The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' JOINT
MOTION FOR SUMMARY JUDGMENT;
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY
ORDER TO SHOW CAUSE
In their respective complaints, plaintiffs allege certain
amendments to San Diego County ordinances regulating adult
entertainment businesses violate their rights under the federal
and California constitutions. Before the Court are plaintiffs'
Joint Motion for Summary Judgment and defendant's Motion for
Summary Judgment or, in the Alternative, Partial Summary
Judgment. The parties also filed opposing and reply papers, as
well as a joint statement of undisputed facts, almost 2,000 pages
of legislative record, and over 700 pages of declarations and
exhibits. Defendant also filed evidentiary objections.*fn1
Although the parties requested oral
argument, the Court finds the issues in both motions appropriate
for decision on the papers and without oral argument pursuant to
Civil Local Rule 7.1(d)(1). For the reasons discussed below,
plaintiffs' Joint Motion for Summary Judgment is GRANTED IN PART
AND DENIED IN PART, and defendant's Motion for Summary Judgment
or, in the Alternative, Partial Summary Judgment is GRANTED IN
PART AND DENIED IN PART. As specified more fully below, the
Court finds unconstitutional certain procedural provisions of the
ordinance amendments pertaining to licensing and zoning
In June 2002, the San Diego County Board of Supervisors passed
Local Ordinance No. 9469, entitled "An Ordinance Amending the San
Diego County Zoning Ordinance Relating to Adult Entertainment
Establishments;" and Local Ordinance No. 9479, entitled "An
Ordinance Amending the San Diego County Code of Regulatory
Ordinances Relating to the Licensing and Regulation of Adult
Entertainment Establishments." (Legislative Record ("LR"), at
15-32, 139-75.) Both of these ordinances were effective in July
Plaintiffs filed two separate complaints against San Diego
County ("County") which have been consolidated. (Order filed Aug.
5, 2004, at 2, 5.) Plaintiff Tollis, Inc. owns property at 1560
N. Magnolia Avenue in the Pepper Drive/Bostonia area of San Diego
County, which it leases to plaintiff 1560 N. Magnolia Ave., LLC.
At this location, plaintiff 1560 N. Magnolia Ave., LLC operates a
business called Deja Vu, which sells sexually explicit books,
magazines, and novelties. Deja Vu also wants to offer live nude
dancing at this location. It acquired its present location before
the amendments went into effect, after obtaining the operating
permit, and on the contingency it could offer nude entertainment.
Hereafter, these plaintiffs will be referred to collectively as
Deja Vu. Plaintiff Fantasyland Video, Inc. ("Fantasyland")
operates a business at 1157 Sweetwater Road in the Spring Valley
area of San Diego County, which includes an "Adult Arcade/Peep
Show," an "Adult Bookstore," an "Adult Novelty Store," and an
"Adult Video Store." (Jt. Stmnt of Facts, 4.)
In their complaints, plaintiffs seek a declaration the
amendments to local ordinances which affect either the location
or the activities conducted by their businesses violate their
right to free speech provisions of the First Amendment. In addition, they seek an
injunction prohibiting the enforcement of the amendments against
them. Deja Vu also argues the amendments violate the California
Constitution, and seeks damages arising out of the County's
threat to enforce the amendments.
Although they filed a Joint Motion for Summary Judgment, each
of the plaintiffs challenges only those portions of the
amendments affecting their particular businesses. Plaintiffs'
Joint Motion seeks summary judgment "in the form of an order
enjoining the County from enforcing" the ordinances as amended
because they are unconstitutional. The County's Motion seeks
summary judgment in its favor on the ground all amendments to the
ordinances are constitutional and enforceable against plaintiffs.
I. Summary Judgment Standards
Federal Rule of Civil Procedure 56(c) empowers the court to
enter summary judgment on factually unsupported claims or
defenses, and thereby "secure the just, speedy and inexpensive
determination of every action." Celotex Corp. v. Catrett,
477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the
"pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). The moving
party bears the initial burden of demonstrating the absence of a
"genuine issue of material fact for trial." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). A fact is material if it
could affect the outcome of the suit under the governing
substantive law. Id. at 248. A dispute about a material fact is
genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
"When the party moving for summary judgment would bear the
burden of proof at trial, it must come forward with evidence
which would entitle it to a directed verdict if the evidence went
uncontroverted at trial. In such a case, the moving party has the
initial burden of establishing the absence of a genuine issue of
fact on each issue material to its case. Once the moving party
comes forward with sufficient evidence, the burden then moves to
the opposing party, who must present significant probative
evidence tending to support its claim or defense." C.A.R.
Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc.,
213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden by pointing out the absence of evidence from the nonmoving
party. The moving party need not disprove the other party's case.
See Celotex, 477 U.S. at 325; see also Garneau v. City of
Seattle, 147 F.3d 802, 807 (9th Cir. 1998).
If the movant meets his burden, the burden shifts to the
nonmovant to show summary adjudication is not appropriate.
Celotex, 477 U.S. at 317, 324. The nonmovant does not meet this
burden by showing "some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The "mere scintilla of evidence in support
of the nonmoving party's position is not sufficient." Anderson,
477 U.S. at 252. Accordingly, the nonmoving party cannot oppose a
properly supported summary adjudication motion by "rest[ing] on
mere allegations or denials in his pleadings." Id. at 256. The
nonmovant must go beyond the pleadings to designate specific
facts showing there are genuine factual issues which "can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party." Id. at 250.
In considering the motion, the nonmovant's evidence is to be
believed and all justifiable inferences are to be drawn in his
favor. Anderson, 477 U.S. at 255. Determinations regarding
credibility, the weighing of evidence, and the drawing of
legitimate inferences are jury functions, and are not appropriate
for resolution by the court on a summary judgment motion. Id.
In this case, the parties filed cross-motions regarding some of
the same causes of action. As discussed below, the County bears
the burden of proof at trial with respect to some issues raised
by the cross-motions; with respect to other issues, the burden is
on plaintiffs. The mere fact the parties filed cross-motions
"does not necessarily mean there are no disputed issues of
material fact and does not necessarily permit the judge to render
judgment in favor of one side or the other." Starsky v.
Williams, 512 F.2d 109, 112 (9th Cir. 1975). "[E]ach motion must
be considered on its own merits." Fair Hous. Council of
Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136
(9th Cir. 2001).
