IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO
EMPRESS ADULT VIDEO AND ) BOOKSTORE, an Arizona corpor ation; ) OSCO COMMUNICATIONS GROUP, ) INC. , an Ar izona corporation, ) ) Plaintiffs/Appellants, ) 2 CA-CV 2000-0079 ) DEPARTMENT B v. ) ) OPINION CITY OF TUCSON, a municipal ) corporation, ) ) Defendant/Appellee, ) ) and ) ) STATE OF ARIZONA, ) ) Intervenor/Appellee. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. 336804
Honorable Nanette M. War ner, Judge
AFFIRMED IN PART AND REVERSED IN PART Meehan & Associates By Michael J. Meehan Tucson Attorneys for Plaintiffs/ Appellants
Thomas J. Berning, Tucson City Attorney By David L. Deibel Tucson Attorneys for Defendant/Appellee
Janet Napolitano, Arizona Attorney General By H. Leslie Hall and Thomas J. Dennis Phoenix Attorneys for Intervenor/Appellee
D R U K E, Presiding Judge.
¶1 Appellants Empress Adult Video and Bookstore and Osco Communications Group
(collectively, Empress) operate an adult-oriented business that principally sells and rents
nonobscene, sexually explicit materials and predominantly features nonobscene, sexually explicit
live performances. 1 As a result, A.R. S. § 13-1422, in conjunction with A.R. S. § 11-821, requires
Empress to close between 1:00 a. m. and 8: 00 a.m. from Monday through Saturday and between
1:00 a.m. and 12:00 noon on Sunday; failure to do so constitutes a class one misdemeanor. 2
Empress sought an injunction against the enforcement of § 13-1422 and a declaratory judgment
1 Appellees make no claim the materials or performances are obscene. 2 Section 13-1422, A. R.S. , applies to adult arcades, adult bookstores or video stores, adult cabarets, adult motion picture theaters, and adult theaters as well as escort agencies and nude model studios. Because Empress does not operate an escort agency or nude model studio and does not serve alcoholic beverages, the provisions of § 13-1422 that apply to such activities are not at issue here. Section 11-821, A.R.S., is part of the county planning and zoning statutes and allows for “the r egulation and use of business licenses, adult oriented business manager permits and adult service provider per mits in conjunction with the establishment or operation of adult oriented businesses and facilities.” § 11-821(B)(5). Section 11-821(H) also provides definitions for various types of adult oriented businesses, mater ials, and live performances covered by § 13-1422.
2 that the statute violates article II, §§ 6 and 13 of the Ar izona Constitution. 3 The trial court found
that § 13-1422 does not violate our state constitution and denied injunctive relief. This appeal by
Empress followed. We have jurisdiction pursuant to A. R.S. § 12-2101.
¶2 We apply a de novo standard of review in determining a statute’s constitutionality.
State v. Korzuch, 186 Ar iz. 190, 920 P.2d 312 (1996); State v. Evenson, 201 Ariz. 209, 33 P.3d
780 (App. 2001). Because we presume a statute is constitutional, New Times, Inc. v. Arizona
Board of Regents, 110 Ar iz. 367, 519 P.2d 169 (1974), the bur den of overcoming this
presumption rests on the party challenging the statute. Kotterman v. Killian, 193 Ariz. 273, 972
P.2d 606 (1999). “ [A]nd we resolve all uncertainties in favor of constitutionality. ” Id. at ¶31.
But, when constitutional rights are at issue, “we avoid, where possible, attempts to erode [those]
rights by balancing them against regulations serving governmental interests. ” Mountain States
Tel. & Tel. Co. v. Arizona Corp. Comm’n, 160 Ar iz. 350, 357, 773 P.2d 455, 462 (1989).
Article II, § 6
¶3 Article II, § 6 of Arizona’s Constitution provides that “[e]very person may freely
speak, write, and publish on all subjects, being responsible for the abuse of that right. ” Our
supreme court has recognized that the scope of this provision is generally gr eater than that of the
First Amendment to the United States Constitution. “Indeed, this court has previously given
art. 2, § 6 gr eater scope than the first amendment.” Mountain States, 160 Ariz. at 354, 773 P.2d
at 459; see also Phoenix Newspapers, Inc. v. Superior Court, 101 Ar iz. 257, 259, 418 P.2d 594,
3 The original complaint Empress filed also claimed that § 13-1422 violated the United States Constitution. But Empress did not include that claim in its amended complaint and, on appeal, states that its “challenge to this statute is predicated solely on the Arizona Constitution.”
3 596 (1966) (“The r ight of every person [in Arizona] to freely speak, wr ite and publish may not
be limited but such a person may be held accountable for an abuse of that right.” ); Martin v.
Reinstein, 195 Ariz. 293, 987 P.2d 779 (App. 1999) (acknowledging that, in some circumstances,
our constitution provides greater protection to speech than federal constitution).
¶4 Relying primarily on Mountain States, Empress contends the greater scope of
article II, § 6 protects the nonobscene, sexually explicit materials and live performances
encompassed by § 13-1422 and § 11-821. Empress points out that, in Mountain States, the
supreme court opted for “a more literal application” of article II, § 6. 160 Ariz. at 357, 773 P.2d
at 462. Appellees counter that Mountain States also included the caveat that it did not “deal with
the problems from sexually explicit messages. ” 160 Ariz. at 352 n.4, 773 P.2d at 457 n.4. And,
although appellees concede that article II, § 6 does provide speech “ a greater degr ee of protection
in some instances than does the First Amendment,” they contend Arizona’s courts have often held
that article II, § 6 provides the same protection. In support, they cite Yetman v. English, 168
Ariz. 71, 811 P.2d 323 (1991); Reinstein; Bird v. State, 184 Ariz. 198, 908 P.2d 12 (App. 1995);
In re Maricopa County Juvenile Action No. JT9065297, 181 Ar iz. 69, 887 P.2d 599 (App. 1994);
Berry v. Foster, 180 Ar iz. 233, 883 P.2d 470 (App. 1994); and Fiesta Mall Venture v. Mecham
Recall Committee, 159 Ar iz. 371, 767 P.2d 719 (App. 1988). These cases are not controlling,
however, because they did not involve, as her e, nonobscene, sexually explicit materials or live
performances. 4 Accordingly, we first determine whether article II, § 6 protects such materials or
4 Yetman addressed defamatory speech; Reinstein concerned physician-patient communications; Bird pertained to an election wager; Maricopa County No. JT9065297 involved a curfew ordinance that restricted a minor’s freedom of movement; Berry dealt with an injunction that did not implicate article II, § 6; and Fiesta Mall discussed political activities on private
4 live performances. 5 The following principles of constitutional construction guide our
determination.
