TIME, PLACE, AND MANNER AND THE FIRST AMENDMENT

Transcription

1 FIRST AMENDMENT LAWYERS ASSOCIATION 2012 Winter Meeting San Diego, California TIME, PLACE, AND MANNER AND THE FIRST AMENDMENT ALLEN LICHTENSTEIN, Esquire 3315 E. Russell Rd., #222 Las Vegas, Nevada (702) STEVEN H. SWANDER, Esquire 505 Main Street, Suite 250 Fort Worth, Texas76102 (817)

2 Galardi v. City of Forest Park 2011 WL (11 th Cir. 2011) The Court of Appeals dismisses, for lack of standing, former cabaret owners appeal from a denial of TRO and preliminary injunction. The City amended its Ordinance after initial suit was filed, and denied the cabaret operators permit applications, since the Clubs premises were non-conforming to an ordinance section that prohibits private booths and rooms. The cabaret operators challenged other provisions of the adult entertainment ordinance but not the prohibition against private booths and rooms. The 11 th Circuit reasons that standing is a jurisdictional requirement and that one aspect of standing is a likelihood that an injury will be redressed by a favorable decision. A favorable decision cannot redress Appellants injury because the Ordinance required the City to reject Appellants license applications and Appellants have not challenged the provision of the Ordinance that mandated that rejection. 2

3 Ocello v. Koster 2011 WL (Missouri, 2011) Multiple Plaintiffs (adult businesses, trade groups) brought a facial challenge to Missouri s state-wideregulations of sexually oriented businesses in state court. Procedurally, the Missouri Supreme Court made a de novo review of a judgment on the pleadings granted to the State by a circuit court. The particular regulations enacted and at issue were: 1. No touch provision 2. 6 foot dancer-patron buffer zone 3. Prohibition of nudity 4. Prohibition of alcohol 5. Hours regulations (close a.m.) 6. Open booths for viewing films Each of these provisions was challenged as violative of the First Amendment and each was upheld. This is a Scott Bergthold designed Statute with criminal impact secondary effect justification provided by Richard McCleary. Michael Murray, Richard Bryant, Lou Sirkin and Jennifer Kinsley are among listed counsel. The legislative record is reviewed by the Court and the opinion recites committees hearing extensive testimony, reports from police officers, health officials, dancers, concerned citizens, business owners relating to the connection between sexually oriented businesses and detrimental secondary effectsincluding, prostitution, drugs, health and sanitary problems and decreased property values. Further, Court noted that the legislature reviewed judicial opinions, studies concerning problems associated with sexually oriented businesses, including crime inside and outside the businesses, unsanitary conditions inside the establishments and the harmful effect of such businesses on property values, and neighborhoods. 3

4 The Legislature, the opinion reveals, also considered evidence offered by opponents of the legislation, from police officers, business owners, rejecting the second effect link to crime, blight, etc. and the testimony of Daniel Linz, who disputed the validity of many of the studies, while rejecting the correlation between sexually oriented businesses and crime and other secondary effects on surrounding communities. The Court treats the enacted regulations as content neutral, citing Renton and applies intermediate scrutiny, reasoning that the regulations do not prohibit expression, and there is evidence of a secondary effects targeted purpose for the legislation. The stated purpose of the Act is to provide content neutral time, place, and manner restrictions to limit secondary effects. The Court rejects the Plaintiffs contention that the absence of a comparative analysis in terms of secondary effect impact between sexually oriented businesses and non-sexually oriented businesses means that the true purpose of the Act is to suppress sexually oriented speech. The Court finds that the Legislature properly found a link between S.O.B.s and secondary effects and need not show that S.O.B. businesses have more substantial secondary effects than other businesses. No comparative study is necessary. The Opinion also rejects comments by legislators as to a purpose to suppress sexually oriented speech, relying on O Brien, and the limits of a motive of one or two legislators to establish a legislative purpose. The Court views all of the restrictions under the evidentiary standard for time, place, and manner regulations, the validity of the regulations rise or fall based on whether the government has reasonably relied on evidence establishing the restrictions are designed to serve a substantial governmental interest. Applying the Alameda burden shifting analysis, the Court, in summary, writes: 1. The government has initial burden to show that it relied on reasonably relevant evidence, 2. Little evidence is required, 3. The evidence need not be directly related to the government s rationale as long as it fairly supports the rationale, 4. Government need not conduct new studies, 4

