Volume 2005, Issue 6

NEWS UPDATES

ITEMS OF INTEREST

What is Lawrence's Impact on Obscenity Law
Volokh Conspiracy, 6.14.2005

U of NH Study Links Serious Crimes and Child Porn
The Union Leader, 6.8.2005
See PR and the Study

CASES

Deja Vu of Cincinnati, LLC v. Union Township, 00-4420/4529 (6th Cir. June 21, 2005) http://caselaw.lp.findlaw.com/data2/circs/6th/004420p.pdf
Township’s sexually oriented business licensing provisions do not operate as a prior restraint in violation of the First Amendment. The town’s ordinance restricting SOB hours of operation is constitutional even though it has the effect of discriminating between establishments serving alcohol and those that do not.

United States v. Bass, No. 04-6049 (6th Cir. June 29, 2005)
http://pacer.ca10.uscourts.gov/pdf/04-6049.pdf
Jury was justified in inferring knowing possession of child pornography even though there was no direct evidence that the defendant had intentionally saved images to his computer.

Zibtluda, LLC v. Gwinnett County, GA, No. 03-15685 (11th Cir. June, 9, 2005)
http://caselaw.lp.findlaw.com/data2/circs/11th/0315685p.pdf
“Adult entertainment” ordinance and Georgia rules of procedure satisfy Littleton requirements for prompt judicial review and the ordinance was duly enacted to combat adverse secondary effects.

Fantasyland Video, Inc. v. County of San Diego, 2005 WL 1429810 (S.D.Cal. Jun 14, 2005) (NO. CIV. 02CV1909-LABRBB, CIV. 02CV2023-LABRBB)
County’s sexually oriented business zoning and license ordinance is upheld in the face of numerous alleged constitutional violations. The county’s evidence in support of the ordinance need not be targeted to specific kinds of adult activities.

Illinois v. Lion's Den, Inc., No. 04-CH-26 (Ill. 4th Jud. Cir. June 10, 2005)
http://www.alliancealert.org/2005/20050614.pdf
An Illinois statute limiting location of sexually oriented businesses is constitutional. In determining whether alternative avenues of location were available to sexually oriented businesses, the court refused to restrict its inquiry to a particular township and looked to all avenues available within the county.

[ Back to Top ]

Deja Vu of Cincinnati, LLC v. Union Township, 00-4420/4529 (6th Cir. June 21, 2005)
http://caselaw.lp.findlaw.com/data2/circs/6th/004420p.pdf

Township’s sexually oriented business licensing provisions do not operate as a prior restraint in violation of the First Amendment. The town’s ordinance restricting SOB hours of operation is constitutional even though it has the effect of discriminating between establishments serving alcohol and those that do not.

Deja Vu filed a complaint challenging Union Township’s ordinance regulating the licensing of adult cabarets on grounds that it violates the First and Fourteenth Amendments. Déjà Vu’s motion for preliminary injunction was granted and denied in part by the district court. Deja Vu appealed this ruling. A divided Sixth Circuit panel ruled in favor of Deja Vu on two points: (1) the ordinance is a prior restraint in violation of the First Amendment, because it fails to provide prompt judicial review of adverse licensing decisions and (2) the ordinance restrictive closing times for cabarets without liquor licenses as compared to those with liquor licenses violate the First and Fourteen Amendments. The Sixth Circuit granted en banc review to hear numerous issues.

Déjà Vu challenged the ordinance as being violative of prompt judicial review requirements on grounds that review by the Board of Control is not quasi-judicial and in most instances is criminal nature. Under relevant state statutory provisions, only quasi-judicial administrative decisions are entitled to appeal and criminal matters are not. Looking to state precedent, the Sixth Circuit rejected Deja Vu’s arguments holding that the administrative review in question is in fact quasi-judicial and civil under Ohio law. Following City of Littleton v. Z.J. Gifts D-4, L.L.C., 124 S.Ct. 2219 (2004), the court of appeals further held that the ordinance ensured prompt judicial determination even though it did not mandate a judicial decision by a stated time. Under Z.J. Gifts, the U.S. Supreme Court held that in the absence of bad faith or evidence to believe otherwise, ordinary state rules of judicial review offer adequate assurance that a judicial decision will be promptly forthcoming.