¶5 The cardinal rule of constitutional construction dir ects us to “follow the text and
the intent of the framers, where it can be ascertained. ” Fain Land & Cattle Co. v. Hassell, 163
Ariz. 587, 595, 790 P.2d 242, 250 (1990); see also County of Apache v. Southwest Lumber Mills,
Inc., 92 Ariz. 323, 376 P.2d 854 (1962) (governing principle of constitutional construction is to
give effect to framers’ intent and purpose); S. A. v. Superior Court, 171 Ar iz. 529, 530, 831 P.2d
1297, 1298 (App. 1992) (established rule of construction requires court “ to follow the
constitution’s text and the framers’ intent, if it can be determined”). And, unless the constitution
otherwise defines them, we give the words of a constitutional provision their “ natural, obvious
and ordinary meaning. ” Southwest Lumber, 92 Ar iz. at 327, 376 P.2d at 856; see also McElhaney
Cattle Co. v. Smith, 132 Ar iz. 286, 290, 645 P.2d 801, 805 (1982) (“ When the words of a
constitutional provision are not defined within it, the meaning to be ascribed to the words is that
which is generally understood and used by the people. ”). We may also consider the provision’s
history when attempting to determine the framers’ intent. Boswell v. Phoenix Newspapers, Inc. ,
property. 5 Section 11-821(H)(2) defines adult books, magazines, periodicals, photographs, films, motion pictures, videocassettes, and slides as those “that depict or describe specific sexual activities or specific anatomical areas.” Similarly, § 11-821(H)(3) defines an adult live entertainment as that which “features” either “ [p]ersons who appear in a state of nudity” or “ [l]ive performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.” In this context, “ feature” means “a mar ked element of something: something that is esp. pr ominent.” Webster’s Third New International Dictionary 832 (1971).
5 152 Ariz. 9, 730 P.2d 186 (1986) (when necessar y, cour t examines history of constitutional
provision to determine framers’ intent).
¶6 Applying the above principles to article II, § 6, we fir st note that it secures the right
of every person in Ar izona to “fr eely speak, wr ite, and publish on all subjects.” This language
neither expressly nor implicitly excludes the subject of sex. Indeed, the ordinary meaning of the
word “all” indicates otherwise. In this context, the word means “each and ever y one of” or
“ever y.” Webster’s Third New International Dictionary 54 (1971). Based on the plain language
of article II, § 6, then, every person in Arizona has the right to speak, write, and publish freely
on every subject, from anarchy to zoology. As the supreme court observed in Phoenix
Newspapers, the words of article II, § 6 “ar e too plain for equivocation. ” 101 Ariz. at 259, 418
P.2d at 596.
¶7 Moreover, the available history of article II, § 6 does not suggest the framers
intended to limit the type of subjects that one can address. According to one legal scholar, those
attending the 1910 constitutional convention “borr owed liberally from the Constitution of the State
of Washington in framing the Declaration of Rights that now appears in article II.” John D.
Leshy, The Making of the Arizona Constitution, 20 Ar iz. St. L.J. 1, 82 (1988). The free speech
provisions in both constitutions contain identical language and, of article I, § 5 of the Washington
Constitution, it has been said that it “often will support a br oader protection for free speech. ”
State v. Reece, 757 P.2d 947, 955 (Wash. 1988). Our resear ch also discloses that some forty
other state constitutions contain provisions with language substantially similar to article II, § 6 of
6 our state constitution. 6 For instance, article I, § 2 of the California Constitution contains almost
identical language and is considered more “ definitive and inclusive than the First Amendment. ”
Wilson v. Superior Court, 532 P.2d 116, 120 (Cal. 1975). Likewise, “ [t]he protection afforded
by the guarantees of free press and speech in [article I, § 8 of] the New York Constitution is often
broader than the minimum required by the First Amendment.” O’Neill v. Oakgrove Constr. Inc.,
523 N.E.2d 277 n.3 (N. Y. 1988). Also, similar language in article I, § 8 of the Texas
Constitution has been held “to ensure broad liberty of speech, ” Davenport v. Garcia, 834 S. W.2d
4, 8 (Tex. 1992), and to “ clothe[] the citizen with liberty to speak, wr ite, or publish his opinion
on any and all subjects.” Ex parte Neill, 22 S. W. 923, 924 (Tex. Crim. App. 1893).
Additionally, the Oregon Supreme Court has said that the free speech provision of its constitution
has greater br eadth than the First Amendment and covers “ver bal and nonverbal expressions
contained in films, pictures, paintings, sculpture and the like” on “ ‘any subject whatever. ’” State
v. Henry, 732 P.2d 9, 11 (Or. 1987), quoting article I, § 8 of the Oregon Constitution. And, in
Lindsay & Co. v. Montana Fed’n of Labor, 96 P. 127, 131 (Mont. 1908), the cour t reached this
conclusion about article III, § 10 of the Montana Constitution: “ That the individual citizen of
Montana cannot be prevented from speaking, writing, or publishing whatever he will on any
subject.” We are of the same opinion on our own article II, § 6; it protects the right of each
person in this state to speak, wr ite, or publish on all manner of subjects, including sex, and to do
so freely.
6 See Ex parte Tucci, 859 S. W.2d 1 (Tex. 1993).
7 ¶8 Although this right may be exercised freely, article II, § 6 itself makes each
individual “r esponsible for the abuse of that right. ” Accor dingly, a per son may be answerable
for defamatory statements, see Yetman; perjury, see A.R. S. § 13-2702 and Franzi v. Superior
Court, 139 Ariz. 556, 679 P.2d 1043 (1984); uttering “fighting words, ” see State v. Brahy, 22
Ariz. App. 524, 529 P.2d 236 (1974); offering or conspiring to commit an act of prostitution, see
Files v. Bernal, 200 Ariz. 64, 22 P.3d 57 (App. 2001); bribery, see A.R. S. §§ 13-2602 and 13-
2605; or commercially publishing an obscene book, magazine, photograph, or motion picture.
See A.R. S. §§ 13-3501 and 13-3502; State ex rel. Collins v. Superior Court, 163 Ar iz. 246, 787
P.2d 1042 (1986).
¶9 Additionally, Mountain States makes clear that the protection afforded by article
II, § 6 does not foreclose limited governmental regulation. There, the supreme court recognized
that a governmental department or agency can “impose content-neutral, reasonable time, place,
and manner regulations that tangentially affect speech.” 160 Ariz. at 358, 773 P.2d at 463. But
such regulations, said the court, “must regulate with narrow specificity so as to affect as little as
possible the ability of the sender and receiver to communicate.” Id.; see also New Times, 110
Ariz. at 371, 519 P.2d at 173 (restrictions on First Amendment rights “ must be drawn with
narrow specificity” ).
