Nightclubs Inc v. Cty Paducah

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 2, 2000
• Docket: 98-6581
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION 24 Nightclubs, Inc. v. City No. 98-6581 Pursuant to Sixth Circuit Rule 206 of Paducah, et al. ELECTRONIC CITATION: 2000 FED App. 0041P (6th Cir.) File Name: 00a0041p.06

plaintiff does not even allege that in the case at hand the avenues for prompt judicial review were somehow UNITED STATES COURT OF APPEALS inadequate. Access to the federal courts in this case was immediate, and a decision was rendered promptly (the FOR THE SIXTH CIRCUIT ordinance was enacted on August 11, 1998, and after a _________________ hearing on October 1, 1998, the District Court for the Western District of Kentucky entered a final order granting in part and ; denying in part plaintiff’s motion for a preliminary injunction  on October 29, 1998). In addition, the spirit of the Freedman NIGHTCLUBS, INC.,  test, that undue suppression of constitutionally protected Plaintiff-Appellant,  speech be avoided, is satisfied on these facts because, as the  District Court pointed out in this case, the plaintiff may be No. 98-6581 v.  granted a temporary restraining order or injunction under the >  Kentucky procedural rules after it initiates the judicial action. CITY OF PADUCAH, et al., Defendants-Appellees.  For these reasons, I believe that we should not invalidate on

1 its face the section of the City of Paducah ordinance which explicitly states that it allows prompt judicial review in any court of competent jurisdiction for its failure to provide prompt judicial review. Appeal from the United States District Court for the Western District of Kentucky at Paducah. No. 98-00241—Thomas B. Russell, District Judge. Argued: September 22, 1999 Decided and Filed: February 2, 2000 Before: MERRITT and CLAY, Circuit Judges; ALDRICH,* District Judge.

* The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by designation.

1 2 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 23 of Paducah, et al. of Paducah, et al.

_________________ must examine the swiftness of a state court’s procedures, regardless of the language in the ordinance itself, before COUNSEL deciding whether a prompt judicial determination on the merits of the action could potentially be reached. I do not ARGUED: Charlotte B. Scott, BRADLEY, BRYANT & believe that to be the intention of the Court in FW/PBS. KAUTZ, Paducah, Kentucky, for Appellant. David L. Kelly, DENTON & KEULER, Paducah, Kentucky, for Appellees. The broad language of FW/PBS holds only that “the ON BRIEF: Charlotte B. Scott, William E. Scent, possibility of prompt judicial review” or “an avenue for BRADLEY, BRYANT & KAUTZ, Paducah, Kentucky, for prompt judicial review” is required. See FW/PBS, 493 U.S. Appellant. David L. Kelly, DENTON & KEULER, Paducah, at 228-29. While some language in Justice Brennan’s Kentucky, for Appellees. concurring opinion indicating that a “prompt judicial determination” might be required has caused discussion ALDRICH, D. J., delivered the opinion of the court, in among the Circuit courts, several Circuits have agreed that which CLAY, J., joined. MERRITT, J. (pp. 19-24), delivered “prompt judicial review” only means access to prompt a separate dissenting opinion. judicial review. See, e.g., Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir. 1999); TK’s Video, Inc. _________________ v. Denton County, 24 F.3d 705 (5th Cir. 1994); Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc); Jews for OPINION Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319 (1st _________________ Cir. 1993). In addition, the Second Circuit has intimated that ALDRICH, District Judge. Plaintiff-Appellant Nightclubs, it would follow this line of reasoning. See, Beal v. Stern, 184 Inc. (“Nightclubs”) brought this action against the City of F.3d 117 (2d Cir. 1999) (noting, without deciding, that Paducah, Kentucky; the City Commission of the City of prompt access to judicial review in state courts would satisfy Paducah, Kentucky; Albert Jones, in his official capacity as the Freedman test). I do not believe the Court intended for a the Mayor of Paducah, Kentucky; and James Zumwalt, in his prompt judicial determination to be required in a situation official capacity as the City Manager of Paducah, Kentucky where the city has provided for the broadest type of judicial (collectively “the City” or “Paducah”). Pursuant to 42 U.S.C. review within its powers. To find otherwise is to invalidate § 1983, Nightclubs challenges the constitutionality of a broadly-worded city ordinances on the basis of the swiftness Paducah ordinance that provides for the licensing and or slowness of that particular state’s judicial procedures, a test regulation of sexually oriented businesses and their that could force Circuits to come to seemingly arbitrary and employees. The District Court denied Nightclubs’ motion for inconsistent decisions based on the various procedures of the a preliminary injunction in substantial part. Nightclubs different state court systems within their reach. For these appeals that denial, arguing that the ordinance’s licensing reasons, I do not believe FW/PBS requires the result the Court scheme amounts to an unlawful prior restraint in violation of reaches here. the First and Fourteenth Amendments to the United States Even if a prompt judicial determination is required, the Constitution. This Court has jurisdiction pursuant to 28 plaintiff in this case does not meet the burden of proving that U.S.C. § 1291 and § 1292(a)(1). Because the District Court it could not gain such a prompt judicial determination in some erred in not enjoining the licensing scheme, we REVERSE, court of competent jurisdiction over the matter. In fact, the VACATE, and REMAND. 22 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 3 of Paducah, et al. of Paducah, et al.