The court of appeals further observed that Union Township’s ordinance provided for temporary licensing permit during the pendency of an appeal. Such permits are one way for a locality to comply with the Supreme Court’s Freedman factors that were applied in Z.J. Gifts and Freedman v. Maryland, 380 U.S. 51 (1965). Under Freedman three procedural safeguards are required to ensure that a prior restraint on freedom of expression is constitutional: First, “any restraint imposed in advance of a final judicial determination on the merits must . . . be limited to preservation of the status quo for the shortest fixed period compatible with sound resolution . . . " Second, “the procedure must also assure a prompt final judicial decision . . ." Third, "the burden of proving that the expression in question is unprotected must rest on the government."

Déjà Vu also challenged hour-of-operation provisions that required adult cabarets that do not serve liquor to close at 12 a.m. Those that do serve liquor are not required to close until 2:30 a.m. under state liquor law regulations. Déjà Vu argued that this violates the First Amendment and Equal Protection. Citing City of Erie v. Pap’s A.M., 529 U.S. 277 (2000), the court of appeals noted that the First Amendment claim should be analyzed pursuant to the four-part O’Brien test: “a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Déjà Vu argued that there was no evidence of secondary effects and that the regulation was not narrowly tailored in light of the fact that businesses serving alcohol were treated differently. Noting that six other circuits had upheld similar provisions, the court of appeals rejected Déjà Vu’s arguments. The majority also rejected the equal protection argument stating: “there is no evidence that the Union Township enacted the resolution with an impermissible motive, and because Union Township may act incrementally to alleviate the harmful secondary effects of adult cabarets . . . “ citing Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483 (1955).

The court of appeals held that Déjà Vu lacked standing to challenge civil disability provisions and it refused to rule on the validity of a warrantless health-and-safety inspection provision that the Township had repealed after it was enjoined by the district court. The court also summarily rejected Déjà Vu’s vagueness claims. Judge Clay joined in part by two other judges, disagreed with the majority’s prompt judicial review analysis on grounds that some cases would not be entitled to any review per his interpretation of Ohio statutory provisions. He also argued that the hours-of-operation provisions were unconstitutional in that they discriminated between businesses serving liquor versus those not serving liquor. He argued that these provisions were substantially broader than necessary to achieve the government’s interest.

United States v. Bass, No. 04-6049 (6th Cir. June 29, 2005)
http://pacer.ca10.uscourts.gov/pdf/04-6049.pdf

Jury was justified in inferring knowing possession of child pornography even though there was no direct evidence that the defendant had intentionally saved images to his computer.

The FBI learned that Bass belonged to an online group known as “Candyman” and based on this membership he was likely in possession of child pornography. After searching Bass’ computer, the FBI discovered child pornographic images. Bass admitted to viewing child pornography and to attempting to remove images from his computer. “However, he stated that he did not know (1) how to download images from the Internet or (2) that the computer was automatically saving images he viewed.” Bass was convicted by a jury of five counts of knowing possession of child pornography in violation of 18 U.S.C. § 22252(a)(5)(B).

On appeal, Bass challenged the sufficiency of evidence used to convict him of knowing possession of child pornography. The statute does not define possession. The specific issue for review on appeal: “whether an individual can be found guilty of knowing possession of child pornography under § 2252A(a)(5)(B) for viewing such images over the Internet while ignorant of the fact that the images are automatically stored on the computer.” The majority on the court of appeals panel held that the jury could reasonably infer that Bass knew that child pornography was saved to his mother’s computer. In defining possession, it cited earlier precedent and focused on the element of control as set forth in ordinary dictionary definitions.

Judge Kelly dissented, arguing that the majority effectively rewrites the statute to criminalize viewing child pornography via computer. “Evidence that he intentionally downloaded child pornography or saved any of the images to disk is non-existent.”

The court also addressed several Sixth Amendment and federal sentencing guidelines issues arising from the Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (1994) and United States v. Booker, 125 S.C.t 738 (2005).