¶10 Empress asserts that § 13-1422 is unconstitutional under article II, § 6 because the
statute fails to satisfy this narrow specificity standard. Empress contends the legislature “ could
have drafted restr ictions that more directly address the alleged problems . . . caused by adult
entertainment businesses.” Appellees respond that we should determine the constitutionality of
§ 13-1422 under First Amendment principles, arguing that Arizona’s narrow specificity standard
8 is no different from the “nar rowly tailored” standard adopted by the Supreme Court. This
standard requires that “ a regulation of the time, place, or manner of protected speech must be
narrowly tailored to serve the government’s legitimate, content-neutral inter ests.” Ward v. Rock
Against Racism, 491 U.S. 781, 798, 109 S. Ct. 2746, 2757, 105 L. Ed. 2d 661, 680 (1989). The
regulation satisfies the federal standard if it “ ‘promotes a substantial government interest that
would be achieved less effectively absent the regulation.’” Id. at 799, 109 S. Ct. at 2758, 105
L. Ed. 2d at 680, quoting United States v. Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 2906,
86 L. Ed. 2d 536, 548 (1985). The regulation “ need not be the least restrictive or least intrusive
means of doing so,” however. Ward, 491 U.S. at 798, 109 S. Ct. at 2757-58, 105 L. Ed. 2d at
680. 7 We thus examine Mountain States to determine whether its narrow specificity requirement
imposes a different standard. But, because § 13-1422 regulates two different forms of protected
7 Based on the federal narr owly tailored standard, a number of federal appellate courts have concluded that hours-of-operation restrictions similar to § 13-1422 do not offend the First Amendment. See Dima Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999) (holding that ordinance restricting adult bookstore’s hours of operation survives First Amendment challenge); Richland Bookmart, Inc. v. Nichols, 137 F .3d 435 (6th Cir. 1998) (ruling that First Amendment not violated by statute limiting hours a business may sell adult books, magazines, and videotapes); Ben Rich Trading, Inc. v. City of Vineland, 126 F .3d 155 (3d Cir. 1997) (determining that ordinance regulating operating hours of establishments selling adult books and showing adult films constituted permissible time, place, and manner restriction on speech for purposes of First Amendment).
9 expression—nonobscene, sexually explicit materials, or “ adult speech,” 8 as well as nonobscene,
sexually explicit live performances, or “ expressive conduct” 9—we address the two separately.
Adult Speech
¶11 Mountain States involved so-called “ScoopLines” that provided sports, weather,
and other types of information, including “sexually explicit messages, ” through the telephone lines
of Mountain States Telephone and Telegraph Company. 160 Ariz. at 352, 773 P.2d at 457. As
a result of various problems and complaints about ScoopLine services, the Arizona Corpor ation
Commission ordered the telephone company “to implement universal blocking of all ScoopLines
and to propose a presubscription plan for the Commission’s approval. ” Id. at 353, 773 P. 2d at
458.
¶12 The telephone company sought special action relief in the supreme court, asserting,
inter alia, that the Commission’s presubscription order violated article II, § 6. In r esponse, the
Commission first argued that the order was a r easonable utility regulation that did not significantly
affect free speech. The court disagreed, holding that “any requirement of prior subscription, even
universal presubscription, adversely affects the right to speak and publish” guaranteed by
article II, § 6. 160 Ar iz. at 357, 773 P.2d at 462.
8 See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S. Ct. 1728, 152 L. Ed. 2d 670 (2002) (acknowledging that city ordinance regulating “ adult” bookstores selling books and videocassettes depicting sexual activities implicates First Amendment rights); Young v. American Mini Theatres, Inc. , 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976) (recognizing that nonobscene, sexually explicit “adult” motion pictures are protected by First Amendment). 9 See Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 566, 111 S. Ct. 2456, 2460, 115 L. Ed. 2d 504, 511 (1991) (descr ibing nude dancing as “expr essive conduct”).
10 ¶13 The Commission also argued that its order was an allowable time, place, and
manner regulation under the First Amendment. The supreme court rejected this argument as well,
declaring: “Even if we agreed with the Commission’s interpretation of the first amendment,
Arizona’s constitution does not permit the time, place, and manner regulation in question here.”
Id. As noted above, the court stated that, under article II, § 6, regulations affecting speech “must
regulate with narrow specificity so as to affect as little as possible the ability of the sender and
receiver to communicate.” 160 Ariz. at 358, 773 P.2d at 463 (emphasis added). From the
emphasized language, we conclude that the cour t adopted a different and more restrictive standard
for regulations affecting speech than the federal standar ds enunciated in Ward.
¶14 Our conclusion finds support in the supreme court’s application of this narrow
specificity standard to the regulation at issue in Mountain States. The court observed that,
although the Commission’s “presubscription requirement might be a more convenient and certain
method” of addressing the ScoopLine problems, the telephone company’s proposals for self-
imposed regulations illustrated other “plausible means” of doing so and thereby demonstrated
“that the Commission did not choose its regulation with narrow specificity. ” 160 Ar iz. at 358,
773 P.2d at 463. “ [G]overnmental convenience and certainty, ” said the cour t, “cannot pr evail
over constitutionally guaranteed rights.” Id.
¶15 We also find persuasive support for our conclusion in cases from Texas, New
York, and California, jurisdictions that, as already mentioned, have constitutional free speech
provisions similar to our own. See Faires v. Frohmiller, 49 Ar iz. 366, 372, 67 P.2d 470, 472
(1937) (decisions from states with constitutional provisions similar to our own “are very
persuasive”). Davenport, a Texas case, involved the imposition of a “gag order” similar to the
11 one in Phoenix Newspapers. Although the Texas order in Davenport involved counsel and the
Arizona order in Phoenix Newspapers involved the press, the trial judges in both cases had entered
orders prohibiting public comment or discussion about pending litigation. The supr eme courts in
both jurisdictions vacated the gag orders based on the free speech provisions of their r espective
constitutions. Our supreme court concluded that the order violated article II, § 6, stating that
“[t]here can be no censor appointed to whom the press must apply for prior permission to publish”
and citing California and Texas case law as support for that proposition. Phoenix Newspapers,
101 Ariz. at 259, 418 P.2d at 596. The Texas Supreme Court reached the same conclusion but
did so, in par t, because nothing in the gag order indicated that it was “ the least restrictive means
to prevent th[e] harm. ” Davenport, 834 S. W.2d at 10. The court noted that the order offer ed “no
explanation of why [the] harm could not be sufficiently cured by remedial action” such as
“sanction[ing counsel’s] conduct” and commented that “ ‘the argument of convenience can have
no weight as against those safeguards of the constitution.’” Id. at 11, quoting Ex parte
McCormick, 88 S. W.2d 104, 107 (Tex. Crim. App. 1935).