meaning of § 11-7(a), nor given it a sensible meaning that I. would uphold its validity. Nightclubs, Inc., doing business as “Regina’s House of * * * Dolls,” is a Kentucky corporation that owns and operates an adult entertainment business featuring performances by The Court’s opinion also erroneously concludes that the female dancers. The business has been operating City of Paducah ordinance fails to provide for “prompt continuously in Paducah, Kentucky since 1987. On August judicial review” as required by FW/PBS, Inc. v. City of Dallas 11, 1998, the City of Paducah enacted Ordinance No. 98-8- and our own Sixth Circuit precedent. 5925 (“the ordinance”), which is designed to regulate sexually oriented businesses. Regina’s House of Dolls qualifies as an Nightclubs, Inc. bears the burden of proving to the court “adult cabaret” under § 11-2(3) of the ordinance.1 that the ordinance does not provide an avenue for prompt judicial review. See FW/PBS, 493 U.S. at 229-30 (explicitly In addition to regulating the substantive operation of declining to shift the burden of proof to the government in sexually oriented businesses, the ordinance requires such licensing scheme cases). The plaintiff has failed to meet that businesses to obtain licenses from the City prior to operation. burden. Specifically, the plaintiff has failed to address the See Ord. § 11-6(a). The ordinance also requires individuals fact that this ordinance provides for prompt judicial review in who work as managers and entertainers in sexually oriented any court of competent jurisdiction, including federal courts. businesses to obtain employee licenses from the City. See id. The Court argues that the Kentucky procedures at issue Section 11-6 delineates the licensing application procedures. provide for even more potential delay than do the Tennessee See Ord. §§ 11-6(b)-(g). An applicant for a sexually oriented procedures this court found to require undue delay in East business license must submit various pieces of information to Brook Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. the City, including a complete set of fingerprints “on forms as 1995). But the ordinance in that case, unlike the ordinance prescribed by the Chief of Police,” his or her social security before us today, provided for appeal from an adverse decision number and/or tax identification number, and a description of by common law writ of certiorari to the state courts of “the nature of the activity or activities to be engaged in at the Tennessee. See id. at 225. Where judicial review is limited establishment.” Ord. § 11-6(e). The applicant must also in that manner, certainly a facial challenge that the limiting disclose certain details regarding any crime(s) that he or she language precludes “prompt judicial review” has more of a has been convicted of “relating to prostitution, solicitation, or chance of success. But how can an ordinance which allows sexual offenses” within the three years prior to the date of the judicial review “in any court of competent jurisdiction,” and application. Ord. § 11-6(e)(3). Section 11-6(e)(11) states that further urges that the matter be “promptly reviewed” by the courts be declared to be facially invalid for not providing an avenue for prompt judicial review? Certainly East Brooks 1 Books is distinguishable on that basis. The ordinance defines “adult cabaret” as “a night club, bar, restaurant, or similar commercial establishment which regularly features: The Court relies on FW/PBS for the proposition that (a) Persons who appear in a state of nudity or semi-nude; or (b) Live “prompt judicial review” requires more than access, without performance [sic] which are characterized by the exposure of ‘specified anatomical areas’ or by ‘specified sexual activities’; or (c) Films, motion interference, to the judicial system. Instead, the Court pictures, video cassettes, slides or other photographic reproductions which essentially argues that in each case before it a federal court are characterized by the depiction or description of ‘specified sexual activities’ or ‘specified anatomical areas’.” See Ord. § 11-2(3). 4 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 21 of Paducah, et al. of Paducah, et al.