When proper grounds for granting summary judgment have not been
established, "[s]ummary adjudication may be appropriate on
clearly defined, distinct issues." FMC Corp. v. Vendo Co.,
196 F. Supp. 2d 1023, 1029 (E.D. Cal. 2002) (citing Robi v. Five
Platters, Inc., 918 F.2d 1439 (9th Cir. 1990)). "An order under
Rule 56(d) narrows the issues and enables the parties to
recognize more fully their rights, yet it permits the court to retain full power to
completely adjudicate all aspects of the case when the proper
time arrives." FMC Corp., 196 F. Supp. 2d at 1029-30 (citing
10B Wright & Miller, Federal Practice and Procedure (3d ed.
1998), § 2737 at 316-18). Specifically, Rule 56(d) empowers the
court to "ascertain what material facts exist without substantial
controversy and what material facts are actually and in good
faith controverted" and to "mak[e] an order specifying the facts
that appear without substantial controversy, and direct? such
further proceedings in the action as are just."
II. Summary of Applicable First Amendment Principles and
Burdens of Proof
The parties dispute the legal standard and burdens of proof
applicable to time, place, and manner restrictions regulating
adult entertainment businesses after City of Los Angeles v.
Alameda Books, Inc., 535 U.S. 434 (2002). Since this standard
applies to many issues raised by the cross-motions, the Court
addresses it in detail below.
The general rule is "[l]aws designed or intended to suppress or
restrict the expression of specific speakers contradict basic
First Amendment principles." United States v. Playboy Entm't
Group, 529 U.S. 803, 812 (2000). "In general, where a plaintiff
claims suppression of speech under the First Amendment, the
plaintiff bears the initial burden of proving that speech was
restricted by the governmental action in question." Lim v. City
of Long Beach, 217 F.3d 1050, 1054 n. 4 (9th Cir. 2000). It is
beyond question sexually-oriented speech enjoys some protection
under the free speech provisions of the First Amendment.
Playboy, 529 U.S. at 812-17. Although neither party expressly
discusses the issue whether the County's amendments restrict
protected speech; the undisputed underlying premise of their
motions is that they do.
"The burden then shifts to the defendant governmental entity to
prove that the restriction in question is constitutional." Lim,
217 F.3d at 1054 n. 4. The government cannot ban
sexually-oriented speech altogether but can place restrictions on
it so long as the restrictions satisfy one of two standards. The
purpose or justification behind the law in question is the key to
determining which of the two standards applies.
If the law is designed to have a direct impact by restricting
speech because of the content of the speech and because of the
effect the speech may have on its listeners, the law is referred
to as a content-based restriction, and the government bears an
especially heavy burden to overcome a First Amendment challenge. Playboy, 529 U.S. at 812-17. A content-based speech
restriction can survive a First Amendment challenge only if "it
satisfies strict scrutiny," which requires the government not
only to identify and establish a compelling interest but also to
explain why a less restrictive provision would not be as
effective. Id. at 813, 817.
On the other hand, if the law is content-neutral, and its
restrictions on sexually-oriented speech are primarily justified
not by the concern for the effect of the subject matter on
listeners, but by reducing negative secondary effects associated
with the speech, it is subject to the intermediate level of
scrutiny, which is highly deferential to the government. City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-49 (1986).
The parties in this case do not dispute the intermediate
scrutiny, rather than strict scrutiny, applies.
Content-neutral time, place, and manner restrictions are
constitutional under intermediate scrutiny even if they restrain
speech, so long as they meet three requirements. First, the
restriction must be "content-neutral." This means the restriction
can be justified without reference to the content of the speech.
A restriction can be justified without reference to the content
of the speech if the "predominate intent" behind the restriction
is not to suppress the speech but to "serve a substantial
government interest," such as preventing crime or combating "the
undesirable secondary effects" of businesses which "purvey
sexually explicit materials." Renton, 475 U.S. at 48-49. If so
justified, restrictions which specifically target or treat adult
businesses differently from other types of businesses can be
content-neural. Id. at 47-48.
Second, the restriction must be "narrowly tailored" to "serve a
substantial government interest." Renton, 475 U.S. at 50-52. In
Renton, for example, a zoning ordinance, which required adult
movie theaters to be located at least 1,000 feet from residential
zones, churches, parks, and schools, was held narrowly tailored
and constitutional. Id. at 43. The ordinance was considered
"narrowly tailored" because it did not apply to all theaters but
was designed "to affect only that category of theaters shown to
produce the unwanted secondary effects." Id. at 52. And this
form of selectivity is constitutionally permissible; a time,
place, and manner restriction affecting protected speech can be
"under-inclusive." Id. In other words, the government does not
have to attempt to address all of its interests at one time.
Id. at 52-53. The location restriction in Renton only applied
to adult theaters and not to other types of adult businesses. This was and is permissible because the
government "must be allowed a reasonable opportunity to
experiment with solutions" and can, for example, choose to single
out and place limitations on "one particular kind of adult
business." Id. (internal quotation marks and citation omitted).
Furthermore, the government has broad discretion in selecting a
method "to further its substantial interests." Id. at 52. It
may, for example, "regulate adult theaters by dispersing them" or
"by effectively concentrating them" in the same area. Id.
Third, the restriction must allow "for reasonable alternative
avenues of communication." Renton, 475 U.S. at 50, 52. The
"overriding concern is that a city cannot `effectively deny adult
businesses a reasonable opportunity to open and operate within
the city.'" Diamond v. City of Taft, 215 F.3d 1052, 1056 (9th
Cir. 2000) (quoting Renton, 475 U.S. at 54) (internal
alterations omitted). An adult business is given a reasonable
opportunity to relocate, if the potential relocation sites "may
be considered part of an actual business real estate market," and
if "there are an adequate number of potential relocation sites
for already existing businesses." Topanga Press, Inc. v. City of
Los Angeles, 989 F.2d 1524, 1530 (9th Cir. 1993). "That
respondents must fend for themselves in the real estate market,
on an equal footing with other prospective purchasers and
lessees, does not give rise to a First Amendment violation."
Renton, 475 U.S. at 54.