[ Back to Top ]

Zibtluda, LLC v. Gwinnett County, GA, No. 03-15685 (11th Cir. June, 9, 2005)
http://caselaw.lp.findlaw.com/data2/circs/11th/0315685p.pdf

“Adult entertainment” ordinance and Georgia rules of procedure satisfy Littleton requirements for prompt judicial review and the ordinance was duly enacted to combat adverse secondary effects.

Zibtluda, which is “adult biz” spelled backwards, challenged the County’s denial of its sexually oriented business license on grounds that the ordinance failed to provide prompt judicial review and the ordinance was not adopted to combat adverse secondary effects. The district court ruled against Zibtluda’s facial challenge. This appeal ensued.

The ordinance provides for automatic issuance of a temporary license if a licensing application is not approved within 30 days. Any person aggrieved by the County’s failure to approve a license is entitled to review by mandamus, certiorari, or appeal in a Georgia Superior Court pursuant to the Georgia code. Zibtluda argued that Georgia law does not assure a prompt judicial decision for an applicant who seeks judicial review of a denial of a license. The court of appeals acknowledged that its earlier precedent had been overturned and a circuit split had been resolved by City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004). In Littleton, the Supreme Court held that in most instances ordinary rules of judicial review ensure than an application who files suit after he has been denied a license will receive prompt judicial decision. Applying Littleton, the court of appeals considered four factors in deciding whether Georgia satisfies this standard:

The first factor is that “ordinary court procedural rules and practices . . . provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm . . . The second factor involves “the willingness of [state] judges to exercise powers wisely so as to avoid serious threats of delay-induced First Amendment harm . . . The third factor is that “the ordinance at issue . . . does not seek to censor material. And its licensing scheme applies reasonably objective, nondiscriminatory criteria unrelated to the content of the expressive materials that an adult business may sell or display. . . The fourth and final factor is that it is sufficient for state, not local, law to provide the rules for judicial review.

The court of appeals held that these factors were satisfied by Georgia law.

Zibtluda also argued that the district court erred when it applied intermediate scrutiny, under the “secondary effects” doctrine, rather than strict scrutiny to the county ordinance. “The Supreme Court has made clear that when the purpose of an adult entertainment ordinance is to ameliorate the secondary effects of adult businesses, intermediate scrutiny applies.” Op. at 15 citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). The Supreme Court in Renton conducted its analysis in three steps:

First, it noted that the ordinance did not ban adult theaters altogether, and thus was properly analyzed as a time, place, and manner regulation . . . Second, it considered whether the regulation was content-based (in which case it was subject to strict scrutiny and presumptively unconstitutional) or content-neutral (in which case it was subject to intermediate scrutiny and thus permissible so long as it was ‘designed to serve a substantial government interest and [did] not unreasonably limit alternative avenues of communication”) . . . Finding the ordinance to be content-neutral, the Court then went on to the third step, analyzing whether the ordinance served a substantial governmental interest and left open alternative channels of communication.

The court held that the only issue in this case concerned the second prong of Renton – whether the ordinance is properly treated as content-neutral. This determination depends on the legislative purpose. Observing that the county had relied on numerous studies from other jurisdictions, the court of appeals held that the ordinance is in fact content-neutral and should be reviewed pursuant to intermediate scrutiny.

[ Back to Top ]

Illinois v. Lion's Den, Inc., No. 04-CH-26 (Ill. 4th Jud. Cir. June 10, 2005)
http://www.alliancealert.org/2005/20050614.pdf

An Illinois statute limiting location of sexually oriented businesses is constitutional. In determining whether alternative avenues of location were available to sexually oriented businesses the court refused to restrict its inquiry to a particular township and looked to all avenues available within the county.

Illinois passed a statute prohibiting “adult entertainment” facilities from locating within 1,000 feet of certain designated uses. An “adult entertainment facility” is defined in part as bookstores “whose primary business is the commercial . . . distribution of sexually explicit materials.” Lion’s Den is located within 1,000 feet of a designated use in the Village of Montrose. The Village’s zoning ordinance did not provide a zoning district for sexually oriented business and such businesses would need to seek a special use permit or amendment to the ordinance. There is no evidence that Lion’s Den ever sought either.

