that there cannot be archways within the larger-size room, because the room still would achieve the objectives of the Ordinance-providing a larger open area to discourage unwanted secondary effects-while still allowing Plaintiffs ample opportunity to express their message. Factoring *1446 in those additional sites would add to the "nearly forty percent" of sites Plaintiffs' expert testified were available for Plaintiffs to utilize for their businesses, and certainly would meet the requirements of Renton. B. Hours of Operation Section 150.422, Ordinance 94-190, provides: (a) Adult entertainment facilities, adult Page 19 bookstores and adult movie theaters shall not be open between the hours of 2:00 a.m. and noon. Brian Cleland, owner of Plaintiff "Touch of Class," testified that during the five months he operated his business, his hours of operation were 11:00 a.m. until 2:00 a.m. He said that about 10 to 15% of his customers patronized his business during the morning hours, and would have to turn customers away if he complied with the hour restriction in the Ordinance. On cross-examination, however, Defendant pointed out that during his deposition, Cleland testified that his business operated between the hours of 4:00 p.m. and 1:00 a.m., and did not say anything about morning hours. See generally Deposition of Cleland, Doc. No. 87. [FN11] Cleland did not contest his earlier testimony. Jerome Bonnett, who operated Lady J's Lingerie for two years, operated his business from 10:00 a.m. to 3:00 a.m. weekdays, and 10:00 a.m. to 4:00 a.m. on weekends. His testimony was that he generated the same level of business between the hours of 10:00 a.m. to noon as he did from 3:00 a.m. to 4:00 a.m., although he did not testify as to what proportion of his total business was generated during those hours. However, Bonnett admitted that the Ordinance's provision restricting hours of operation played only a limited part in his decision not to re-open his business. The Court also heard from Plaintiff's zoning expert, Bruce McLaughlin, on the City's regulation of hours of operation. McLaughlin testified that the three major reasons for government to limit hours of operation are (1) the potential impact on other properties, (2) for safety reasons, to allow fire marshals and other officials access to inspect properties, and (3) for crime concerns. Typically, the types of businesses in which hours are regulated for those reasons are bars and taverns. McLaughlin said that according to the Planning Division of the Jacksonville Sheriffs Office, the peak times for police demand are late afternoon and early evening. He testified that demand between the hours of 10:00 a.m. to 11:00 a.m. was 3.9% and between 11:00 a.m. to noon was 4.1%, compared to 6.3% of total demand for the late afternoon/evening hours. In McLaughlin's opinion, there was no rational or legitimate connection between police demand and the hours restriction in the Jacksonville Ordinance, and that it was merely a "back-door" attempt to limit or eradicate adult businesses in Jacksonville. FN11. Defendant used Cleland's deposition testimony only to impeach his testimony at trial, and did not enter the deposition into evidence. However, the City previously had submitted Cleland's deposition in the Court file (Doc. No. 87, filed September 17, 1996) in support of its motion for summary judgment (Doc. No. 85, filed the same day); therefore, the Court may consider the deposition since it is part of the record in this case. Officer Anthony Quintero, a vice detective in the Jacksonville Sheriffs Office (JSO), testified for Defendant. Quintero testified that in his nearly three years experience on the vice squad and over 7 years with the JSO, there was a positive correlation between the hours of operation of adult businesses in the areas in which some of Plaintiffs operated and the level of prostitution in the area-trie more customers in the adult businesses, the more customers that were available for prostitutes. He further testified that while most of the prostitution occurred during the evening hours, when further pressed on cross-examination, the officer admitted the "positive correlation" between prostitution and the hours of operation was highest between the hours of 12:00 noon and 2:00 a.m. Finally, Officer Quintero admitted that no arrests for prostitution had been made at any of Plaintiffs' clubs, and that in fact, the officer was not working vice during the time Plaintiffs were operating their businesses. Notwithstanding Officer Quintero's testimony, which the Court does not find to have contributed any additional support to Defendants' argument regarding the correlation of police activity and hours, the Court does not find