Although the burden of proof with respect to these requirements
is on the government, the burden is not difficult to meet. See,
e.g., World Wide Video, Inc. v. City of Spokane, 368 F.3d 1186
1196 (9th Cir. 2004), as amended at 2004 U.S. App. LEXIS 14381
and 2004 U.S. App. LEXIS 18927 (referring to the standard set
forth in Renton and Alameda Books as "very little evidence
standard"). The government is not required to meet "an
unnecessarily rigid burden of proof" to justify the restriction
and may rely on general experiences, findings, and studies
completed by other local governments, including those reflected
in judicial opinions:
[The government] was entitled to rely on the
experiences of . . . other cities, and in particular
on the "detailed findings" summarized in [a judicial]
opinion, in enacting its adult theater zoning
ordinance. The First Amendment does not require a
city, before enacting such an ordinance, to conduct
new studies or produce evidence independent of that
already generated by other cities, so long as
whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city
Renton, 475 U.S. at 50, 51-52: see also City of Erie v. Pap's
A.M., 529 U.S. 277
, 296-97 (2000) (reliance on judicial opinions discussing secondary effects of
similar activities or establishments is reasonable).
Plaintiffs believe the highly deferential standard set forth in
Renton was modified in their favor by Alameda Books. They
argue the government is no longer entitled to the "extreme
deference" articulated in Renton.
Plaintiffs' argument is based on a misreading of Justice
Kennedy's concurring opinion in Alameda Books. Although Justice
Kennedy's concurrence "may be regarded as the controlling
opinion," because there was no majority opinion, it did not work
a fundamental shift in the Renton analysis. See Ctr. for Fair
Pub. Policy v. Maricopa County, 336 F.3d 1153, 1161-62 (9th Cir.
2003) (citing Marks v. United States, 430 U.S. 188, 193 (1976)
("When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgment on the narrowest
grounds.")). Justice Kennedy disavowed any interpretation which
would fundamentally change the Renton standard. Alameda
Books, 535 U.S. at 448 (Kennedy, J., concurring) ("the central
holding of Renton is sound"). He agreed with the plurality laws
"designed to decrease secondary effects and not speech should be
subject to intermediate rather than strict scrutiny." Id. The
plurality considered his opinion "simply a reformulation of the
requirement that an ordinance warrants intermediate scrutiny only
if it is a time, place, and manner regulation and not a ban."
Id. at 443. Accordingly, Justice Kennedy's concurring opinion
was not "meant to precipitate a sea change in this particular
corner of First Amendment law," as suggested by plaintiffs. See
Ctr. for Fair Pub. Policy, 336 F.3d at 1162.
In Alameda Books, the Supreme Court granted certiorari to
"clarify the standard for determining whether an ordinance serves
a substantial government interest under Renton." Alameda Books,
535 U.S. at 433. The plurality opinion noted the Renton
standard is not intended to mean a government "can get away with
shoddy data or reasoning." Id. at 438. The focus of many of
plaintiffs' arguments in this case is the reference to "shoddy
data" they argue the reports and other evidence relied on by
the County in amending its ordinances are "shoddy" and do not
support the County's rationale for the new restrictions on their
businesses. In addition, Alameda Books set forth a shifting
burden of proof:
The [government's] evidence must fairly support the
[government's] rationale for its ordinance. If
plaintiffs fail to cast direct doubt on this
rationale, either by demonstrating that the [government's] evidence does not support its
rationale or by furnishing evidence that disputes the
[government's] factual findings, the [government]
meets the standard set forth in Renton. If
plaintiffs succeed in casting doubt on a
[government's] rationale in either manner, the burden
shifts back to the [government] to supplement the
record with evidence renewing support for a theory
that justifies its ordinance.
Id. at 438-39. In this regard, plaintiffs argue their evidence
is at the very least sufficient to "cast direct doubt" on the
County's rationale for the amendments, thereby shifting the
burden to the County to supplement the record.
Plaintiffs interpretation of Alameda Books as raising the
government's evidentiary bar is unsupported by its holding, and
was expressly rejected by the plurality and Justice Kennedy's
concurrence, which noted "very little evidence is required" for
the government to meet its burden. Alameda Books,
535 U.S. at 451. Given the low level of evidence required for the government
to properly support a content-neutral ordinance, and the high
level of deference it is afforded, the plaintiff's burden to
"cast direct doubt" on the government's rationale is very high.
See World Wide Video, 368 F.3d at 1195-96; Ctr. for Fair Pub.
Policy, 336 F.3d at 1168.
III. Hours-of-Operation Restriction
A. The First Amendment Claim
In their respective operative complaints, all plaintiffs
challenge on First Amendment grounds the new hours-of-operation
restriction, which states as follows:
It shall be unlawful for any owner, operator, manager
or employee of an adult entertainment establishment
to allow such establishment to remain open for
business between the hours of 2:00 a.m. and 6:00 a.m.
of any day excepting herefrom an adult hotel/motel.
(LR, at 154 [Ordinance No. 9479, § 21, 1809].) The County moves
for summary judgment on plaintiffs' hours-of-operation claim, and
all plaintiffs cross-move for summary judgment on this claim.
It is undisputed intermediate scrutiny applies to the
hours-of-operation provision. Accordingly,
[t]he familiar three-part analytical framework
established in Renton applies. First, we must
determine whether the regulation is a complete ban on
protected expression. Second, we must determine
whether the county's purpose in enacting the
provision is the amelioration of secondary effects.
If so, it is subject to intermediate scrutiny, and we
must ask whether the provision is designed to serve a
substantial government interest, and whether
reasonable alternative avenues of communication
Dream Palace v. County of Maricopa, 384 F.3d 990, 1013 (9th
Cir. 2004) (internal citations omitted). Plaintiffs do not dispute the hours-of-operation restriction is
content-neutral. Instead, they challenge whether the concerns the
County aims to address constitute a substantial government
interest, and whether the restriction leaves open reasonable
alternative avenues of communication. Plaintiffs contend the
County's evidence is insufficient to demonstrate a connection
between the new provision and amelioration of negative secondary
effects of adult entertainment businesses.
