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FANTASYLAND VIDEO, INC. v. COUNTY OF SAN DIEGO

June 14, 2005.

FANTASYLAND VIDEO, INC., Plaintiff,
v.
COUNTY OF SAN DIEGO, Defendant. TOLLIS, INC. and 1560 N. MAGNOLIA AVE., LLC, Plaintiffs, v. COUNTY OF SAN DIEGO, Defendant.



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 JUDGMENT;
INJUNCTION; and
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 regulations.

Background

  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 2002.

  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.

  Discussion

  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 addresses.
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 remain available.
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 cross-motion.

  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. . . ." (Id.)

  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 problem" addressed.
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 correct.

  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 found:
[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 9 a.m.
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 as follows:
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 booth.
(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 oriented materials.
(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 this inquiry.

  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 requirement.

  C. Narrowly Tailored

  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

  A. Nudity Ban

  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 plus." (Id.)

  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 ...


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