The state filed suit against Lion’s Den seeking to enjoin its operation in a prohibited location. Lion’s Den counterclaimed alleging violations of the First and Fourteenth Amendments. The statute does not contain a preamble setting forth its purpose. A brief legislative history indicates that the purpose of the statute is to establish a set back requirement to protect certain types of property from the close proximity of sexually oriented businesses.

The parties disagreed as to how the statutory phrase “sexually explicit" material should be construed and significant evidence was offered which focused on floor space, inventory, and revenue. Lion’s Den attempted to argue that sexually explicit material should be limited to those that include the sex act. The court rejected this view and held that “sexually explicit includes displays of sexual organs. Looking at a variety of factors and the evidence before it the court concluded that Lion’s Den's primary business is distribution of “sexually explicit materials.” Thus, the court concluded it is subject to the statutory definition.

Zoning regulations which restrict the time, place, and manner of adult entertainment businesses have been treated as content-neutral regulations subject only to intermediate scrutiny. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); City of Los Angeles v. Alameda Books, Inc. 535 U.S. 425 (2002). Such regulations are upheld if they 1) serve a substantial governmental interested unrelated to the suppression of speech, namely decreasing negative secondary effects of adult entertainment facilities; 2) are not substantially broader than necessary to promote that interest; and 3) leave open alternative avenues of communication. Applying this test the court upheld the state statute.

The court acknowledged that the ”government may rely upon any evidence ‘reasonably believed to be relevant when defending legislation on a secondary effects basis, including non-technical and anecdotal evidence." Citing Renton, Alameda, World Wide Video of Washington, Inc. v. City of Spokane, 365 F.3d 1186 (9th Cir. 2004). In litigation, the government need not disprove a challenges to theories of secondary effects, but rather the challenger must address the governmental rationale to cast direct doubt on it. See, Alameda. In this case, the government presented significant evidence which demonstrated its substantial interest and Lion’s Den failed to cast doubt on it.

The court then turned to the second prong of the Renton test finding that the statute is narrowly tailored. Under controlling precedent, a time, place or manner regulation is narrowly tailored as long as it promotes a substantial government interest that would be achieved less effectively absent the regulation. Citing Ward v. Rock Against Racism, 491 U.S. 781, 799-800 (1989). “The cases have emphasized that if '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.'” Citing Ward; Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir. 2002). The court concludes its analysis by noting that the Illinois statute in this case was nearly identical to the statute upheld in Renton.

Finally, the court addressed whether or not the statute left open alternative avenues of communication. Lion’s Den argued that no other space is available in the Village of Montrose for sexually oriented businesses. The court responded, “[t]he case law does not support the argument that every community no matter how small, must have an adult entertainment zone.” Citing Township of Saddle Brook v. A.B. Family Center, Inc., 722 A.2d 530 (N.J. 1999). It then examined the surrounding area and the nature of the market and concluded that it was appropriate to consider the availability of space within the entire county rather than merely the Village of Montrose. On this basis, the court found that there were adequate alternative avenues of communication to satisfy the Renton standard.

[ Back to Top ]

Fantasyland Video, Inc. v. County of San Diego, 2005 WL 1429810 (S.D.Cal. Jun 14, 2005) (NO. CIV. 02CV1909-LABRBB, CIV. 02CV2023-LABRBB)

County’s sexually oriented business zoning and license ordinance is upheld in the face of numerous alleged constitutional violations and the county’s evidence in support of the ordinance need not be targeted to specific kinds of adult activities.

Plaintiffs (hereinafter Déjà Vu) sell sexually explicit books, magazines, and novelties at its business location in San Diego County. Daja Vu also wants to offer live nude dancing at the same location. After the county amended its ordinance regulating sexually oriented business, Déjà Vu filed suit challenging the ordinance on numerous grounds. The parties agreed that the appropriate legal standard to determine the constitutionality of content neutral regulations of sexually oriented businesses is set forth in City of Renton v. Playtime Theatres, 475 U.S. 41 (1986). Under Renton, content-neutral time, place, and manner restrictions are constitutional under intermediate scrutiny if they 1) serve a substantial governmental interested unrelated to the suppression of speech, namely decreasing negative secondary effects of adult entertainment facilities; 2) are not substantially broader than necessary to promote that interest; and 3) leave open alternative avenues of communication. Applying this test the court upheld the ordinance.