The County maintains the hours-of-operation restriction was
intended to reduce negative secondary effects of excessive noise,
traffic, disorderly conduct and crime during late night hours. In
enacting the restriction, the County relied on evidence including
twenty-eight studies from other jurisdictions regarding secondary
effects of adult entertainment businesses, such as prostitution,
public sexual activity, noise and unclean conditions (LR, at
443-1718, 1752-1833); experiences of other municipalities as
reported in several judicial opinions (LR, at 6-17, 141-42,
1719-47); and local public testimony by fifteen witnesses (LR, at
1906 et seq.).*fn2 This record "compares favorably to the
record found to pass muster" in Center for Fair Public Policy
and Dream Palace. See Dream Palace, 384 F.3d at 1015. The type
of evidence considered by the County has been held "reasonable
and relevant" in other cases. Id. (quoting Ctr. for Fair
Public Policy, 336 F.3d at 1168).
Furthermore, the County argues Center for Fair Public Policy
bars plaintiffs' claim as a matter of law because it rejected a
First Amendment challenge to a similar hours-of-operation
restriction. Although Center for Fair Public Policy established
a general proposition hours-of-operation restrictions may pass
muster under the First Amendment, this does not relieve the Court
of the duty to put the County to its proof in this case. See
Dream Palace, 384 F.3d at 1012.
Plaintiffs do not contend the County failed to satisfy its
initial burden of producing evidence which fairly supports the
amendments. Instead, they argue their contrary evidence "cast[s]
ample doubt on the County's proffered justification for its
legislation," shifts the burden to the County to supplement the
record with further justification, and raises a genuine issue of
material fact sufficient to preclude summary judgment for the
County. (Pls.' Joint Mot., at 1-3.) By presenting their own
evidence, plaintiffs attempt to distinguish this case from
Center for Fair Public Policy. Specifically, plaintiffs mount a two-pronged attack on the
County's evidence. First, they attempt to demonstrate the
County's evidence does not support its rationale by pointing to
the testimony of the County's own expert, Dr. Richard McCleary.
See Alameda Books, 535 U.S. at 441 (plurality opinion). Second,
plaintiffs furnish evidence, a report and empirical studies of
their expert Dr. Daniel Linz, which they contend disputes the
County's evidence. See id. As discussed below, neither prong is
sufficient as a matter of law to cast direct doubt on the
County's evidence, raise a genuine issue of material fact in
opposition to the County's summary judgment motion, or meet
plaintiffs' burden as the moving parties on their own
Dr. McCleary testified "late-night crime is independent of
adult entertainment businesses and rather derives from alcoholic
beverage establishments and their patrons." (Pls.' Joint Reply,
at 2.) Plaintiffs argue Dr. McCleary conceded there is no
connection between late night crime and adult entertainment
businesses or their patrons. (Id.) The Court has reviewed the
entirety of Dr. McCleary's testimony submitted by both sides
(Bunton Reply Decl., Ex. 18; Manicom Opp'n Decl., Ex. 3), and
finds it does not support plaintiffs' argument. Furthermore, in
the context of all the secondary effects the County sought to
address, plaintiffs' argument, even if believed, is insufficient
as a matter of law.
Dr. McCleary testified there would still be an increase in
crime "independent of any adult businesses" and even if all
businesses were closed from 2:00 a.m. to 6:00 a.m. because
"[c]riminals often operate during late night, early morning hours
when witnesses and police are less likely to be present." (Bunton
Reply Decl., Ex. 18, at 46-47.) However, he also testified
businesses open between 2:00 a.m. and 6:00 a.m. are a "focus
point for noise" because bar patrons tend to look for another
place to go after the bars close at 1:00 a.m., and bar patrons
who have consumed alcoholic beverages have been known to
congregate outside adult businesses, resulting in noise
complaints. (Id. at 33-34.) He indicated the hours restriction
is justifiable because police resources are very strained during
these hours, which results in added risks to public safety.
(Id. at 41 et seq.) Furthermore, if fewer people are "out and
about" during the late night hours because businesses are closed,
it will be more difficult for "predatory criminals" to find
victims, resulting in a reduction in crime. (Id. at 46-47.)
Even if the Court accepted plaintiffs' interpretation of Dr.
McCleary's testimony to suggest late night crime is independent
of adult entertainment businesses, it is insufficient to cast
direct doubt on the County's evidence. To raise a genuine issue of material fact on
summary judgment, a fact is material if it could affect the
outcome of the suit under the governing substantive law.
Anderson, 477 U.S. at 248. Under Ninth Circuit law interpreting
and applying the burden-shifting standard articulated in Alameda
Books, plaintiffs must effectively controvert much, if not all,
of the County's evidence, leaving less than "some evidence" on
which the County could reasonably rely for the ordinance. World
Wide Video, 368 F.3d at 1195-96 (affirming order granting the
government's motion for summary judgment). As in World Wide
Video, plaintiffs' argument here does not effectively controvert
much of the County's evidence because the County relied on a
voluminous legislative record, including numerous studies
conducted by other municipalities, judicial opinions discussing
similar secondary effects and public testimony, which plaintiffs
do not address. Furthermore, plaintiffs' argument is targeted
only toward evidentiary support addressing late night crime, and
does not address the other targeted secondary effects such as
late night noise, traffic and disorderly conduct. The County only
needs "some evidence" to support its ordinance. Id.
Accordingly, plaintiffs' first argument fails as a matter of law
to cast direct doubt on the County's evidence.
Plaintiffs' second argument is based on Dr. Linz' report. Dr.
Linz opined the reports cited by the County on the negative
secondary effects of sexually-oriented businesses are unreliable
because their methodology and empirical assumptions are flawed.
He participated in a number of other relevant studies, which he
claims do not suffer from "methodological flaws," and show
sexually-oriented businesses are not causally related to crime.
(Linz Decl., at 9.) In addition, Dr. Linz conducted "an empirical
study" which examined "whether there is a greater incidence of
crime in the vicinity of peep show establishments than in
comparable control areas, and whether any secondary crime effects
of peep show establishments in San Diego are disproportionately
greater between the hours of 2 a.m. and 6 a.m." (Id. at 11.) He
also completed "an empirical study of criminal activity
surrounding adult businesses in San Diego County." (Id. at 12.)
Based on his own studies, Dr. Linz opined there is "no evidence
that the adult businesses examined in the study are associated in
any way with the clustering of crimes against persons. . . ."