¶16 In the New York case of Time Square Books, Inc. v. City of Rochester, 645
N.Y.S. 2d 951 (N.Y. App. Div. 1996), a municipal ordinance requir ed adult businesses to have
open, rather than closed, booths for viewing nonobscene, sexually explicit motion pictures. The
municipality had adopted the ordinance to reduce the transmission of sexually related diseases,
having found that the patrons of such businesses had used closed booths for high-risk sexual
activity. On appeal, the cour t reversed the tr ial court’s refusal to issue a preliminar y injunction
to enjoin the ordinance’s enforcement, finding that the business owners had, based on “the broad
degree of protection afforded free expression” by the state’s constitution, “ made a prima facie
12 showing of their right to relief sufficient to warrant the issuance of a preliminary injunction. ” Id.
at 955. The court determined that the municipality had “failed to demonstrate that the open booth
requirement . . . [was] no broader than necessary to accomplish [its] objective of preventing . . .
sexually transmitted diseases.” Id. at 956. The court found that “[l]ess restrictive alternatives . . .
[were] available to serve th[e] objective” and that the municipality had “offered no evidence
suggesting that those less restrictive alternatives would be any less effective in meeting the[]
objective than opening the booths to public view.” Id.; see also People ex rel. Arcara v. Cloud
Books, Inc., 503 N.E.2d 492 (N.Y. 1986) (in seeking to close adult book store, state had burden
to show it had chosen course no broader than necessary to accomplish its purpose); cf. Town of
Islip v. Caviglia, 542 N.Y. S.2d 139 (N. Y. 1989) (state constitution’s free expr ession provision
not violated by zoning ordinance that addressed adult uses when ordinance did not operate as prior
restraint and adverse effects of such uses on neighboring properties not subject to direct attack
through injunction or criminal proceedings).
¶17 And, in the California case of People v. Glaze, 614 P.2d 291 (Cal. 1980), the court
struck down a municipal closing ordinance similar to the closing statute at issue here as violative
of the state constitution. 10 The municipal ordinance required arcades showing adult motion
pictures to close between the hours of 2:00 a. m. and 9: 00 a.m. and had been enacted to help
“pr event masturbation during those hours when law enforcement problems [were] greatest. ” Id.
10 Although Glaze refers gener ally to “F irst Amendment rights,” the court made clear that it was considering only “whether the challenged [ordinance] is consistent with the California Constitution” but, “ in keeping with convention, [referr ed to] the free speech rights at stake . . . as First Amendment rights.” 614 P.2d at 293 n.2. We have not adopted that convention in this decision.
13 at 295. In declaring the ordinance unconstitutional under article I, § 2 of the Califor nia
Constitution, the court held that the municipality had failed to meet its burden of showing “that
the closing-hours-requirement [was] necessary or that it [was] the least restrictive means available
to curb anticipated masturbation. ” Glaze, 614 P.2d at 296. The court pointed out that the
government could address the problem directly “by ar resting and prosecuting” the offenders, id.
at 295; by requiring that “a licensed manager be present to supervise the premises,” id. at 296;
or by prohibiting “an owner from knowingly allowing lewd conduct to occur.” Id. at 296 n. 6.
The court also rejected the municipality’s argument that the limited number of police available
during the early morning hour s made the closing-hours requirement necessary, observing that
governmental “‘convenience’” cannot “‘r estrict unnecessarily a lawful occupation,’” especially
when “F irst Amendment rights are involved.” Id. at 295-96, quoting Skaggs v. City of Oakland,
57 P.2d 478, 480 (Cal. 1936).
¶18 The trial court in this case found, based on the record befor e it, that the effects of
adult businesses included “increased crime and sexually oriented litter” as well as “the negative
effect on neighboring proper ty values.” The court also found that the primary pur pose of § 13-
1422 “is to regulate [those] negative secondary effects.” The court further found that the statute’s
closing-hours requirement met “the ‘narrow specificity’ requirement” of Mountain States.
¶19 Empress does not challenge the trial court’s first two findings, and the record
before us reasonably supports them. Instead, Empress argues that § 13-1422 is not drawn with
the requisite narr ow specificity, contending the legislature could have dr afted restrictions that
target the negative secondary effects more directly. We agree. The legislative history shows that
legislators considered testimony, letters, and surveys linking prostitution and other cr imes to adult
14 businesses, but that history is devoid of any evidence or consideration about less restrictive means
of dealing with those crimes, such as increased enforcement of existing criminal statutes that
prohibit loitering, A.R. S. § 13-2905; prostitution, A.R. S. §§ 13-3201 through 13-3214; and
criminal or public nuisances. A.R. S. §§ 13-2908 and 13-2917; see Glaze.
¶20 And, although legislative testimony showed increased sexually oriented litter
associated with adult businesses, litter contr ol cannot justify restrictions on freedom of expression.
In New Times, our supreme cour t held unconstitutional a university regulation that limited the
number of newsstands for distributing off-campus newspapers and imposed a fee for each
newsstand. The only reason the university advanced for the regulation was “to limit the amount
of litter resulting from the disposal of newspapers and to cover the additional cleanup costs
involved.” New Times, 110 Ar iz. at 372, 519 P.2d at 174. Relying on Schneider v. New Jersey,
308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939), and Martin v. City of Struthers, 319 U.S.
141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943), the court stated that “the problem of litter control is
not of sufficient importance to balance the risk of abridging First Amendment freedoms. . . . [The
university] clearly has the power to regulate the conduct of those who actually cause the litter
rather than the publishers of such newspapers. ” New Times, 110 Ariz. at 372, 519 P.2d at 174;
see also A.R. S. § 13-1603 (prohibiting littering).
¶21 The record befor e us thus demonstrates that the closing-hours requirement of § 13-
1422 provides a convenient, but not the least restrictive means, of curbing the negative effects of
adult speech. Rather, the requirement bans such speech for not less than seven hours a day and,
thus, during those hours, “ erects a direct barrier to communication.” Mountain States, 160 Ariz.
at 358, 773 P.2d at 463. We cannot say, therefore, that § 13-1422 affects adult speech “as little
15 as possible.” Mountain States, 160 Ar iz. at 358, 773 P.2d at 463. Accor dingly, although the
statute may not offend the First Amendment of the United States Constitution, we hold that § 13-
1422 fails to satisfy the narrow specificity requirement of Mountain States and, accordingly, as
to adult speech, violates article II, § 6 of the Arizona Constitution.