5 5. Government may reasonably rely on prior judicial opinions. As to the duty of the reviewing Court: 1. Deference to the superior knowledge of the Legislature (local knowledge) 2. Although initial burden is slight, the government may not rely on shoddy data or reasoning. If the government meets its initial burden, the burden shifts to the challenger: 1. To cast direct doubt on the government s rationale by either (1) demonstrating that the government s evidence does not support the rationale or (2) by furnishing evidence that disputes the government s factual findings. 2. This is a heavy burden. 3. The issue is not,forfirst Amendment purposes, whether a court would find the challenger s evidence on this issue more persuasive than the evidence relied upon by the Legislature. The government only has to show that the Legislature relied on evidence reasonably believed to be relevant, to establish a connection between the restrictions and the suppression of negative secondary effects. 4. The court is not to re-weigh the evidence. 5. The court will not look to see whether the challenger has shown an issue of fact exists as to whether the Statute s provisions will limit secondary effects. 6. The challenger must discredit all rationales (either, evidence does not support the rationale, or evidence does not support factual findings). 7. Unsystematic or anecdotal evidence, or evidence that merely attacks one type of evidence (such as a lack of controlled studies) would not be enough to cast direct doubt). If the challenger fails to cast direct doubt on the government s evidence, intermediate scrutiny is satisfied. As to the individual restrictions: Open booths No Touch 6 Foot Rule 1. Tucson study documenting unsanitary conditions in closed booths 5

6 Nudity Prohibition Alcohol Use Hours Restriction 2. Health department officials and testimony that touching is unsanitary 3. Judicial opinions 4. D.R. Linz critique of studies not relevant to this issue 1. Prohibition of conduct/not time, place or manner regulation 2. O brien is applicable 3. Supreme Court decisions upholding nudity bans ), (Pap s AM) (Barnes v. Glen Theatre, Inc.) 4. Courts of Appeal, Daytona v. Grand, Inc., 409 F3d , Peek a Boo Lounge, 630 F.3d Anecdotal evidence from dancer that dancers rub on stripper pole, lay on the floor, nude bodies exposed to bacteria 1. Court of Appeals Opinions Ben s Bar, 316 F.3d 702 (7 th Cir. 2003), more restrictive hours upheld, Schultz v. City of Cumberland, 228 F3d Anecdotal evidence of former strippers as to drug use, prostitution, grabbing of breasts, buttocks 3. Crime more prevalent at night according to studies, alcohol increases crime by lowering inhibitions 6

7 4. Conflicting anecdotal evidence cannot cast direct doubt, if both sides have reasonable relevance 5. Empirical evidence as necessary as suggested by Linz, rejected by U.S. Supreme Court, empirical evidence not required, government free to experiment 6. Linz reliance on 911 calls does not mean that victimless crimes were not occurring 7. Linz testimony only means Legislature could have reached different conclusion, not that the government s was unreasonable. 8. Linz evidence does not address crime within the businesses themselves. The government does not need to conclusively prove that its restrictions will reduce negative secondary effects, only that the evidence fairly supports the rationale for the legislation. Justice Kennedy s focus on how speech will fare under the Statute, and requiring that the government leave the regulated speech substantially intact while reducing the secondary effects of speech is reviewed by the Missouri Court as a proportionality test. The businesses argue that by restrictions reducing customers and causing revenues to decline, leading to business closures, the quantity of accessible speech is substantially reduced. The Court s rejoinder is that Justice Kennedy did not state that the government could not adopt statutes that reduced patronage or affected business income, he stated that the legislature could not adopt statutes that reduced secondary 7

8 effects only because they reduced the opportunities of speech. Moreover, Justice Kennedy s concern was with protecting opportunities to engage in protected speech, not with the economic interests of adult businesses; proportionality is not concerned with the economic impact of a statute, but rather intrinsic limitations of speech. The only restrictions that place intrinsic limitations on speech are the nudity ban, which is de minimis, and the hours restriction. The fact that the businesses will have 18 out of 24 hours a day to operate, does not substantially reduce the availability of sexually oriented speech but given the legislative record, closing the businesses at late night should substantially reduce secondary effects. The Court finds that no other restrictions in the Statute place intrinsic limitations on speech, but instead restrict opportunities for conduct that does not receive First Amendment protection, (i.e. no right to touch, or sit within a few feet of exotic dancers) to read or watch movies in a closed booth, to drink alcohol while viewing entertainment ). Finally, to the extent that the no-touch, six-foot buffer, alcohol ban and openbooth restrictions reduce patronage at sexually oriented businesses, it is not because the restrictions unduly reduce speech but because they reduce the very type of secondary effects that the government is entitled to and intends to reduce. 8