the restriction on hours of operation to *1447 be an unreasonable restriction on Plaintiffs' free speech rights. First, the Court does not find Cleland was a credible witness on that issue. On cross-examination, Defendant pointed out that during his deposition, Cleland testified that his business operated between the hours of 4:00 p.m. and 1:00 a.m., and did not say anything about morning hours. See Deposition of Cleland, Doc. No. 87. Cleland did not contest his earlier testimony. Second, even the Jerome Bonnett, who said that the change in hours would have reduced his business, testified that the hours provision played a "limited part" in his decision not to reopen. Page 20 Ordinances restricting the hours of operation in adult-oriented establishments have been upheld on numerous occasions. The courts addressing the issue have found that the noise and increased crime rate during the wee hours of the morning justifies a modest reduction in hours of operation. See Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir.1986) (upholding adult business ordinance which restricted hours of operation for adult bookstore to 10:00 a.m. to 12 midnight, Mondays through Saturdays, with no hours of operation allowed on Sundays); Kutrom Corp. v. City of Center Line, 979 F.2d 1171 (6th Cir.1992) (massage parlor; 9:00 p.m. closing); Envy Limited v. City of Louisville, 734 F.Supp. 785, 789 (W.D.Ky.) (restriction in hours of operation of adult businesses from 12:00 a.m. to 6:00 a.m. justified due to increase in crime rate during those hours); Ellwest Stereo Theater, Inc. v. Boner, 718 F.Supp. 1553, 1577 (M.D.Tenn.1989) (restriction of operation of adult businesses between 3:00 a.m. and 8:00 a.m. on weekdays and Saturdays and between 3:00 a.m. and 12:00 noon on Sundays is only a "minimum infringement" on the plaintiffs' First Amendment rights and "is justified by the difficulty of policing and enforcing the ordinance in the wee hours of the morning"). [20] In this case, the Jacksonville Ordinance limits adult businesses from operation between the hours of 2:00 a.m. and 12:00 noon, leaving fourteen hours in every day, over 5,000 hours per year, in which the adult entertainment establishments may operate and express their message. The Third Circuit upheld a restriction that required a 10:00 p.m. closing and limited adult entertainment to 3,600 hours per year, saying, "We think the Constitution requires no more." Mitchell v. Commission on Adult Entertainment Establishments of the State of Delaware, 10 F.3d 123, 139 (3rd Cir.1993). According to the testimony of one adult business, the hours restriction represents at most a four-hour reduction in Plaintiffs' business, two of those hours during the slower period from 10:00 a.m. to noon. The Court finds that the manner in which the City seeks to regulate the hours of adult businesses rationally relates to the goal of preventing crime, a legitimate government interest. The restricted hours of operation fall within the period of time when crime is more likely to occur and law enforcement personnel are more likely to be busy with other matters. Given the fact that Plaintiffs may express their erotic message for fourteen hours per day, seven days per week, such a restriction does not infringe upon Plaintiffs' First Amendment rights, because the requirement serves a legitimate interest of preventing crime and is narrowly tailored to achieve that interest. IV. OTHER CONSTITUTIONAL CLAIMS Although not raised at trial, Plaintiffs had raised other claims in its complaint that the Court must address. (1) Void for Vagueness Claim Plaintiffs allege that Ordinance 94-190-651 is void for vagueness in various respects. One of the sections that Plaintiffs' claims is void for vagueness, section 150.212, previously was declared unconstitutional by this Court in its Order of March 10, 1995, granting Plaintiffs' preliminary injunction (Doc. No. 18), and was subsequently amended in Ordinance 95-307-109. Therefore, Plaintiffs' claim as to that section is moot. The remaining sections that Plaintiffs claim are void for vagueness are: Sections 150.205(10), 150.206, 150.501, 150.103(n), 150.103(i), 150.410, and 150.504. See Complaint at 8. [21] A statute is facially vague in violation of due process only when the law is impermissibly vague in all of its applications. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 *1448 S.Ct. 1186, 1192-93, 71 L.Ed.2d 362 (1982). The Court finds after carefully reviewing each of the claimed offensive provisions that none of the provisions suggested by Plaintiffs is vague in all its applications. Therefore, Plaintiffs' claim that the Ordinance is void for vagueness is DENIED. (2) Equal Protection Claim Plaintiffs claim that Ordinance 94-190-651 includes certain exemptions which violate Plaintiffs' rights of Equal Protection under the Fourteenth Amendment to the United States and Florida Constitutions. The Supreme Court recently discussed the standard by which courts must review legislation to determine if the equal protection challenge is valid: In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental Page 21 constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations omitted.] Where there are "plausible reasons" for [the government's] action, "our inquiry is at an end." [Citation omitted.] Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 313-14 113 S.Ct. 2096, 2101, 124 L.Ed.2d211 (1993). The Court also noted that the absence of legislative facts explaining the distinction on the record has no significance in a rational-basis analysis. "In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Id. at 315, 113 S.Ct. at 2102. With the exception of the exemption for facilities owned or operated by the City of Jacksonville, found in section 150.611 (a), the Court finds that the City has come forth with "plausible reasons" for most of the exemptions in the Ordinance Code. With respect to the exemption in section 150.61 l(a), the City argues that City facilities are exempt because "[t]hey have never once sponsored or held an event where prostitution occurred." See City's Memorandum in Support of its Motion for Partial Summary Judgment (Doc. No. 25) at 18. The Court disagrees that the relevant question is whether prostitution, a so- called secondary effect of adult entertainment which the Ordinance is seeking to prevent, occurred at the establishment. The relevant question is whether adult entertainment which may lead to the undesired secondary effects of prostitution, etc., has the potential to occur on the exempt property. While there is no evidence in the record of the cases presently before the Court that such activity has taken place on City-owned property, the Court takes judicial notice of another matter pending before this Court in which the evidence clearly shows there is entertainment taking place on what is possibly property which the Ordinance exempts because, presumably, it is owned by the City. [FN12] In White's Place, Inc. v. Nathaniel Glover, Case No. 97-930- Civ-J-20C, filed on July 28, 1997, Plaintiff seeks a preliminary injunction against the City of Jacksonville prohibiting the City, inter alia, from enforcing the Jacksonville Adult Entertainment and Services Code, the Ordinance at issue in this case. The Plaintiff in that case operates a business called "The Gold Club," a show bar that engages in adult entertainment. Plaintiff claims the property on which The Gold Club operates is City-owned property, and is therefore exempt from the provisions of the Ordinance Code. There is evidence in that case there may be touching between customers and nude performers. FN12. There is currently pending in state court the issue of whether the property on which The Gold Club is located, which is owned either by the Jacksonville Port Authority or the City of Jacksonville or both, is subject to the exemption of the Ordinance Code. How ever that issue is resolved is not dispositive in this case, because the Court is declaring the City-owned property exemption unconstitutional. Therefore, it does not matter how the state court rules on the property issue. [22] The Court need not resolve whether the property on which The Gold Club is located is or is not City-owned property. Defendant has not stated a rational basis for the exemption because there is a possibility that nude entertainment, and the secondary effects which follow, can in fact occur on *1449 City-owned property. Thus, Defendant's stated rational basis is not even plausible. Accordingly, the Court finds that the exemption in Ordinance 94-190-651 and 95-307-109, § 150.611, for City-owned or operated facilities, is unconstitutional as it violates the Equal Protection Clause of the Fourteenth Amendment. However, the Ordinance has a self-executing severability clause in section 150.611, which clearly provides that if the exemptions are "held or declared invalid or unconstitutional, in whole or in part, then the entire exemption is void and invalid and no person shall be entitled to such exemption." Thus, the Court can sever the above exemption, § 150.61 l(a), from the Ordinances. Accordingly, with the exemption severed from the Ordinance Code, City-owned or operated property is no longer exempt. See Ordinances 94- 190-651 and 95-307-109, § 150.611(b). The remaining provisions of the Ordinances are applicable. V. CONCLUSION Page 22 With the exception of §§ 150.61 l(a) and 656.131(c)(2) of the Jacksonville City