Expressive Conduct
¶22 Empress contends the protection of article II, § 6 also extends to such expressive
conduct as the nonobscene, sexually explicit live performances and nude dancing (collectively,
nude dancing) that § 13-1422 encompasses. Empr ess relies on State v. Western, 168 Ar iz. 169,
173, 812 P.2d 987, 991 (1991), in which our supreme cour t held that the First Amendment
protects “non-obscene dancing at locations that do not serve alcohol” ; see also State v. Jones, 177
Ariz. 94, 99, 865 P.2d 138, 143 (App. 1993) (“even nude dancing enjoys some protection” under
First Amendment); Wortham v. City of Tucson, 128 Ar iz. 137, 140, 624 P.2d 334, 337 (App.
1980) (nude or partially nude dancing “ may be protected by the First Amendment”). Empress
thus argues that “ the more stringent protections of the Arizona Constitution should also protect
such nonobscene nude dancing.” We have found no Arizona case holding that article II, § 6
affords greater pr otection to nude dancing than does the First Amendment and, therefore, as with
adult speech, we look for guidance to other state decisions construing similar constitutional
provisions. See Faires.
¶23 Because its constitution has an identical provision, we look first to the State of
Washington. See State v. Reinhold, 123 Ar iz. 50, 597 P.2d 532 (1979) (deference accorded
recent Washington cases interpreting identical provision of its state constitution); Solana Land Co.
v. Murphey, 69 Ar iz. 117, 210 P.2d 593 (1949) (opinions of Washington Supreme Court
16 peculiarly persuasive when our constitutional provision obviously copied from that state’s
constitution). In the case of Ino Ino, Inc. v. City of Bellevue, 937 P.2d 154 (Wash. 1997), the
court upheld the constitutionality of a city ordinance that regulated, in part, the operational hours
of adult cabarets featuring nude or sexually explicit dancing. The court determined that such
expressive conduct did not warrant “application of the more protective time, place, and manner
analysis developed under art. I, § 5 of the state constitution,” 937 P.2d at 166, because “ nude
dancing ‘clings to the edge of protected expression, ’” id. at 163, quoting JJR, Inc. v. City of
Seattle, 891 P.2d 720, 724 (Wash. 1995), and because “ art. I, § 5 mentions only the right to
speak, write and publish. ” 937 P.2d at 163. The court thus applied the federal standard
enunciated in United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968),
for determining the constitutionality of such expressive conduct as nude dancing. This standard
requires that a restriction on such conduct be “no greater than is essential to the furtherance of [an
important or substantial governmental interest]. ” Id. at 377, 88 S. Ct. at 1679, 20 L. Ed. 2d at
680. Based on this standard, the Washington court found the city ordinance constitutionally valid
because its “restrictions on First Amendment freedoms [were] no greater than essential to the
furtherance of the city’s interest.” Ino, 937 P.2d at 172.
¶24 The Colorado Supreme Cour t reached a similar result in 7250 Corp. v. Board of
County Commissioners, 799 P.2d 917 (Colo. 1990), which also involved an ordinance restr icting
live nude entertainment to certain hours of the day. There, as in Ino, the cour t applied O’Brien
to determine the ordinance’s constitutionality. After finding the restrictions were no “greater than
are essential” to further “ the governmental objective of preserving the character and quality of
residential neighborhoods, ” 7250 Corp., 799 P.2d at 926, the court held that the ordinance did
17 not “unconstitutionally abridge the First Amendment . . . or Article II, section 10 of the Colorado
Constitution.” 11 799 P.2d at 928.
¶25 Likewise, in Tily B., Inc. v. City of Newport Beach, 81 Cal. Rptr . 2d 6 (Ct. App.
1998), the court concluded that a city ordinance prohibiting total nudity in an adult-oriented
business was constitutional under both the California and United States Constitutions. Following
the Supreme Court’s lead in Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 111 S. Ct. 2456, 115
L. Ed. 2d 504 (1991), the California court applied O’Brien and found the ordinance “ content
neutral, since the city [sought] to combat the secondary effects of adult businesses, not suppress
expression. And, like the identical provision in Barnes, the ‘requirement that the dancers wear
at least pasties and G-strings is modest, and the bar e minimum necessary to achieve the [city’s]
purpose. ’” Tily, 81 Cal. Rptr . 2d at 17, quoting Barnes, 501 U.S. at 572, 111 S. Ct. at 2463, 115
L. Ed. 2d at 515.
¶26 To our knowledge, two other courts have applied O’Brien or Barnes to determine
whether restrictions on nude dancing violated their state constitutions. In Knudtson v. City of
Coates, 519 N.W. 2d 166, 169 (Minn. 1994), the court upheld an ordinance requiring “minimal
covering of sexually explicit body parts,” finding that this “curtailment of free expression [was]
nominal and incidental and insufficient to cancel the public welfare concerns of the community. ”
Similarly, the court in Junction 615, Inc. v. Ohio Liquor Control Commission, 732 N.E.2d 1025,
1031 (Ohio Ct. App. 1999), upheld a state r estriction on public nudity in liquor establishments,
11 The relevant part of ar ticle II, § 10 of the Colorado Constitution contains language similar to our article II, § 6, providing that “every person shall be free to speak, wr ite or publish whatever he will on any subject, being responsible for all abuse of that liberty. ”
18 observing that it “d[id] not restrict First Amendment rights any more than necessary” and that the
“free speech guarantees accorded by the Ohio Constitution are no broader than the First
Amendment.” 12
¶27 Courts other than those in Ino and Junction 615 have likewise equated their state
free speech provisions to the First Amendment when evaluating the constitutionality of restrictions
on nude dancing. The court did so in City of Daytona Beach v. Del Percio, 476 So. 2d 197 (Fla.
1985), when considering the constitutionality of a city ordinance prohibiting topless dancing in
barrooms. After “[a]ssuming that Florida’s constitutional protection of nude barroom dancing
[wa]s coextensive with the federal protections, ” the cour t concluded that the city’s findings, which
indicated “nude dancing . . . contribute[d] to criminal activities,” pr ovided “sufficient evidence
to support the [ordinance’s] incidental burden on speech.” Id. at 203-04. And, in the oft-cited
case of Bellanca v. New York State Liquor Authority, 429 N.E.2d 765, 768 (N.Y. 1981), the court
stated that, “ at the very least, the guarantee of freedom of expr ession set forth in our State
Constitution is of no lesser vitality than that set forth in the Federal Constitution.” But, unlike the
Daytona Beach court, the Bellanca court held that a complete ban on topless dancing in liquor
establishments was unconstitutional because there had been “no legislative findings” warranting
the conclusion that the “ban is sufficiently functionally related to the exercise of the State’s police
power.” Bellanca, 429 N.E.2d at 769. The court in City of Billings v. Laedeke, 805 P.2d 1348,
1352 (Mont. 1991), however , adopted the analysis in Daytona Beach and concluded its state
12 Cf. Harris v. Entertainment Sys., Inc. , 386 S. E.2d 140 (Ga. 1989) (deter mining that statute prohibiting nudity in barrooms also applied to other establishments and, thus, holding, apparently under O’Brien, that statute substantially infringed on other protected expression).