Déjà Vu, however, argued that the government’s burden of proof is no longer entitled to Renton’s “extreme deference” in light of the Supreme Court’s more recent ruling in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 434 (2002). The district court ruled that Alameda has not altered the Renton standard. However, it did add a shifting burden of proof standard:

The [government’s] evidence must fairly support the [government’s] rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the [government’s] evidence does not support its rationale or by furnishing evidence that disputes the [government’s] evidence does not supports its rationale or by furnishing evidence that dispute the [government’s] factually findings, the [government] meets the standard set forth in Renton. If plaintiff’s succeed in casting doubt on a [government’s] rationale in either manner, the burden shifts back to the [government] to supplement the record with evidence renewing support for a theory that justifies its ordinance.

“Very little evidence is required” for the government to meets its burden. Op. at 6 citing Alameda Books, 535 U.S. at 451. “[T]he Plaintiff’s burden to cast doubt on the government’s rationale is very high.” World Wide Video, 368 F.3d 1186, 1996-96 (9th Cir. 2004). With these standards articulated, the court then turned to each of Déjà Vu’s claims.

Hours-of-Operation

First, Deja Vu challenged hours-of-operation restrictions under the ordinance which prohibit operation between the hours of 2 a.m. and 6 a.m., unless the entity is an adult hotel/motel. Déjà Vu challenged whether theses provisions address a substantial government interest and whether they leave open reasonable alternative avenues of communication. It argued that the county’s evidence, although meeting the initial burden of production, was insufficient to counter evidence showing no connection between the provision and the amelioration of secondary effects. “Plaintiffs bear a heavy burden of effectively rebutting more than just some of the categories of permissible evidence relied upon by the County . . . so long as some evidence remains upon which the County reasonably relied, plaintiffs fail to cast direct doubt.” Op. at 10 The court ruled as a matter of law that Déjà Vu had not met this high burden as a matter of law. The court also rejected Déjà Vu’s challenge under the California constitution noting that recent California precedent applies federal standards.

Interior Configuration

Déjà Vu’s business contains peep show booths. The amended ordinance prohibits any “door, curtain, or obstruction of any kind [to] be installed within the entrance to a peep show booth." Déjà Vu argued that this requirement chilled speech and that the county lacked evidence to support this prohibition. The court rejected these contentions citing numerous cases which had upheld similar requirements and noting: “[t]he uncontradicted evidence in this case shows the open-booth requirement is aimed at reducing unlawful sexual activities and in preventing the resulting spread of sexually transmitted diseases.” Op at 17.

Nudity, Staging, Tipping, and Touching Restrictions

The amended ordinance provides: "[i]t shall be a violation of this chapter for a patron, employee or any other person in adult entertainment establishment, to knowingly or intentionally appear in a state of nudity regardless of whether such public nudity is expressive in nature.” Op. at 17. The ordinance further defined nudity as “showing of the human male or female genitals, pubic area, vulva, penis, anal cleft or cleavage with less than a fully opaque covering or showing the female breast with less than a fully opaque covering of any part of the nipple.” Op. at 20. Deja Vu argued that this violated the First Amendment, because nothing in the legislative record directly targeted the adverse effects of nudity. It offered no evidence in support of its claim. Citing Alameda, the court wrote: “No precedent requires the [government] to obtain research targeting the exact activity that it wishes to regulate: the [government] is only required to rely on evidence ‘reasonably believed to be relevant to the problem being addressed.” Op. at 18.

Déjà Vu also argued that the provision was not narrowly tailored because “pasties and a G-string is the maximum amount of clothing a government can require exotic dancers to wear without running afoul of the federal right to freedom of expression.” Nude dancing is “expressive conduct within the outer perimeters of the First Amendment.” Barnes v. Glen Theatres, Inc., 501 U.S. 560 (1991). The court noted that the U.S. Supreme Court test set forth in United States v. O’Brien, 391 U.S. 367 (1968) governs and its factors are virtually identical to the Renton factors. Ruling against Deja Vu, it observed that the U.S. Court of Appeals for the Ninth Circuit upheld a similar, but stricter ordinance, in Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee County, 337 FG.3d 1251 (11th Cir. 2003). The district court also rejected a California based claim on grounds that the California Supreme Court has held that California speech protections track federal caselaw.