Plaintiffs point out Dr. Linz' approach was accepted by other
courts in cases involving successful challenges to municipal
ordinances. See Ramos v. Town of Vernon, 353 F.3d 171 (2nd Cir.
2003); Hodgkins v. Peterson, 2004 U.S. Dist. LEXIS 16359 (S.D. Ind.);
J.L. Spoons, Inc. v. Morckel, 314 F. Supp. 2d 746 (N.D. Ohio
2004). These cases, however, are distinguishable. Ramos and
Hodgkins did not involve adult entertainment businesses. They
addressed juvenile curfew ordinances, and were analyzed under a
different legal standard. Ramos, 353 F.3d at 176-84 (applying
equal protection intermediate scrutiny to a curfew restriction on
to minors' right to intrastate travel); Hodgkins, 2004 U.S.
Dist. LEXIS 16359 (applying strict scrutiny to parental rights
issue). Although J.L. Spoons involved an adult entertainment
ordinance, the plaintiffs presented a facial overbreadth
challenge, and the court did not apply Alameda Books but
Triplett Grille v. City of Akron, 40 F.3d 129, 132 (6th Cir.
1994). None of these cases is therefore helpful in analyzing
whether plaintiffs cast direct doubt on the County's evidence
following Alameda Books.
On the other hand, Dr. Linz' approach was unsuccessful in
pertinent cases. See Pap's, 529 U.S. at 300; Alameda Books,
535 U.S. at 439 (plurality opinion); Nite Moves Entm't, Inc. v.
City of Boise, 153 F. Supp. 2d 1198, 1208-09 (D. Idaho 2001). In
Pap's, amicus curiae relied on Dr. Linz' study, and apparently
suggested when secondary effects are amenable to empirical
treatment, the government's non-empirical evidence should be
discounted, and an empirical analysis should be required.
529 U.S. at 314-15 n. 3 (Souter, J., dissenting). The majority
opinion rejected this idea. Id. at 300. As in this case, in
Alameda Books, amicus curiae criticized the studies relied upon
by the City of Los Angeles. 535 U.S. at 453-54 & n. 1 (Souter,
J., dissenting). Again, the plurality rejected the idea and noted
the governments have never been required to demonstrate with
empirical data their ordinances will successfully lower crime.
Id. at 439.
Plaintiffs' argument is similar to the one considered and
rejected by the Seventh Circuit in G.M. Enterprises v. Town of
St. Joseph, 350 F.3d 631
(7th Cir. 2003). Along with other
evidence contrary to the government's position, those challenging
the ordinance submitted a study and declaration by Dr. Linz that
attacked the methodology employed in the studies relied upon by
the government. Id. at 635-36. The Seventh Circuit concluded
this was just "some evidence that might arguably undermine the
[government's] inference of the correlation of adult
entertainment and adverse secondary effects. . . ." Id. at 639.
It concluded "some evidence" was not enough:
Although this evidence shows that the [government]
might have reached a different and equally reasonable
conclusion regarding the relationship between adverse
secondary effects and sexually oriented businesses, it is not
sufficient to vitiate the result reached in the
[government's] legislative process. [¶] Alameda
Books does not require a court to re-weigh the
evidence considered by a legislative body, nor does
it empower a court to substitute its judgment in
regards to whether a regulation will best serve a
community, so long as the regulatory body has
satisfied the Renton requirement that it consider
evidence "reasonably believed to be relevant to the
Id. at 639-40 (quoting Renton, 475 U.S. at 51-52; see also
Alameda Books, 535 U.S. at 440 (plurality opinion)
(acknowledging the local legislative body "is in a better
position than the Judiciary to gather and evaluate data on local
problems"), 445 (Kennedy, J., concurring) ("as a general matter,
courts should not be in the business of second-guessing
fact-bound empirical assessments of city planners. . . . [t]he
[local legislative body] knows the streets of [the city] better
than we do").
The Seventh Circuit's analysis in G.M. Enterprises is
consistent with the Ninth Circuit's analysis in World Wide
Video. As discussed above, to successfully cast direct doubt on
the County's evidence, plaintiffs bear a heavy burden of
effectively rebutting more than just some of the categories of
permissible evidence relied upon by the County with respect to
each targeted secondary effects. See World Wide Video,
368 F.3d at 1195-96. So long as some evidence remains upon which the
County reasonably relied, plaintiffs fail to cast direct doubt.
See id. Although Dr. Linz' study and opinion purport to
contradict some of the County's secondary effect evidence,
plaintiffs' argument in this regard suffers from some of the same
fatal infirmities as their first argument based on Dr. McCleary's
testimony. It addresses only the reports from other
municipalities, but does not address the judicial opinions and
public testimony which the County also considered. In addition,
it is directed only toward late night crime, and does not address
the remaining secondary effects the County targeted.
As plaintiffs' evidence is insufficient as a matter of law to
cast direct doubt on the County's evidence, plaintiffs fall short
of meeting their burden to raise a genuine issue of material fact
in opposition to the County's summary judgment motion with
respect to the new hours-of-operation restriction. A fortiori,
plaintiffs also fail to meet their burden as the moving parties
on their cross-motion. Therefore, the County's motion for summary
judgment of this issue is granted, and plaintiff's cross-motion
is denied. B. The California Constitution Claim
Plaintiffs move for summary judgment of their
hours-of-operation restriction claim to the extent it is based on
the California Constitution, and the County counters on the same
claim. Relying on the California Supreme Court's decision in
People v. Glaze, 27 Cal.3d 841 (1980), plaintiffs argue the new
hours-of-operation restriction violates Article I, Section 2, of
the California Constitution. The County argues the pertinent
portion of Glaze is no longer good law, and the ordinance at
issue therein is distinguishable in several material respects. A
review of the cases cited by the parties reveals the County is
In People v. Glaze, the California Supreme Court held invalid
under the California Constitution an ordinance which required
picture arcades to be closed between 2:00 a.m. and 9:00 a.m.
27 Cal.3d at 843-44, 849. The purpose of the hours-of-operation
restriction was to "prevent masturbation during those hours when
law enforcement problems are greatest." Id. at 847. The court
[C]rime in the streets could be reduced by
prohibiting all persons from going out in public.