19 constitution provided no “greater state protection of nude and semi-nude dancing . . . than what
is afforded by the United States Constitution.” The court thus upheld a city ordinance prohibiting
nude dancing as “constitutionally sound under the Montana Constitution.” Billings, 805 P. 2d at
1352.
¶28 We have found but one jurisdiction that has decided its state constitution provides
greater protection to nude dancing than the First Amendment. In Commonwealth v. Sees, 373
N.E.2d 1151 (Mass. 1978), the court held that a city ordinance prohibiting such dancing in a
licensed liquor establishment was not facially unconstitutional under article 16 of the
Massachusetts Declaration of Rights but was unconstitutional as applied. 13 The court observed
that article 16 drew “no distinction between free speech in a bar and free speech on a stage” and
noted that the dancer in question had performed “ on a dance floor for the enter tainment of
patrons, ” had “not mingle[d] with other employees or with patrons,” and “ther e [was] no
contention that the performance was obscene.” Id. at 1155-56. Accordingly, the court concluded
that, “ [a]s applied to the defendant [dancer], the ordinance violate[d] art. 16.” Id. at 1156; see
also Cabaret Enters., Inc. v. Alcoholic Beverages Control Comm’n, 468 N.E.2d 612 (Mass. 1984)
(applying Sees).
¶29 Having considered the above cases and their rationale, we find more persuasive
those that have concluded, either expr essly or implicitly, that the free speech provisions of their
state constitutions give nude dancing equivalent but no greater protection than that afforded by the
First Amendment and, ther efore, reach the same conclusion about article II, § 6 of the Arizona
13 Article 16 simply states: “ The right of free speech shall not be abr idged.”
20 Constitution. As additional support for our conclusion, we note that, before the framers adopted
article II, § 6 at the 1910 constitutional convention, it was a misdemeanor for any person to
willfully and lewdly expose “his person or the private parts thereof, in any public place.” Rev.
Stat. Ariz. Terr. Penal Code § 283 (1901). Because the framers were presumably aware of
existing law, we may r easonably infer that they did not intend nude dancing to have the same
broad protection that they had expressly provided the other forms of expression enumerated in
article II, § 6. We also note that the territorial prohibition against public nudity, although
renumbered, remained unchanged after Arizona achieved statehood in 1912. Rev. Stat. Ariz.
Penal Code § 313 (1913).
¶30 Thus, as applied to such expressive conduct as nude dancing, we determine the
constitutionality of § 13-1422 under the Fir st Amendment, deeming its protections equivalent to
those provided under article II, § 6 of our state constitution. Under the First Amendment, a
governmental regulation of such expressive conduct is constitutional if the regulation
is within the constitutional power of the Government; if it furthers an important or substantial governmental inter est; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged Fir st 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, 20 L. Ed. 2d at 680. 14 Using this four-part test, the
Supreme Court has twice found nude dancing regulations constitutional. In the first case, Barnes,
14 Arizona’s courts have applied O’Brien in determining whether the First Amendment protects such forms of allegedly expressive conduct as wearing a peace officer ’s insignia, State v. McLamb, 188 Ar iz. 1, 932 P.2d 266 (App. 1996); wagering on elections, Bird v. State, 184 Ariz. 198, 908 P.2d 12 (App. 1995); and committing prostitution by performing a sex show with another person for compensation. State v. Taylor, 167 Ar iz. 429, 808 P.2d 314 (App. 1990).
21 an Indiana statute required that nightclub dancers wear “pasties” and “G-strings.” In upholding
the statute, the Cour t found that its enactment was “clear ly within the constitutional power of the
State,” 501 U.S. at 567, 111 S. Ct. at 2461, 115 L. Ed. 2d at 512; that the statute furthered “ a
substantial government interest in protecting order and morality, ” id. at 569, 111 S. Ct. at 2462,
115 L. Ed. 2d at 513; that this interest was “ unrelated to the suppression of free expression, ” id.
at 570, 111 S. Ct. at 2462, 115 L. Ed. 2d at 513; and that the statute’s clothing requirement was
narrowly tailored, being “ the bare minimum necessary to achieve the State’s purpose.” Id. at
572, 111 S. Ct. at 2463, 115 L. Ed. 2d at 515.
¶31 Some nine years later in City of Erie v. Pap’s A. M., 529 U.S. 277, 120 S. Ct.
1382, 146 L. Ed. 2d 265 (2000), the Court examined a city ordinance almost identical to the
Indiana statute and decided that the ordinance also satisfied O’Brien’s four-part test. In doing so,
the Court addressed the issue of whether the ordinance targeted a form of expression (nude
dancing) and was thus content based, r equiring a strict scrutiny standard, or banned only conduct
(nudity) and was thus content neutral, requiring O’Brien’s less stringent standard. Empr ess raises
the same issue here about § 13-1422, claiming the statute is content based and quoting, in support,
the following from Justice White’s dissent in Barnes: “It is only because nude dancing
performances may generate emotions and feelings of eroticism and sensuality among the spectators
that the State seeks to regulate such expressive activity. ” 501 U.S. at 592, 111 S. Ct. at 2474,
115 L. Ed. 2d at 528 (White, J. , dissenting). But, as it had in Barnes, the Court in Erie rejected
Justice White’s view, finding that the city council had adopted the regulation to reduce the
negative secondary effects associated with live nude entertainment and, thus, concluding that
“Erie’s asserted interest in combating . . . [those] effects . . . [wa]s unrelated to the suppression
22 of the erotic message conveyed by nude dancing.” 529 U.S. at 296, 120 S. Ct. at 1394, 146 L.
Ed. 2d at 282.
¶32 For the same reason, we likewise reject Empress’s claim that § 13-1422 is content
based. As noted above, the trial court found, and Empress does not dispute, that the legislature
enacted § 13-1422 primarily to address such negative secondary effects as increased crime,
sexually oriented litter, and declining property values. Hence, under Erie, the legislatur e’s
“interest in preventing [these] harmful secondary effects is not related to the suppression of
expression. ” 529 U.S. at 293, 120 S. Ct. at 1393, 146 L. Ed. 2d at 281. Empress asserts,
however, that the legislative record shows that some legislators had an improper moral motive for
enacting § 13-1422. Rejecting a similar claim in Erie, the Court stated, “[We] will not strike
down an otherwise constitutional statute on the basis of an alleged illicit motive.” 529 U.S. at
292, 120 S. Ct. at 1392, 146 L. Ed. 2d at 280. Accor dingly, as in Erie, we conclude that § 13-
1422 is content neutral as applied to nude dancing.