the applicant must already possess a current “City business the face of the ordinance was “more than remedied by the license,” and that “the premises must be inspected and found city’s narrowing construction.” Id. to be in compliance with health, fire, zoning, plumbing and building codes of the City.” Ord. § 11-6(e)(11). Rock Against Racism is not the only example of the federal courts’ reluctance to strike an ordinance, even on a First Section 11-7(a) provides as follows: Amendment facial challenge, unless absolutely necessary. When the Supreme Court first announced its intention to Upon receipt of an application properly filed with the allow First Amendment facial challenges, it tempered that Director and upon payment of the non-refundable decision by noting that “we believe that the overbreadth of a application fee, the Director or his/her designee shall statute must not only be real, but substantial as well, judged immediately stamp the application as received and shall in relation to the statute’s plainly legitimate sweep.” immediately thereafter initiate an investigation of the Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). This application and the proposed sexually oriented business language in Broadrick was quoted by the Court when it held by all appropriate City departments and agencies. The that “there must be a realistic danger that the statute itself will City shall approve or deny the issuance of a license to an significantly compromise recognized First Amendment applicant within ten (10) business days after receipt of a protections of parties not before the Court for it to be facially completed sexually oriented business application. challenged on overbreadth grounds.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984) Ord. § 11-7(a). Thus, once an applicant submits a (finding that an ordinance could not be challenged facially “completed” business license application in accordance with when there was no proof that it would be applied any § 11-6, the City Manager must immediately instruct various2 differently to others than it had been applied to plaintiffs). City departments to conduct the appropriate investigations. There is no realistic danger that this ordinance will Section 11-7(a) further declares that the City “shall approve” compromise First Amendment rights of third parties when the the issuance of a sexually oriented business license “unless” enforcing organization, the City of Paducah, has agreed to the City determines that the application is deficient in one of interpret the statute in a way that comports with the First eight specified ways. Id. That is, Paducah will deny a Amendment. business license if the applicant is overdue on any payments to the City, has failed to provide requisite information on the When we analyze the mandatory language of the ordinance application, has failed to pay the license fee, or otherwise “has itself and take into account the City’s own interpretation of its failed to comply with any provision or requirement of this duties under the ordinance, I agree with the District Court that ordinance.” Id. A business license will also be denied if the there is no problem here with delay. Our Court has gone out premises to be used for the sexually oriented business is not of its way to give the ordinance an unreasonable in compliance with zoning requirements or with applicable interpretation. Instead of emasculating the ordinance in order to hold it invalid, it is our responsibility to give the law a “rational and sensible construction” that will uphold its 2 Although the ordinance continuously refers to “the Director” of the validity. American Tobacco Co. v. Patterson, 456 U.S. 63 City, the ordinance defines the Director as “the City Manager or his/her (1982). See SUTHERLAND, STATUTORY CONSTRUCTION designee.” As the City Manager is a defendant in this action, the Court §§ 45.11—45.12 (5th ed. 1992). Our Court has not will refer to this individual as “the City Manager” rather than “the interpreted the ordinance in accordance with the plain Director.” 20 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 5 of Paducah, et al. of Paducah, et al.

Court noted in FW/PBS, “[a]lthough facial challenges to health, fire, building, and plumbing codes. Id. Licenses are legislation are generally disfavored, they have been permitted to be renewed annually under these same procedures. See in the First Amendment context where the licensing scheme Ord. §§ 11-10(a)-(b). vests unbridled discretion in the decision maker and where the regulation is challenged as overbroad.” FW/PBS, Inc. v. City Sections 11-15 and 11-17 govern appeals from the denial, of Dallas, 493 U.S. 215, 223 (1990) (citing City Council of suspension, or revocation of licenses. Section 11-15 provides Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 and that an aggrieved applicant may appeal the denial of a license n.15 (1984)). to the Board of Commissioners (“the Board”) within ten days of receiving notice that his or her application was denied. See But that is not the end of the matter. It is the policy of the Ord. § 11-15(b). The Board must hold a hearing on the federal courts, even in the First Amendment context, to appeal within ten days of the filing of the notice of appeal. Id. consider any limiting constructions which the government The applicant may be represented by counsel, present places on its own regulations. Even if the ordinance were not evidence, and cross-examine witnesses at the hearing; the pluperfectly clear on its face that the City has only 10 days, City Manager has the burden to prove that denial of the the City has stated that its interpretation of the ordinance is license was appropriate. See Ord. § 11-15(c). The Board that the City has 10 days within which to complete the must render a decision in writing within five days of hearing inspections necessary for the issuance of a license--precisely the appeal. See Ord. § 11-15(d). If the Board chooses to the construction which Nightclubs, Inc. concedes completely remand the matter to the City Manager “for further review satisfies the definite and specific time limits requirement of and action,” the City Manager must complete further review FW/PBS. within ten days of the remand. Id. Section 11-15(e) states, “The applicant shall have the right to seek prompt judicial In a similar situation a few years ago, the Supreme Court review of the Board of Commissioners’ decision in any court was faced with a facial invalidity challenge on First of competent jurisdiction as provided by law. The action Amendment grounds in conjunction with a concession by the shall be promptly reviewed by the court.” Ord. § 11-15(e). government enforcement agency (in that case, the City of Section 11-17 prescribes almost identical appeal rights for a New York) that they would interpret the ordinance in a way license holder seeking an appeal of the suspension or which would cure the ordinance of its defects. The Court revocation of a license. See Ord. § 11-17(a)-(f). noted that “the city has interpreted the guideline in such a manner as to provide additional guidance to the officials Soon after the Paducah ordinance went into effect, charged with its enforcement.” Ward v. Rock Against Racism, Nightclubs filed this action, challenging the constitutionality 491 U.S. 781, 795 (1989). The Court then found that of the ordinance both on its face and as applied.3 After “[a]dministrative interpretation and implementation of a conducting a hearing on the plaintiff’s motion for a regulation are, of course, highly relevant to our analysis, for preliminary injunction, the District Court enjoined only those ‘[i]n evaluating a facial challenge to a state law, a federal sections of the ordinance pertaining to the high cost of court must . . . consider any limiting construction that a state licensing fees and the requirement that landowners submit court or enforcement agency has proffered.’” Id. at 795-96 (quoting Hoffman Estates v. The Flipside, Inc., 455 U.S. 489, 494 (1982)). Finally, the Court concluded that any defect on 3 Adult World, a store that sells books, magazines, and films, filed a companion case, but that case is not before us on appeal. 6 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 19 of Paducah, et al. of Paducah, et al.