9 84 Video/Newsstand, Inc. v. Sartini 2011 WL th Cir Multi-adult-use plaintiffs sue Ohio State prosecutors to facially challenge State sexually oriented business regulations in Ohio. The two substantive restrictions are; (1) a limit on the hours of operation no operation 12:00 midnight to 6:00 a.m., unless alcohol license then 2:30 a.m. to 6:00 a.m.; (2) A no touch restriction; while a performer is nude or semi-nude, no touching of patron or vice versa. Allowing the contact is prohibited as well. An exception as to touch of one s immediate family. By way of definition, sexually oriented business, specifically an adult video store or adult bookstore, the Statute uses the significant or substantial portion language then applies it stock in trade (inventory), revenues, interior display; as to items characterized by description of specified anatomical areas and specified sexual activities. The amended definition of an adult cabaret is traditional. The Bill s (Statute) purpose is stated to address adverse secondary effects, including findings that S.O.B.s as a category of commercial useare correlated to lewdness, public indecency, prostitution, potential spread of disease, illicit drug use and trafficking, personal and property crimes, negative impact on surrounding properties, blight, litter, sexual assault, exploitation. The Ohio House Judiciary Committee heard testimony for and against the Bill, considerable documentary evidence as to secondary effects, critique of Linz studies, Sixth Circuit opinions, anecdotal statements, summaries and full texts of reports showing the adverse effects of S.O.B.s. The Trial Court denied Plaintiffs TRO, and then conducted a preliminary hearing, where the Plaintiff group presented the expert testimony of D. Daniel Linz (finding no link of S.O.B.s to unique adverse secondary effects and criticizing studies suggesting the link); and Dr. Judith Hanna, regarding the expressive aspects of erotic dance. The 9

10 Defendants called Dr. Richard McCleary, Julie Schmaltz, a former exotic dancer, and Louis Gentile, an investigator. The Trial Court denied the preliminary injunction then granted the Government a summary judgment. The 6 th Circuit reviews and rejects the businesses arguments as follows: 1. The evidence relied on by the Ohio legislature was insufficient to survive intermediate scrutiny. 2. The Statute was not narrowly tailored because it suppresses a substantial amount of speech. After first acknowledging the First Amendment protection accorded to nude dancing, and sexually explicit (but not obscene) speech, and the application of intermediate scrutiny to restrictions of protected erotic expression based on secondary effects, the Court applies the Alameda burden shifting analysis to the second prong of O Brien, whether the regulation furthers a substantial governmental interest. The Court finds that the Ohio Legislature relied on reasonably relevant evidence linking sexually oriented businesses to harmful secondary effects to meet the Government s initial Alameda burden.the Court notes that the 6 th Circuit has previously upheld similar regulations to those within the State Statute including a no touch prohibition and hours regulations, citing multiple 6 th Circuit authorities. The Plaintiffs have two main challenges to the evidence before the Legislature: (1), the expert testimony of Daniel Linz casts doubt on the secondary effect studies relied upon by the General Assembly and (2),the inadequacy of evidence to support the hours restriction. The Court holds that Linz testimony does not cast doubt on evidence relied upon by the Ohio Legislature. Linz studies in Ohio, showing no increased secondary effects for sexually oriented businesses and the flawed methodology of government land use studies, is contradicted by Dr. McCleary whose studies reveal a criminal impact of sexually oriented businesses as a scientific fact. The Court sees this as a battle of experts over how to measure crime impact, methodology, geographic area of impact, etc. While recognizing that Plaintiffs expert testimony is the proper way to cast doubt, it does not cast doubt in this case to create a fact issue. The following factors are mentioned: 10

11 1. Governments are not required to demonstrate empirically that their proposed regulations will successfully ameliorate adverse secondary effects, 2. Even suggesting a different conclusion [by the Legislature] that is also reasonable does not prove that the Government s findings were impermissible or its rationale wrong. 3. The use of Linz testimony and its effect in other cases is noted. The Court s holding thatlinz testimony is insufficient hereis based on: 1. Linz testimony does not address the entire body of evidence before the Legislature. 2. McCleary s testimony was sufficient to supplement the record. As to the hours restriction, the Court notes prior cases upholding similar restrictions and related evidence that closing sexually oriented businesses in the early morning hours could reduce secondary effects (evidence from police officer and former manager of cabaret). Dr. Linz and Dr. McCleary both testified in the district court; Linz denying that S.O.B.s attract more early morning crime, and McCleary stating that while no studies correlate the severity of adult business secondary effects with respect to certain hours of operation, crime risks generally go up at night. The Court does state that most of the evidence supporting hours restrictions relates to live entertainment establishments, but notes case law supporting similar restrictions for adult video stores. With respect to the fourth prong of O Brien, the Opinion plugs in Justice Kennedy s proportionality analysis; the Government may not seek to reduce secondary effects by reducing speech on a one to one basis. The Plaintiffs argue that the hours restriction fails the test of proportionality because: 1. There is insufficient evidence that closing between 12:00 midnight and 6:00 a.m. would significantly curtail secondary effects, 2. The hours restriction will cause a massive reduction in speech. 11