¶33 After concluding the Erie ordinance was content neutral, the Supreme Court
examined O’Brien’s three remaining factors for determining the ordinance’s constitutionality. In
determining it was constitutional, the Court found that the city’s “efforts to protect public health
and safety are clearly within [its] police powers, ” Erie, 529 U.S. at 296, 120 S. Ct. at 1395, 146
L. Ed. 2d at 283; that the ordinance furthered an important governmental interest of “combating
the harmful secondary effects associated with nude dancing,” id.; and that “ the restriction [wa]s
no greater than [wa]s essential to the further ance of the government interest. ” Id. at 301, 120 S.
Ct. at 1397, 146 L. Ed. 2d at 286.
23 ¶34 Similarly, upon examining the same three factors, we find that our legislature has
the power to enact laws protecting the public health and safety, that § 13-1422 furthers an
important governmental interest by addressing the negative secondary effects related to nude
dancing, and that the statute’s closing-hours requirement is no greater than necessary to further
the governmental interest; it need not be the least restrictive. See Ward. As appellees point out,
§ 13-1422 allows 5,980 hour s of nude dancing annually—seventeen hours daily from Monday
through Saturday and thirteen hours on Sunday. See Schultz v. City of Cumberland, 228 F. 3d 831
(7th Cir. 2000) (upholding a more restrictive ordinance requir ing nonalcoholic bars featuring nude
dancing to close from midnight to 10:00 a. m. Monday through Saturday and all day Sunday); cf.
Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1365 (11th Cir. 1999) (holding
constitutional ordinance that required adult establishments featuring nude dancing to close from
2:00 a.m. until noon each day, finding ordinance “narrowly tailored” and afforded “ reasonable
alternative avenues of expression . . . [because] adult businesses [could] stay open fourteen hours
a day, seven days a week”). Accordingly, we hold that, as applied to such expressive conduct as
nude dancing, § 13-1422 is constitutionally valid under the First Amendment and, thus, under
article II, § 6.
Article II, § 13
¶35 Empress also challenges the constitutionality of § 13-1422 under article II, § 13 of
the Arizona Constitution. Because we have already held that the statute’s application to adult
speech renders it constitutionally invalid under article II, § 6, we need not address whether that
application likewise renders § 13-1422 unconstitutional under article II, § 13. Consequently, we
24 address only whether the statute’s application to nude dancing violates article II, § 13, the equal
protection provision of our state constitution.
¶36 Article II, § 13 pr ovides that “[n]o law shall be enacted granting to any citizen,
class of citizens, or corporation other than municipal, privileges or immunities which, upon the
same terms, shall not equally belong to all citizens or corporations.” This state provision has the
same effect as the Equal Protection Clause of the Federal Constitution. Phoenix Newspapers, Inc.
v. Purcell, 187 Ariz. 74, 927 P.2d 340 (App. 1996). Relying on Elliott v. State, 29 Ar iz. 389,
242 P. 340 (1926), Empress contends § 13-1422 violates article II, § 13 because “adult oriented
business[es] are the only businesses barred from being open during evening and Sunday morning
hours, while all other businesses are allowed to be carr ied on freely. ” Empress misreads Elliott.
Although the court there struck down a so-called Sunday closing law that required certain
businesses to close on Sunday but allowed other similar businesses to remain open that day, the
court declared the law unconstitutional under article II, § 13 because it prohibited “the exercise
of certain particular occupations, legitimate and laudable in themselves, while allowing other
businesses, not reasonably to be distinguished from those prohibited, to be carried on fr eely.”
Elliott, 29 Ariz. at 395, 242 P. at 341-42. In other words, said the court, the law granted “special
privileges and immunities to certain classes of citizens of the state, while, without legal excuse,
denying them to others. ” Id. at 397, 242 P. at 342.
¶37 Here, however, few would disagree that establishments featuring nude dancing are
reasonably and readily distinguished from those that do not. But the fact that § 13-1422 treats
nude dancing establishments differently does not mean that it denies equal protection and violates
article II, § 13. See Arizona Downs v. Arizona Horsemen’s Found., 130 Ar iz. 550, 637 P.2d
25 1053 (1981) (not unconstitutional to treat different classes in varying ways); Reinstein (equal
protection provisions do not prohibit all classifications). Whether a statute denies equal protection
“depends on its character, the individuals affected, and the asserted government purpose.” Big
D Constr. Corp. v. Court of Appeals, 163 Ar iz. 560, 566, 789 P.2d 1061, 1067 (1990).
¶38 We usually apply one of two tests to evaluate a challenged statutory classification:
a strict scrutiny test if the statute affects a suspect class or limits a fundamental right and a rational
basis test if it does not. Id.; Kenyon v. Hammer, 142 Ar iz. 69, 688 P.2d 961 (1984); Eller Media
Co. v. City of Tucson, 198 Ariz. 127, 7 P.3d 136 (App. 2000). Empress does not assert that § 13-
1422 affects a suspect class, such as gender or r ace, and we disagree with Empress’s argument
that the statute limits a fundamental right. “ A ‘fundamental right’ has generally been defined as
a right ‘explicitly or implicitly guaranteed by the constitution.’” Kenyon, 142 Ar iz. at 83, 688
P.2d at 975, quoting San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 33, 93 S. Ct. 1278,
1297, 36 L. Ed. 2d 16, 43 (1973); see State v. Watson, 198 Ar iz. 48, 6 P.3d 752 (App. 2000)
(right “fundamental” if firmly rooted in country’s history and tradition). Although our state and
federal constitutions guarantee free expression, the Supreme Court has made clear that “ nude
dancing of the type at issue here is expressive conduct . . . that falls only within the outer ambit
of the First Amendment’s protection. ” Erie, 529 U.S. at 289, 120 S. Ct. at 1391, 146 L. Ed. 2d
at 278; see Barnes (nude dancing within outer perimeters of First Amendment, though marginally
so). Consequently, if a legislative regulation is content neutral, as we have already found § 13-
1422 to be, “then the r egulation need only satisfy the ‘less stringent’ standard from O’Brien for
evaluating restrictions on symbolic speech. ” Erie, 529 U.S. at 289, 120 S. Ct. at 1391, 146
26 L. Ed. 2d at 278. We thus apply the r ational basis test to evaluate the classification created by
§ 13-1422.