notarized acknowledgments along with4 license applications. _________________ See Ord. §§ 11-6(e)(13), 11-9(a)-(d). The District Court declined to enjoin the remaining operational and licensing DISSENT provisions of the ordinance. Nightclubs appeals that denial _________________ with respect to the licensing scheme, arguing that on its face, the scheme is an unconstitutional prior restraint upon one’s MERRITT, Circuit Judge, dissenting. This appeal is a First freedom of expression. Amendment facial challenge to Paducah’s ordinance regulating the issuance of licenses for sexually-oriented II. businesses, including nude dancing night clubs like plaintiff’s. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) is In deciding whether to grant a preliminary injunction, a controlling. In that case, the Supreme Court set out two district court must consider and balance four factors: (1) requirements for such licensing schemes: The scheme must whether the plaintiff has established a substantial likelihood provide for definite and specific time limits within which a or probability of success on the merits; (2) whether there is a license is to be granted or denied, and an avenue for prompt threat of irreparable harm to the plaintiff; (3) whether judicial review must be established. The Paducah ordinance issuance of the injunction would cause substantial harm to satisfies both requirements. others; and (4) whether the public interest would be served by granting injunctive relief. See Connection Distrib. Co. v. * * * Reno, 154 F.3d 281, 288 (6th Cir. 1998), cert. denied, 119 S.Ct. 1496 (1999). This Court reviews the grant or denial of The ordinance itself is clear enough on its face. Section 11- a preliminary injunction for an abuse of discretion. Id. “‘The 79(a) requires an “immediate” investigation “upon receipt of district court’s determination will be disturbed only if the an application,” and “the City shall approve or deny the district court relied upon clearly erroneous findings of fact, issuance of a license to an applicant within ten (10) business improperly applied the governing law, or used an erroneous days.” The ordinance on its face requires Paducah’s various legal standard.’” Id. (quoting Blue Cross & Blue Shield administrative investigations and its final decision to take Mutual of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d place “within ten (10) business days.” So I do not see any 318, 322 (6th Cir. 1997)). In cases involving the First problem on the issue of delay. Even if there were some Amendment, the crucial inquiry is usually whether the ambiguity, the City has conceded that it must finish its work plaintiff has demonstrated a likelihood of success on the and issue a decision within the 10-day period. If the City delays beyond that time, the plaintiff would be entitled immediately to an injunction. 4 Section 11-6(e)(13) requires a business license applicant to submit a notarized statement from the landowner of record “acknowledging that In addition, the Court’s opinion proceeds under the a sexually oriented business establishment is permitted to be located on incorrect assumption that challenging this city ordinance on the real property.” Ord. § 11-6(e)(13). The District Court found this its face is the appropriate course of action under the provision burdensome because the landowner is not legally obligated to circumstances. It is true that our First Amendment case law give such a statement, and concluded that the City had failed to show how this requirement furthers a substantial government interest. The District has long allowed facial challenges to regulations implicating Court enjoined § 11-9, which deals with application and annual license First Amendment rights, even in situations where facial fees, because Paducah had failed to justify the high cost of the fees. The challenges would otherwise be deemed inappropriate. As the City did not cross-appeal the District Court’s decision on these issues. 18 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 7 of Paducah, et al. of Paducah, et al.

Paducah’s ordinance lacks such an assurance, it is merits. Id. This is so because, as in this case, the issues of unconstitutional. the public interest and harm to the respective parties largely depend on the constitutionality of the statute. Id. IV. III. We hold that the City’s licensing scheme, on its face, violates the First Amendment because it fails to provide that The sole issue raised on appeal is whether Paducah’s the City will make a licensing decision within a brief licensing scheme, on its face, contains adequate procedural specified time period, that the status quo will be maintained safeguards as required by the First Amendment. We conclude during this period and during judicial review, and that a that it does not. prompt judicial determination will be available. Accordingly, we conclude that the District Court erred in denying the As an initial matter, we note that Nightclubs has standing plaintiff’s request to preliminarily enjoin the licensing to bring a facial attack against the City’s licensing scheme. scheme, and we REVERSE and VACATE the District “In the area of freedom of expression it is well established Court’s order in this regard. We also REMAND the case for that one has standing to challenge a statute on the ground that a determination of whether the licensing scheme is severable it delegates overly broad licensing discretion to an from the remainder of the ordinance, and for further administrative office, whether or not his conduct could be proceedings consistent with this opinion. proscribed by a properly drawn statute, and whether or not he applied for a license.” Freedman v. Maryland, 380 U.S. 51, 56 (1965). A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process. See id. at 57; East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 224, reh’g denied (6th Cir.), cert. denied, 516 U.S. 909 (1995). The rationale for permitting a facial challenge is that when a licensing scheme allegedly contains a risk of delay, “‘every application of the statute create[s] an impermissible risk of suppression of ideas.’” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24 (1990) (plurality op.) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n.15 (1984)) (brackets in original). Because Nightclubs claims that Paducah’s licensing scheme creates an impermissible risk of delay and lacks constitutionally-required safeguards, Nightclubs has standing to challenge the ordinance on its face.5