However, when fundamental liberties are at stake, the
test in a free society is whether there are "less
drastic means" available to accomplish the
government's purpose. . . . The government may deal
directly with masturbation in public picture arcades
by persons who know or should know of the presence of
others who may be offended by such conduct by
arresting and prosecuting them. . . . The record
before this court fails to show either that criminal
activity is particularly acute at picture arcades or
that it is prevalent between the hours of 2 a.m. and
Id. at 847-48.
The Glaze ordinance is distinguishable. First, preventing
masturbation was the only reason for the hours-of-operation
restriction, while here the County has different and multiple
reasons for its restriction. Second, the Glaze ordinance
applied to all arcades and not just to those where masturbation
was likely to be a problem, while the County's ordinance applies
only to adult entertainment businesses. Last, the Glaze
ordinance required arcades to be closed three more hours per day
than the County's ordinance.
More importantly, however, Glaze is not controlling because
it applied a higher standard than necessary: strict, rather than
intermediate, scrutiny. Id. at 848-49. As already noted, the
United States Supreme Court established in Renton that
intermediate level of scrutiny should be applied when analyzing
restrictions on sexually-oriented speech. 475 U.S. at 46-49.
Following Renton, the California Supreme Court held the time, place, and manner test under the
free speech provisions of the California Constitution are
analyzed under federal constitutional standards:
[O]ur formulation of the time, place, and manner test
was fashioned from a long line of United States
Supreme Court cases, and . . . analysis of speech
regulation under article I, section 2(a), employs
time, place, and manner restrictions measured by
federal constitutional standards. The high court
continues to employ the same formulation set out
above in its time, place, and manner inquiry.
Los Angeles Alliance for Survival v. City of Los Angeles,
22 Cal.4th 352
, 364 n. 7 (2000) (internal quotation marks, citations
and alterations omitted). Given these developments in California
law, and the Court's finding the County's hours-of-operation
restriction meets federal constitutional standards, plaintiffs'
summary judgment motion as to the same claim under the California
Constitution is denied, and the County's cross-motion is granted.
IV. Interior Configuration (Open-Booth) Requirement
Plaintiff Fantasyland operates an "adult bookstore and arcade."
(Andrus Decl., at 2.) The rear portion of the store contains peep
show booths (i.e., "small, private viewing areas, each of which
has a currency-operated device that facilitates the viewing of
adult motion pictures"). (Id. at 3.) The peep show booths are
"designed to accommodate only one customer at a time" and
currently have "lockable doors on them." (Id. at 5.)
Fantasyland's complaint challenges two specific requirements of
the amended ordinance, which apply to the peep show booths. In
pertinent part, the amendment prohibits any "door, curtain, or
obstruction of any kind [to] be installed within the entrance to
a peep show booth." (LR, at 157 [Ordinance No. 9479, §
21.1816(2)].) Another challenged portion of the amendment states
No person shall operate a peep show unless a manager
is on duty to ensure its lawful operation and is
located at a manager's station which has an
unobstructed view of the entrance to each peep show
(Id. at 158 [§ 21.1819].) The County moves for summary judgment
on Fantasyland's First Amendment claim that these provisions,
referred to jointly as "open-booth requirement," violate the
First Amendment. Fantasyland cross-moves for summary judgment on
the same claims.
Fantasyland acknowledges "regulations comparable to this one
have been upheld in this circuit." (Pls.' Joint Mot., at 10.)
However, it argues these decisions are not necessarily
controlling because of the Supreme Court's more recent decision
in Alameda Books. Based in large part on Alameda Books, Fantasyland contends it is entitled to summary judgment in its
favor on this issue for three main reasons. First, it argues the
open-booth requirement unconstitutionally reduces the secondary
effects by reducing or chilling protected speech. Second, it
contends the County relied on "shoddy" evidence to support its
rationale for the open-booth requirement, and Fantasyland's
evidence casts direct doubt on this rationale. Third, Fantasyland
claims the open-booth requirement is not narrowly tailored.
A. Rationale for the Amendment
Fantasyland argues the open-booth requirement will address the
secondary effects targeted by the County's amendment by
significantly and impermissibly reducing or chilling speech
because most customers will not want to view adult movies inside
the booths when they no longer offer privacy. (Andrus Decl., at
5.) Fantasyland relies on Justice Kennedy's comment in his
concurring opinion in Alameda Books: "Though the inference may
be inexorable that a city could reduce secondary effects by
reducing speech, this is not a permissible strategy."
535 U.S. at 445.
Justice Kennedy concurred in the judgment but filed a separate
opinion in pertinent part because "the plurality's application of
Renton [to the facts of Alameda Books] might constitute a
subtle expansion, with which [he did] not concur." Id.
(Kennedy, J., concurring). He was concerned the analysis did not
sufficiently take into account the effect of the challenged
ordinance on speech, i.e., the proportionality. At the outset,
the government should advance some rationale or basis for a
belief "that its regulation has the purpose and effect of
suppressing secondary effects, while leaving the quantity and
accessibility of speech substantially intact." Id. at 449.
As discussed above, to the extent Fantasyland interprets the
concurring opinion as working a fundamental shift in the Renton
analysis, it is mistaken. See Alameda Books, 535 U.S. at 448
(Kennedy, J., concurring); Ctr. for Fair Pub. Policy,
336 F.3d at 1162. In Center for Fair Public Policy, the Ninth Circuit
rejected an argument similar to the one Fantasyland makes here.
The plaintiffs argued an hours-of-operation restriction reduced
the secondary effects simply by reducing speech because the
patrons prefer to frequent adult entertainment businesses during
late night hours, and the ordinance prohibited their operation at
that time. Ctr. for Fair Pub. Policy, 336 F.3d at 1162. The
court disagreed because accepting the plaintiff's argument
"cannot be squared with [Justice Kennedy's] insistence that the
central holding of Renton remains sound." Id. (internal
quotation marks and citations omitted). This is apparent from the example Justice Kennedy offered to
clarify his point:
If two adult businesses are under the same roof, and
ordinance requiring them to separate will have one of
two results: One business will either move elsewhere
or close. The city's premise cannot be the latter. It
is true that cutting adult speech in half would
probably reduce secondary effects proportionally. But
. . . a promised proportional reduction does not
suffice. . . . [¶] The premise . . . must be that
businesses . . . will for the most part disperse
rather than shut down.