¶39 Under the rational basis test, a legislative enactment “must be rationally and
reasonably related to furthering some legitimate governmental interest. ” Big D, 163 Ar iz. at 566,
789 P.2d at 1067; see City of Tucson v. Wolfe, 185 Ariz. 563, 917 P.2d 706 (App. 1995)
(ordinance must serve important governmental objective). In other words, “[t]he guarantee of
equal protection is violated only if a classification rests on grounds wholly irrelevant to the
achievement of the state’s objective.” Eller, 198 Ar iz. 127, ¶9, 7 P.3d 136, ¶ 9. Moreover, the
party challenging the statute has the burden of establishing that it is arbitrary or irrational. See
Reinstein, 195 Ariz. 293, ¶ 52, 987 P.2d 779, ¶52 (party challenging constitutionality of statute
has burden of establishing that there is “no conceivable basis” for it); Purcell (same). Empr ess,
however, has neither argued nor established that here. Further more, as noted above, the
legislature enacted § 13-1422 to curb the negative secondary effects associated with nude dancing
establishments, and that, in our opinion, constitutes a legitimate purpose for the statute. See City
of Tucson v. Grezaffi, 200 Ar iz. 130, 23 P.3d 675 (App. 2001) (smoking ordinance reasonable,
legitimate means of safeguarding community’s health, safety, and welfare).
¶40 The rational basis test next requires that we “ determine if it is reasonable to believe
that the classification will promote that purpose.” Big D, 163 Ar iz. at 566, 789 P.2d at 1067; see
Eller (under rational basis test, law upheld if facts support conclusion that classification rationally
furthers legitimate state interest). Based on the recor d before us, we reasonably believe that the
closing-hours requirement of § 13-1422 will promote its stated purpose. “A per fect fit is not
required; a statute that has a rational basis will not be overturned ‘merely because it is not made
27 with “mathematical nicety, or because in practice it results in some inequality.” ’” Big D, 163
Ariz. at 566, 789 P.2d at 1067, quoting Bryant v. Continental Conveyor & Equip. Co. 156 Ariz.
193, 197, 751 P.2d 509, 513 (1988), quoting Uhlmann v. Wren, 97 Ariz. 366, 388, 401 P.2d 113,
128 (1965); see State v. Hammonds, 192 Ar iz. 528, ¶11, 968 P.2d 601, ¶ 11 (App. 1998)
(legislature not required to for ego measure “ simply because it may be somewhat imprecise”).
Accordingly, as applied to nude dancing, § 13-1422 does not violate ar ticle II, § 13 of the Arizona
Constitution.
Severance
¶41 Because we have declared § 13-1422 constitutionally invalid as applied to adult
speech but constitutionally valid as applied to nude dancing, we must determine whether the valid
portion can be severed from the invalid portion. “An entire statute need not be declared
unconstitutional if constitutional portions can be separated. ” Republic Inv. Fund I v. Town of
Surprise, 166 Ariz. 143, 151, 800 P.2d 1251, 1259 (1990); see State v. Prentiss, 163 Ariz. 81,
786 P.2d 932 (1989) (court should not declare entire statute unconstitutional if constitutional and
unconstitutional portions can be severed). “ The test for severability r equires ascertaining
legislative intent.” Republic, 166 Ar iz. at 151, 800 P.2d at 1259. But, “if there is no clear record
of legislative objective and intent, the most reliable evidence of that intent is the language of the
statute.” Prentiss, 163 Ar iz. at 86, 786 P.2d at 937.
¶42 The supreme court established the following test for severability in Selective Life
Insurance Co. v. Equitable Life Assurance Society, 101 Ar iz. 594, 599, 422 P.2d 710, 715 (1967):
[W]here the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid
28 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.
Applying this test to the adult establishments listed in § 13-1422, and utilizing the specific
definitions of those establishments in § 11-821, we find that the valid and invalid portions of § 13-
1422 are not so connected and interdependent that the valid portion cannot stand alone.
¶43 Section 13-1422 lists the following adult establishments at issue here: adult arcade,
adult bookstore or video store, adult motion picture theater, and adult theater. 15 But, as defined
in § 11-821(H)(9), only an adult theater features nude dancing, that is, “ persons who appear in
a state of nudity or who engage in live performances that are characterized by the exposur e of
specific anatomical areas or specific sexual activities.” By definition, none of the other
establishments features nude dancing. An adult bookstor e or video store sells or rents such items
as sexually explicit books, magazines, periodicals, photographs, films, motion pictures, and
videocassettes, § 11-821(H)(2), and an adult arcade or adult movie theater allows the viewing of
sexually explicit motion pictures, films, videocassettes, or images. § 11-821(H)(1) and (4). Thus,
if we strike adult arcade, adult bookstore or video store, and adult motion pictur e theater from
§ 13-1422, the invalid por tions pertaining to adult speech, we leave adult theater, the valid portion
pertaining to nude dancing. This neither strips meaning from the remainder of the statute nor
renders it logically incomplete. The invalid portions are, therefore, severable from the remainder
of § 13-1422, and the remaining valid portion remains in force.
15 Although § 13-1422 also lists adult cabaret, escort agency, and nude model studio, this decision has no application to such establishments. As stated in footnote two, Empress does not operate as an escort agency or nude model studio and, because Empr ess does not serve alcoholic beverages, it is not an adult cabaret, as defined in § 13-1422(D)(3).
29 Conclusion
¶44 For the foregoing reasons, we hold that the application of § 13-1422 to an adult
theater, as defined in § 11-821, does not violate article II, § 6 or § 13 of the Arizona Constitution.
We further hold, however, that the application of § 13-1422 to an adult arcade, adult bookstore
or video store, and adult motion picture theater, as they are defined in § 11-821, does violate
article II, § 6 of our constitution. The closing-hours requir ement of § 13-1422 is thus valid and
enforceable as applied to an adult theater and invalid and unenforceable as applied to an adult
arcade, adult bookstore or video store, and adult motion picture theater. Accordingly, as to the
valid, enforceable application of § 13-1422, we affirm the trial court’s granting of declaratory
judgment in favor of appellees and denying injunctive relief to Empress. But, as to the invalid,
unenforceable application of the statute, we reverse the trial court and direct that it enter
declaratory judgment and injunctive relief in favor of Empress.
_______________________________________ WILLIAM E. DRUKE, Pr esiding Judge
CONCURRING:
_______________________________________ JOSEPH W. HOWARD, Judge
E S P I N O S A, Chief Judge, dissenting in part, concur ring in part.
30 I respectfully dissent from the first portion of the opinion dealing with “adult
speech” because I find no error in the trial court’s determination that § 13-1422 comports with the
requirements of article II, § 6 of the Arizona Constitution and Mountain States, to the extent that
opinion may apply to the facts of this case. I concur in the r emainder of the opinion.
_______________________________________ PHILIP G. ESPINOSA, Chief Judge