5 Paducah does not dispute that the plaintiff engages in activity protected by the First Amendment. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (erotic dancing constitutes expressive 8 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 17 of Paducah, et al. of Paducah, et al.

A “prior restraint” exists when speech is conditioned upon rendered affirming a denial of a special permit”). For the prior approval of public officials. See, e.g., Southeastern example, an ordinance could provide that a license shall issue Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) (denial if a reviewing court fails to reach a decision within a of use of public forum without procedural safeguards is reasonably brief period of time. Similarly, a city could also unconstitutional prior restraint). Although prior restraints issue provisional licenses to those businesses and employees “are not unconstitutional per se,” they come to court bearing who choose to seek judicial review of license denials. As a heavy presumption against their validity. Id. at 558 discussed previously, the Paducah ordinance fails to even (citations omitted). Prior restraints are presumptively invalid maintain the status quo, let alone consider the practicalities because they typically involve “two evils that will not be involved with the necessity of prompt judicial review. tolerated”: (1) the risk of censorship associated with the vesting of unbridled discretion in government officials; and There are other measures that a city may institute to help (2) “the risk of indefinitely suppressing permissible speech” ensure that judicial review will be expeditious. An ordinance when a licensing law fails to provide for the prompt issuance may provide that an administrative transcript must be of a license. FW/PBS, 493 U.S. at 225-27. submitted to a court within a brief, specified period of time. Cities may also petition their state legislatures to pass laws In Freedman, the Supreme Court invalidated a Maryland that would obligate state courts to resolve municipal film censorship statute under the First Amendment because administrative appeals within a reasonably short period of the statute lacked necessary procedural safeguards. time. While these measures may seem burdensome on first Freedman, 380 U.S. at 59-60. The Court held that three blush, they are reasonable in light of the great11importance this procedural safeguards are required to avoid constitutional nation attaches to the freedom of expression. It is precisely infirmity. Id. at 58-59. First, the decision whether to issue a because of this importance that prior restraints upon speech license must be made within a “specified brief period,” and, are strongly disfavored and presumptively invalid in the first if judicial review is sought, the status quo must be preserved place. As courts long have recognized, the procedural pending “a final judicial determination on the merits.” Id. at safeguards outlined in Freedman, FW/PBS, and their progeny 59. Second, the scheme “must also assure a prompt final are necessary to prevent licensing-scheme prior restraints judicial decision, to minimize the deterrent effect of an from being used as instruments for the suppression of interim and possibly erroneous denial of a license.” Id. expression. Third, a censorship scheme must place the burden of instituting judicial proceedings and proving that expression is In sum, a system of prior restraint that fails to ensure a unprotected on the censor rather than the exhibitor. Id. at 58. reasonably prompt decision by a judicial officer cannot be The holding of Freedman has been reaffirmed and applied in squared with the First Amendment. See Baby Tam, 154 F.3d at 1101-02; East Brooks Books, 48 F.3d at 225. Because

activity “within the outer perimeters of the First Amendment”). 11 Nonetheless, the dissent posits that a facial challenge is not “the It is worth noting that cities have other ways to regulate the appropriate course of action” in this case because, in effect, the City’s secondary effects of sexually-oriented businesses besides imposing attorney promised at oral argument that the City would apply the licensing schemes upon them. The Paducah ordinance itself includes a ordinance in a constitutional manner. However, there is no evidence in number of substantive regulations, such as a requirement that performers the record to support the limiting construction that the dissent is so eager remain six feet away from patrons. Zoning requirements are another to read into the ordinance. common way of regulating sexually-oriented businesses. 16 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 9 of Paducah, et al. of Paducah, et al.