Code, which the Court find to be unconstitutional, and which will be severed from the Ordinance Code, the Court finds that the Ordinances at issue (1) are content-neutral; (2) are designed to serve a substantial government interest; (3) do not unreasonably limit alternative avenues of communication; and (4) are narrowly tailored to serve the government interest at issue. Moreover, they are not void for vagueness, do not violate Plaintiffs' federal due process rights, and, with the exception noted above for section 150.611 (a), do not amount to an equal protection violation. Accordingly, it is ORDERED AND ADJUDGED: Case No. 95-181-Civ-J-20A/95-434-Civ-J-20A: (1) Defendant's Motion for Judgment of Dismissal with Prejudice as to Plaintiffs Amy Watson and Michael Crowell (Doc. No. 56) is GRANTED. This action as to Plaintiffs Amy Watson and Michael Crowell is hereby DISMISSED WITH PREJUDICE; (2) Defendant's Motion for Partial Summary Judgment as to Enactment Procedure for Challenged City Ordinances (Doc. No. 57) is GRANTED; (3) Plaintiffs' Motion for Partial Summary Judgment as to the Issue of Availability of Alternate Sites is GRANTED IN PART in that the Court declares § 656.131(c)(2) of the Jacksonville City Code to be unconstitutional, and will sever that provision from the Ordinance; in all other respects, Plaintiffs' Motion for Partial Summary Judgment as to the Issue of Availability of Alternate Sites (Doc. No. 78) is DENIED; (4) Plaintiffs' Motion for Partial Summary Judgment as to the Issue of Amortization (Doc. No. 78) is DENIED; (5) Plaintiffs' Motion for Partial Summary Judgment as to the Issue of License Disclosures and Disparate Sentencing (Doc. No. 78) is DENIED; (6) Defendant's Motion for Summary Judgment of Dismissal for Lack of Standing (Doc. No. 82) is DENIED; Gregory A. King for Lack of Standing (Doc. No. 84) is MOOT; (8) Defendant's Motion for Summary Judgment (Doc. No. 85) is DENIED; (9) The Clerk shall enter judgment in favor of Plaintiffs, and against Defendant, on their claims for declaratory and injunctive relief for Ordinances 94-190-651 and 95-307-109, § 150.611 (a), which provision is declared to violate the Equal Protection Clause of the Fourteenth Amendment and, according to Defendant's Ordinance, are held invalid; (10) The Clerk shall enter judgment in favor of Defendant City of Jacksonville and against Plaintiffs on Plaintiffs' claims for declaratory and injunctive relief and for damages, with the exceptions noted in (3) and (9) above, where the Court declared §§ 150.61 l(a) and656.131(c)(2) of the Jacksonville City Code to be unconstitutional severed the provisions from the Ordinance Code. Plaintiffs' remaining claims, and Plaintiffs' *1450 request for injunctive and declaratory relief and for damages, is DENIED. Case No. 95-1005-Civ-J-20A: (11) Plaintiffs' Motion for Partial Summary Judgment as to the Issues of Procedural Safeguards for Zoning Exceptions and Amortization (Doc. No. 20) is DENIED; (12) Plaintiffs' Motion for Partial Summary Judgment as to the Issue of the Availability of Alternate Sites and Amortization (Doc. No. 20) is GRANTED IN PART, in that the Court declares § 656.131(c)(2) of the Jacksonville City Code to be unconstitutional, and will sever that provision from the Ordinance; in all other respects, Plaintiffs' Motion for Partial Summary Judgment as to the Issue of Availability of Alternate Sites (Doc. No. 20) is DENIED; (13) Defendant's cross Motion for Summary Judgment (Doc. No. 26) is GRANTED IN PART and DENIED IN PART: (A) With respect the issue of procedural safeguards, the motion is DENIED IN PART, in that Section 656.131(c)(2) of the Jacksonville City Code is held to be unconstitutional, and is severed from the Ordinance. (7) Defendant's Motion to Dismiss Plaintiff (B) In all other respects, Defendant's cross Page 23 Motion for Summary Judgment (Doc. No. 26) is GRANTED. (14) The Clerk shall enter judgment in favor of Plaintiffs, and against Defendant, on their claims for declaratory and injunctive relief for § 150.61 l(a) of the Ordinance, which provision is declared to violate the Equal Protection Clause of the Fourteenth Amendment and, according to Defendant's Ordinance, is held invalid. (15) The Clerk shall enter judgment in favor of Defendant City of Jacksonville and against Plaintiffs on Plaintiffs' claims for declaratory and injunctive relief and for damages, with the exceptions noted in (13)(A) and (14) above, where the Court declared §§ 150.61 l(a) and 656.131(c)(2) of the Jacksonville City Code to be unconstitutional severed the provisions from the Ordinance Code. Plaintiffs' remaining claims, and Plaintiffs' request for injunctive and declaratory relief and for damages, is DENIED. END OF DOCUMENT