The amended ordinance also requires semi-nude entertainers to perform “at least six (6) feet from the nearest area occupied by patrons and on a stage elevated at least eighteen (18) inches from the floor.” Déjà Vu’s challenge to this provision was similar to its challenge to the nudity ban. Citing significant federal precedent upholding these kinds of provisions, the court rejected Déjà Vu’s arguments.

The district court further upheld provisions in the ordinance that prohibit direct tipping and touching of any employee in a state of semi-nudity.

Zoning Restrictions

The amended ordinance provided that sexually oriented businesses must relocate from commercial to industrial zones and it allowed a three year amortization period. Déjà Vu challenged this. The court analyzed the relocation requirement using the Renton factors. It particularly focused on whether reasonable alternative locations existed to satisfy Renton’s last prong. The key question here is whether a reasonable number of alternative sites are available in the new zone for Déjà Vu to relocate. The evidence was disputed and discussed at great length in the opinion. Evidence tended to show that approximately 68 sites were available for relocation within the county. In its analysis, the court considered the following:

Data regarding the number of sites available fo adult use is meaningless without a contextual basis for determine whether that number is sufficient for that particular locale . . . Supply and demand, therefore, should be only one of several factors that a court considers when determining whether an adult business has a reasonably opportunity to open and operate in a particular city . . . 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. Op. at 43.

Considering all these factors, the court determined that Déjà Vu had reasonable relocation options. The court also rejected Deja’s Vu’s claims that the county had engaged in spot zoning.

Administrative Permit

The ordinance, as amended, requires an administrative permit to establish, operate, enlarge, or transfer ownership or control of an adult entertainment establishment. The permit must be granted if the business location meets the distance and separation requirements of the amendment ordinance. Deja Vu claimed that the process for obtaining such permits fails to provide for a timely decision on an application and precludes prompt access to the courts. Citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); City of Littleton v. Z.J. Gifts, D-4 L.L.C., 541 U.S. 774 (2004). There was some factual dispute as to the periods of time allowed under the ordinance for licensing decisions. The County maintained that it had 70 days to make a decision plus sixty days to consider an appeal for a total of 130 days.

In relevant part, FW/PBS provides: “A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech . . Two essential procedural safeguards are required for a valid licensing scheme. First, the licensor must make the decision within a specified and reasonable time period during which the status quo is maintained . . . Second there must be the possibility of prompt judicial review in the event that the license is erroneously denied.” Op. at 45.

Assuming these were the correct numbers, the district court ruled that the ordinance failed to satisfy constitutional standards. It held that the time frame was unreasonable given the fact that the county could quickly determine whether a particular location complied or not.

Employer/Employee Licensing Requirements

Déjà Vu challenged provisions in the ordinance requiring employer and employee licensing. First, it contended that the requirements are unduly burdensome, because each corporate officer, director, general partner or other person directly participating in management or control of the business must personally appear to file the establishment license application and, if applicable, an employee license application. The court acknowledged that the Ninth Circuit had not yet addressed the issue. Noting that licensing requirements are presumptively unconstitutional prior restraints and the county offered no evidence to show that these requirements furthered its governmental interest, the district court held that the provision is unconstitutional.

Déjà Vu also arged that the employee license requirement is not narrowly tailored, because it “indiscriminately” requires every employee to be licensed. The district court rejected this argument, holding that the terms of the ordinance only applied to employees performing services on the premises.

Employee registration, finger printing, and photograph requirements were upheld along with disclosure requirements of: full true name; current business/mailing address; proof of age; name of the place of the employment; name of statutory agent; address of adult establishment; and criminal background information.

The district court declined to reach the issue of whether licensing information is available to the public under California law, but it did hold that the county had established sufficient procedural safeguards under FW/PBS where it provided for automatic issuance of a provisional licenses to maintain the status quo during the pendency of the application process.

[ Back to Top ]