The phrase ‘judicial review’ compels this conclusion. a long line of prior restraint cases. See, e.g., Riley v. National The phrase necessarily has two elements--(1) Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 802 (1988) consideration of a dispute by a judicial officer, and (2) a (invalidating state licensing requirement for fundraisers that decision. Without consideration, there is no review; permitted indefinite delays); Southeastern Promotions, 420 without a decision, the most exhaustive review is U.S. at 560 (reaffirming Freedman requirements and striking worthless. In baseball terms it would be like throwing a down system regulating use of public forum); United States pitch and not getting a call. As legendary major league v. Thirty-Seven Photographs, 402 U.S. 363, 374 (1971) umpire Bill Klem once said to an inquisitive catcher: ‘It (applying Freedman requirements to forfeiture proceedings ain’t nothin’ till I call it.’ This is also true of judicial for obscene materials). review. Until the judicial officer makes the call, it ain’t nothin’. In FW/PBS, the Supreme Court applied Freedman to a Dallas, Texas ordinance similar to the Paducah ordinance at Baby Tam, 154 F.3d at 1101-02. issue here. The Dallas ordinance required sexually oriented businesses to pass municipal inspections in order to obtain Quite obviously, a municipality has no authority to control mandatory licenses. FW/PBS, 493 U.S. at 227. In a plurality the period of time in which a state court will adjudicate a opinion, Justice O’Connor, joined by Justices Stevens and matter.10 Indeed, a city does not even possess the authority to Kennedy, held that two of the three Freedman safeguards “are create a mere “avenue” for prompt judicial review; the essential” to prevent a licensing scheme from causing undue availability of judicial review is, in effect, dependent upon delay in the issuance of a license: “the licensor must make the state law. We recognize that, as a practical matter, the decision whether to issue the license within a specified and requirement of prompt judicial review means that a city reasonable time period during which the status quo is seeking to impose a licensing scheme must take certain steps maintained, and there must be the possibility of prompt to avoid constitutional infirmities. Specifically, a city may judicial review in the event that the license is erroneously very well have to go beyond merely maintaining the status denied.” Id. at 228. The plurality concluded that the third quo and actually permit the communication of protected Freedman requirement--that the censor bear the burden of expression until a judicial decision is rendered on a matter. going to court and proving the unprotected nature of the See 11126 Baltimore, 58 F.3d at 1001 n.18 (county could speech--is inapplicable when a system of prior restraint does entirely avoid constitutional problem “by permitting adult not require a public official to pass judgment on the content bookstores to operate until a judicial determination is of any speech. Id. at 229-30. In a concurring opinion, Justice Brennan, joined by Justices Marshall and Blackmun, expressed the belief that all three of the procedural safeguards 10 Only a state legislature has the power to pass legislation requiring outlined in Freedman must be applied to any system of prior state courts to resolve certain types of cases within a particular period of restraint. Id. at 239 (Brennan, J., concurring). time. For example, legislatures have mandated statutorily that, to ensure one’s right to a speedy trial, courts must conduct criminal trials within a Although the status of the third Freedman requirement certain amount of time. See, e.g., K.R.S. § 421.510 (when defendant is remains unclear in the licensing context, this Circuit has charged with sexual abuse of a person under 16 years of age, defendant must be tried within 90 days of hearing); K.R.S. § 500.110 (Kentucky previously noted that, under FW/PBS, at least the first two court must try prisoner facing indictment on additional charges within 180 Freedman safeguards are essential for a licensing scheme to days of prisoner’s request); Ky. RCr. 9.02 (trials of all criminal comport with the First Amendment. See East Brooks Books, defendants in Kentucky shall be held as promptly as possible). 10 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 15 of Paducah, et al. of Paducah, et al.