Alameda Books, 535 U.S. at 451. Accordingly, the
proportionality inquiry goes to the government's premise or
rationale for the ordinance, which cannot be to reduce secondary
effects by reducing speech. Id. at 449 ("what proposition does
a city need to advance in order to sustain a secondary-effects
ordinance"), 451 ("[o]nly after identifying the proposition to be
proved can we ask the second part of the question presented: is
there sufficient evidence to support the proposition?"). Whether
there is sufficient evidence to support the rationale is a
separate inquiry. Id. at 451.
In the amended ordinance, the County stated its purpose as:
It is the purpose of this ordinance to regulate adult
entertainment establishments in order to promote
health, safety and general welfare of the citizens of
the County, and to establish reasonable and uniform
regulations to prevent the deleterious effects of
adult entertainment establishments within the County.
The provisions of this ordinance have neither the
purpose nor effect of imposing a limitation or
restriction on the content or reasonable access to
any communicative materials, including sexually
(LR, at 140-41 [Ordinance No. 9479, § 21.1801(A)].) With the
open-booth requirement specifically, the County sought to prevent
unlawful sexual activities between patrons and the resulting
spread of sexually-transmitted diseases. (LR, at 499-503,
1277-78, 1310, 1313, 1316-17, 1541.) Nothing in the record,
including Fantasyland's evidence, suggests the premise was to
preclude patrons from viewing peep shows.
Fantasyland relies on the declaration of William H. Andrus,
Vice President of Fantasyland and its parent company, who has
been closely involved with the development and operation of at
least fifty similar businesses in the United States. Mr. Andrus
offered his observations based on extensive experience that a
change from private to open viewing areas causes an immediate
drop in the amount of viewing "typically to roughly 40% of what
it was prior to the change," because "most customers disfavor
viewing sexually oriented motion pictures in an open setting."
(Andrus Decl., at 5.) Fantasyland argues Mr. Andrus' declaration
proves the open-booth requirement will significantly reduce
speech. As discussed above, this is not the relevant inquiry. The relevant
inquiry is whether reducing speech was the premise for the
open-booth requirement. Mr. Andrus' declaration does not speak to
In any event, an open-booth requirement does not reduce speech
because it does not limit what movies can be shown, and does not
preclude anyone from using the booths as a means for viewing
movies patrons can continue to watch whatever movies they want
in the open booths. Ellwest Stereo Theatres, Inc. v. Wenner,
681 F.2d 1243, 1247 (9th Cir. 1982). Other circuits have also
found open-booth requirements to be constitutional time, place,
and manner restrictions which do not substantially reduce speech.
See, e.g., Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988,
(7th Cir. 2002); Matney v. County of Kenosha, 86 F.3d 692, (7th
Cir. 1996); Bamon Corp. v. City of Dayton, 923 F.2d 470, 473
(6th Cir. 1991); Doe v. City of Minneapolis, 898 F.2d 612, 617
(8th Cir. 1990).
To the extent Fantasyland's argument is based on the economic
effect the open-booth requirement will have on its business, it
is not constitutionally cognizable. See Spokane Arcade, Inc. v.
World Wide Video of Wash., Inc., 75 F.3d 663, 665 (9th Cir.
1996). As long as there is no "absolute bar to the market . . .,
it is irrelevant whether `[a regulation] will result in lost
profits, higher overhead costs, or even prove to be commercially
unfeasible for an adult business.'" Id. at 666 (alteration in
the original) (quoting Walnut Properties v. City of Whittier,
861 F.2d 1102, 1109 (9th Cir. 1988)); see also Matney,
86 F.3d at 700. Accordingly, Mr. Andrus' declaration is insufficient to
raise a material issue of fact. See Anderson, 477 U.S. at 248.
Based on the foregoing, Fantasyland's argument is unsupported by
relevant evidence and fails as a matter of law.
B. Evidentiary Support for the Amendment
Fantasyland next argues the County lacks sufficient evidence in
support of its open-booth requirement. The main purpose for the
requirement is to prevent unlawful sexual activities between
patrons on the premises of adult arcades, and to prevent the
resulting spread of sexually-transmitted diseases. To support its
rationale for the open-booth requirement, the County cites to a
number of studies and reports in the Legislative Record
demonstrating the prevalence of unlawful sexual activities between patrons inside the closed booths and "glory
holes"*fn3 between the booths. (LR, at 499-503, 1277-78,
1310, 1313, 1316-17, 1541.) According to the County, these
studies show unprotected sex is common in adult entertainment
establishments, which promotes the spread of sexually-transmitted
diseases. (Def.'s Mot., at 22 n. 15.) Fantasyland argues the
County's evidence is shoddy because the proposition
sexually-transmitted diseases could be transmitted by the semen
left in the booths is not scientifically supported, and the
County cited to no evidence criminal activity actually takes
place in Fantasyland's booths.
Fantasyland believes the County's rationale for the open-booth
requirement is "the transmission of disease with respect to
residue from masturbation." (Pls.' Joint Mot., at 10.) Dr. John
M. Goldenring, Fantasyland's expert in public health and the
transmission of diseases, including sexually-transmitted
diseases, reviewed the relevant portions of the Legislative
Record, and was not able "to find any support for the proposition
that any sexually transmitted disease could be transmitted absent
sexual contact." (Goldenring Decl., at 7-8.) According to Dr.
Goldenring, absent direct sexual contact between the genitals of
one person and the genitals, anus or mouth of another, "the
likelihood of a [sexually transmitted disease] being transmitted
by bodily fluids, such as semen, urine or saliva existing on
surfaces is minute, nearly zero." (Id. at 5.) "Other contagious
diseases, such as influenza, the common cold, and other viruses
and bacterial infections are transmitted through saliva, but not
semen or urine." (Id.)
Dr. Goldenring's declaration is insufficient as a matter of law
to show the County relied on shoddy evidence. See World Wide
Video, 368 F.3d at 1195-96. Contrary to Fantasyland's
assumption, the record indicates the open-booth requirement is
not intended to prevent the transmission of communicable diseases
through bodily fluids, such as semen, which could be left by
patrons on surfaces inside the booths. Rather, the rationale is
based on the finding "[s]exual acts, including masturbation and
oral and anal sex, occur at unregulated adult entertainment
establishments, especially those which provide private or
semi-private booths or cubicles for viewing films or videos or
live striptease and sex shows." (LR, at 142 [Ordinance No. 9479,
§ 21.1801(B)(3)].) Furthermore, the open-booth requirement was intended to "reduce criminal activity, including illegal
public sexual activity and prostitution/pandering" as well as
"the spread of sexually transmitted diseases and other
communicable diseases" which result from illegal sexual contact.