48 F.3d at 224 (invalidating Memphis, Tennessee sexually Freedman’s requirement of “a prompt final judicial decision.” oriented business ordinance that failed to ensure prompt Freedman, 380 U.S. at 59. See Baby Tam, 154 F.3d at 1102 judicial review). Thus, a licensing scheme must remove (“plurality took issue only with Freedman’s requirement that standardless discretion from government officials and contain the censor bear the cost of going to court obtain judicial two procedural safeguards: (1) the decision whether to issue review; otherwise, FW/PBS offered nothing different from a license must be made within a specified brief period, and Freedman’s concept of what ‘judicial review’ meant”); 11126 the status quo must be maintained during that period and Baltimore, 58 F.3d at 1000 (“Justice O’Connor’s decision in during judicial review, and (2) there must be a “guarantee of FW/PBS cannot properly be read to relax the Freedman prompt judicial review.” Id. at 225. prompt judicial review requirement”). Justice O’Connor described the first two Freedman requirements as “essential”; Nightclubs argues that Paducah’s ordinance lacks both of she gave no indication that she was modifying the second these mandatory safeguards. We agree. First, on its face, the requirement of prompt judicial review. See FW/PBS, 493 ordinance fails to ensure that the City will decide whether to U.S. at 228-29. Although she spoke of “the possibility of” issue a license within a brief specified time period during and “an avenue for” prompt judicial review, see id., Justice which the status quo is maintained. Although the ordinance O’Connor in no way altered what “judicial review” clearly states that Paducah will approve or deny an application within means under Freedman and 9its progeny: “a final judicial ten days, the ordinance also states that no license will issue determination on the merits.” Freedman, 380 U.S. at 59. unless the City executes, and the premises passes, a variety of building inspections. See Ord. § 11-7(a). No specific time Indeed, if mere access to a judicial forum were sufficient, limits for completion of these inspections are placed on the then the second Freedman safeguard would be rendered “appropriate City departments and agencies.” Id. Further, the virtually meaningless. See Baby Tam, 154 F.3d at 1101. ordinance does not indicate that a license shall issue if any of Justice O’Connor observed in FW/PBS that “the core policy the City departments fails to complete a mandatory inspection underlying Freedman is that the license for a First within a timely period.6 In this regard, the Paducah ordinance Amendment-protected business must be issued within a reasonable period of time,” and that the first two Freedman safeguards work together to ensure that the entire review 6 process will be expeditious. FW/PBS, 493 U.S. at 228. As At oral argument, defendants’ counsel “conceded” that the the Ninth Circuit pointed out in Baby Tam, ordinance requires the City to issue a license within ten days even if the City fails to complete the necessary inspections. The dissenting opinion interprets this “concession” as a limiting construction that binds this Court. Both the City and the dissent fail to recognize that any limiting construction must “be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” City 9 of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988) Even if Justice O’Connor’s plurality opinion could be read as (ordinance vesting unbridled discretion in city official is unconstitutional reducing the prompt judicial review requirement, it was joined by only on its face). First Amendment rights would rest on a very thin reed two other justices, and, therefore, could not have overruled Freedman. indeed if the promises of a city attorney at oral argument were alone Further, there is no doubt that in FW/PBS, Justice Brennan, along with the sufficient to authoritatively limit the meaning of an ordinance. The record two justices joining his concurring opinion, unequivocally maintained that in this case is devoid of any evidence that a state court has construed the all three Freedman requirements should apply, including the requirement Paducah ordinance or that “a well-understood and uniformly applied of “a prompt judicial determination.” FW/PBS, 493 U.S. at 239 practice has developed that has virtually the force of a judicial (Brennan, J., concurring) (emphasis added). 14 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 11 of Paducah, et al. of Paducah, et al.

Moreover, this Circuit and a number of other circuits have is indistinguishable from the Dallas ordinance struck down in held that a licensing scheme must reasonably ensure a prompt FW/PBS. See FW/PBS, 493 U.S. at 227 (although ordinance judicial determination, and not mere access to judicial review. stated license would issue within 30 days of application, See Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d ordinance did not “set a time limit within which the 1097, 1101 (9th Cir. 1998) (“‘prompt judicial review’ means [necessary] inspections must occur”). Moreover, § 11-6(e) the opportunity for a prompt hearing and a prompt decision by delineates the information that comprises a “completed” a judicial officer”); 11126 Baltimore Blvd., Inc. v. Prince business license application. See Ord. § 11-6(e). The George’s County, Maryland, 58 F.3d 988, 1000-01 (4th Cir.) eleventh item in this list is that the applicant “must have a (en banc), cert. denied, 516 U.S. 1010 (1995) (under FW/PBS current City business license, and the premises must be and its progeny, prompt judicial determination is required); inspected and found to be in compliance with health, fire, East Brooks Books, 48 F.3d at 225 (prompt judicial zoning, plumbing and building codes.” Ord. § 11-6(e)(11). adjudication required). Although the First, Fifth, and Thus, § 11-6(e)(11) seems to require these inspections to be Eleventh Circuits have concluded that “for licensing completed before the ten-day investigatory period in § 11-7(a) ordinances, prompt judicial review only means access to will be triggered. The ordinance does not explain how prompt judicial review,” Boss Capital, Inc. v. City of inspections can be conducted prior to submission of a Casselberry, 1999 WL 688046, slip op. at *4 (11th Cir. Sept. completed license application, and such a requirement is 3, 1999),8 this Court remains persuaded that Supreme Court plagued with the risk of indefinite delays. Even if § 11- precedent requires a sufficiently prompt determination on the 6(e)(11) can be read to merely foreshadow the City’s merits. responsibilities under § 11-7(a), these sections fail to ensure that a license will be issued within a brief specified time Like the Fourth and Ninth Circuits, we do not read Justice period for the reasons discussed above. O’Connor’s plurality opinion in FW/PBS as relaxing Furthermore, the ordinance fails to preserve the status quo either during the administrative process for license renewals or pending judicial review of decisions to suspend, revoke, or as a dispute over whether the applicant falsely answered a question on the not renew licenses. If Paducah chooses not to renew a application. See Ord. §§ 11-7(a)(3), 11-8(2). Because any denial of a sexually oriented business license, that business must cease license would necessarily implicate the First Amendment, a licensing scheme must, on its face, ensure that all aggrieved applicants will be granted a prompt review--even those employees and business owners who do not have the wherewithal to launch costly constitutional attacks against construction.” Id. at n.11. For that reason, the dissent’s reliance on Ward the ordinance. v. Rock Against Racism, 491 U.S. 781 (1989), is totally misplaced. In 8 Rock Against Racism, which was not a prior restraint case, but, rather, a The Eleventh Circuit recently held in Boss Capital, as the First and case involving a time, place, or manner regulation, the District Court had Fifth Circuits previously have held, that the mere availability of a judicial “expressly found” that the city engaged in policies and practices that forum may satisfy the prompt judicial review requirement. See Boss limited the discretion of public officials. Id. at 795. There is no such Capital, 1999 WL 688046, slip op. at *5; TK’s Video, Inc. v. Denton finding in this case. We can neither presume that municipal officials will County, Texas, 24 F.3d 705, 709 (5th Cir. 1994); Jews for Jesus, Inc. v. act in good faith and respect a speaker’s First Amendment rights, nor read Massachusetts Bay Transp. Auth., 984 F.2d 1319, 1327 (1st Cir. 1993). a requirement into an ordinance that is not fairly and evidently present. When the Seventh Circuit was presented with the question, an en banc See City of Lakewood, 486 U.S. at 770, n.11; United Food & Commercial panel of that court sharply split on the issue. See Graff v. City of Chicago, Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 9 F.3d 1309 (7th Cir. 1993), cert. denied, 511 U.S. 1085 (1994). F.3d 341, 359 (6th Cir. 1998). 12 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 13 of Paducah, et al. of Paducah, et al.

operation immediately. The previous license does not remain decisions, but no time limits were placed on the city’s in effect while an appeal proceeds before the Board or, later, obligation to provide an administrative transcript. Id. while an action is pending in court. See Ord. §§ 11-10, 11-15. Moreover, although the appeal would have had “precedence In addition, if the City suspends or revokes a license for one over other litigation,” there was no assurance that the of the reasons provided in § 11-16, that decision will be Tennessee court would have resolved the appeal in a timely stayed while an appeal proceeds before the Board, but it will manner. Id. We noted that under Supreme Court case law, not be stayed pending judicial review. See Ord. § 11-17(b), judicial review processes with “potential delays of over five 11-17(f). Accordingly, the ordinance fails to maintain the months are impermissible.” Id. (discussing Southeastern status quo pending review as the First Amendment requires. Promotions, 420 U.S. at 562, and Thirty-Seven Photographs, See Freedman, 380 U.S. at 59 (“[a]ny restraint imposed in 402 U.S. at 373-74). Kentucky law fails to guarantee judicial advance of a final judicial determination on the merits must review of Paducah’s licensing decisions within any particular . . . be limited to preservation of the status quo for the shortest period of time, let alone within five months. fixed period compatible with sound judicial resolution”). The defendants argue, and the District Court concluded, The second Freedman safeguard--the guarantee of prompt that the requirement of prompt judicial review is satisfied judicial review--is also lacking in this case. The ordinance because an aggrieved applicant or licensee may seek provides that an applicant, or licensee whose license has been preliminary injunctive relief soon after filing an original suspended or revoked, may seek a review of the Board’s action in Kentucky court. This argument both misinterprets decision “in any court of competent jurisdiction.” Ord. §§ 11- a long line of legal precedent in the area of prior restraints and 15(e), 11-17(f). Although Kentucky law does not provide for minimizes the importance of the First Amendment freedoms judicial appeals from administrative decisions, an aggrieved at stake. As previously discussed, Freedman, FW/PBS, and applicant or licensee may file “an original action” in East Brooks Books require an assurance of prompt judicial Kentucky court. See K.R.S. § 23A.010(4) (review of review; a theoretical possibility of expeditious judicial review administrative decision constitutes not appeal, but original is not constitutionally sufficient. A guarantee of prompt action). The case then proceeds according to standard court judicial review is necessary “because undue delay results in rules, with the state court conducting a “limited trial de novo, the unconstitutional suppression of protected speech.” including review of the record of the board and other FW/PBS, 493 U.S. at 228. If an applicant challenges the evidence.” City of Covington v. Tranter, 673 S.W.2d 744, Board’s decision to uphold the denial of a license, there is 748 (Ky. Ct. App. 1984). The person seeking review of the nothing in Kentucky law requiring the state court to swiftly administrative decision generally bears the burden of schedule a hearing on a motion for injunctive relief. While furnishing the transcript to the state court. Id. Kentucky law we trust state courts to exercise due diligence, we cannot be does not in any way limit the time for furnishing transcripts, sure that a state judge, who often is elected and toiling under conducting a court hearing, or rendering a judicial decision. a busy docket, will7 conduct a hearing and render a decision in a prompt manner. This procedure for judicial review contains an even greater potential for indefinite delays than the Memphis scheme this Court found unconstitutional in East Brooks Books. See East 7 The District Court not only assumed that the state court would Brooks Books, 48 F.3d at 225. In that case, Tennessee law speedily issue injunctive relief, but also assumed that a judicial appeal expressly authorized judicial review of administrative would be brought on First Amendment grounds. There could, of course, be non-constitutional reasons for challenging the denial of a license, such