(DeWitt Decl., Ex. B, at 3; LR, at 142-43.) Fantasyland's first
argument is therefore based on an erroneous premise.
In addition, Fantasyland claims the County has not cited any
direct or specific evidence in the Legislative Record to
substantiate its assumption criminal activity is actually taking
place at Fantasyland or as a result of Fantasyland's business.
However, the County is not required to do so. It may rely on
findings in relevant case law, as well as the experiences of
other local governments, and is not required "to conduct new
studies or produce evidence independent of that already generated
by other cities, so long as whatever evidence [it] relies upon is
reasonably believed to be relevant to the problem [it]
addresses." See Renton, 475 U.S. at 51-52. In other words, the
County was and is entitled to rely on the studies and reports of
others which are included in the record before the Court, as well
as on judicial opinions, such as Spokane Arcade and Ellwest
Stereo. Spokane Arcade and Ellwest Stereo reference and rely
upon evidence collected by other local governments on the
secondary effects associated with closed peep show or arcade
booths. See, e.g., Spokane Arcade, 75 F.3d at 664-65 (drug
usage and sexual conduct between patrons in the video booths,
concluding open booths "would reduce the potential for crime");
Ellwest Stereo, 681 F.2d at 1245 n. 1 ("[sex-related criminal
activity] occurs with great frequency in arcades where movies are
exhibited in enclosed booths"). The type of evidence considered
by the County in enacting the open-booth requirement has been
held "reasonable and relevant" in other cases. See, e.g., Dream
Palace, 384 F.3d at 1015. In sum, Fantasyland's evidence is
insufficient as a matter of law to cast direct doubt on the
evidence supporting the County's rationale for the open-booth
Last, Fantasyland argues the open-booth requirement is not
narrowly tailored because there are more effective and less
drastic means to accomplish the County's purported objectives.
Fantasyland relies on Mr. Andrus' declaration, which outlines a
number of ways to "combat sexual contacts between customers in
the viewing areas." (Andrus Decl., at 5.) For example, Mr. Andrus
suggests it would be effective to reduce the size of viewing
areas so that only one person could fit in a booth and to modify the doors so that they do not reach the floor. He also opined
open booths have "considerable drawbacks from the standpoint of
avoiding sexual contact between customers" because open booths
encourage? interaction amongst customers who are
viewing motion pictures. When viewing areas are
enclosed, customers are insulated from each other.
When the viewing areas are open, the combination of
sexually explicit motion pictures and an open
atmosphere can create a phenomenon, sometimes known
as "cruising," where homosexual males meet,
culminating in relatively anonymous sexual encounters
after they leave the business. That results in sexual
activity in the neighborhood surrounding the business
over which the business has no control.
(Andrus Decl., at 6.)
Fantasyland's argument the County's chosen means is not the
best is to no avail, however. Under intermediate scrutiny, the
government is not required to establish the means it has chosen
is the least restrictive or the most effective for addressing a
particular problem. A time, place, and manner restriction is
considered narrowly tailored if the government shows its chosen
means "serve[s] a substantial government interest," and affects
only that category of businesses shown to produce the unwanted
secondary effects. Renton, 475 U.S. at 50-52. Nor is the County
required to show the open-booth requirement will be effective in
combating the negative secondary effects. Local governments "must
be allowed a reasonable opportunity to experiment with solutions
to admittedly serious problems." Id. at 52.
The uncontradicted evidence in this case shows the open-booth
requirement is aimed at reducing unlawful sexual activities and
in preventing the resulting spread of sexually transmitted
diseases. Fantasyland does not dispute these are substantial
government interests. Furthermore, the County's regulation
directly targets only that part of adult entertainment business
which is known to "produce the unwanted secondary effects." See
Renton, 475 U.S. at 52. Fantasyland does not dispute this.
Although Mr. Andrus' declaration suggests the County could have
chosen to address its substantial interests through other means,
this is not material under the controlling law.
V. Performance Restrictions
In its complaint, Deja Vu alleges it had planned to offer nude
dancing, and had obtained the appropriate permit from the County,
when it acquired its present premises. Subsequently, the County
amended the adult entertainment ordinance to prohibit live nude
entertainment. (LR, at 155 [Ordinance No. 9479, § 21.1812(a) ("It shall be a violation of this chapter
for a patron, employee or any other person in an adult
entertainment establishment, to knowingly or intentionally appear
in a state of nudity regardless of whether such public nudity is
expressive in nature.")].) The amended ordinance does not
prohibit live semi-nude entertainment under conditions specified
therein. (Id. [§ 21.1812(b)].) Deja Vu claims prior to the
amendment, female performers did not have to wear anything more
than "pasties and a G-string." (Pls.' Joint Mot., at 12.) After
the amendment, they must wear more opaque clothing while
performing, which Deja Vu refers to as "pasties and a G-string
1. The First Amendment Claim
Deja Vu alleges the ordinance as amended violates the
First Amendment because it is unjustified based on the factual record
and relevant Supreme Court case law. The County moves for summary
judgment on Deja Vu's First Amendment claim regarding the nudity
ban, and Deja Vu cross-moves on the same claim. Specifically,
Deja Vu contends the County lacked sufficient evidence in support
of this amendment, and the amendment is not narrowly tailored.
a. Evidentiary Support for the Amendment
Deja Vu argues the evidence the County relied on in amending
the ordinance is insufficient because no evidence in the record
addresses "secondary effects attributable to non-nude dancing"
(i.e., the secondary effects associated with pasties and a
G-string plus, rather than just pasties and a G-string). (Pls.'
Opp'n, at 14.) The County relied on the Legislative Record
described above, which includes numerous studies from other
jurisdictions, experiences of other municipalities as reported in
case law, and local public testimony regarding secondary effects
such as prostitution, public sexual activity, and narcotics
trafficking. (See, e.g., LR, at 499-500, 1278, 1310, 1312,
1488-531, 1634-40.) Furthermore, the ...