12 The Court responds by referencing the evidence of a likely reduction in secondary effects through early morning closure, and then analyzes the claim of a massive reduction as really a claim of economic impact of the law, including the fact that a majority of the business of a juice bar is done between11:00 p.m. and 4:00 a.m. The Court recited that economic impact is not directly relevant to the First Amendment inquiry. The issue is whether lost sales is indicative of the quantity of speech suppressed. The Court resolves this issue byholding that the number of hours that the businesses may remain open leaves the quantity and accessibility of protected speech substantially intact. The hours restrictions in the Statute are less restrictive than other hours of operations limits upheld by other Courts. As to the juice bars, the Court concludes: We consider the economic effects of the ordinance in the aggregate, not at the individual level; if the ordinance were intended to destroy the market for adult cabarets, it might run afoul of the First Amendment, but not if it merely has adverse effects on the individual theater. ); see also Déjà vu of Nashville, 274 F.3d at 397 ( Although we do not doubt that compliance with the Ordinance will cut into the plaintiffs profits, the plaintiffs have failed to introduce any evidence showing that they will not have a reasonable opportunity to operate their establishments. 12

13 Combs v. Texas Entertainment Association 347 S.W.3d 277 (Tex. 2011) The Texas Supreme Court holds that the five dollar ($5.00) per patron fee (tax) to enter an adult cabaret, that allows the consumption of alcohol, may be justified under O Brien as a content neutral restriction on protected speech designed to reduce harmful secondary effects. While the stated legislative purpose for the five dollar fee was to raise revenue, the litigation borne defense of the statute was, that it was enactedas a manner regulation to reduce secondary effects, associated with the combination of nudity and alcohol. The Texas high court referenced the approach of the Utah Supreme Court in Bushco v. Utah State Tax Commission, which upheld a 10% gross receipts tax on businesses in which individuals perform services while nude or partially nude. The Texas tax applies to sexually oriented businesses defined as; A sexually oriented business is specially defined as a nightclub, bar, restaurant, or similar commercial enterprise that: (A) provides for an audience of two or more individuals live nude entertainment or live nude performances; and (B) authorizes on-premises consumption of alcoholic beverages, regardless of whether the consumption of alcoholic beverages is under a license or permit issued under the Alcoholic Beverage Code. The Opinion, following the lead of Bushco, then recites the facts and holdings of two U.S. Supreme Court cases,city of Erie v. Pap s AMand Alameda. Using these two cases as a guide, the Court determines that the fee on nude or topless entertainment is not content based, since it is aimed at the secondary effects of the expression in the presence of alcohol. Even though the Court recognizes that Pap s AM involved a statute prohibiting public nudity, and not targeting content, Pap sjustification, to reduce secondary effects, 13

14 is applicable to the fee. In response to the challengers argument that the fee in no way reduces secondary effects, the Court opines that the fee provides some discouragement to combining nude dancing with alcohol consumption. This is analogous to the de minimis restriction in Pap s,since the fee is so small as unlikely to reduce secondary effects, but small impact was not problematic to the Supreme Court in Pap s. The argument that a tax is not similar to the zoning type regulation at issue in Alameda and the specific rejection of the use of a tax to reduce secondary effects stated by Justice Kennedy concurringin Alameda, is met with the Court s determination that Justice Kennedy did not suggest that a fee like the one now before us would never be permissible. The fee is not a tax on unpopular speech but a restriction on combining nude dancing, which unquestionably has secondary effects, with the aggravating influence of alcohol consumption. Finally, since the fee is not intended to suppress expression, the Court applies O Brien to uphold the Statute as content neutral. A petition for certiorari was filed by Bob Corn-Revere, but unfortunately, denied, so it is back to the Trial Court on highly entertaining State constitutional issues. 14

15 1Peterson v. City of Florence, Minn 2011 WL (D.Minn.) D.Minn.,2011 Plaintiff opened a juice bar with nude and semi-nude dancing. On opening day it was issued a citation for violation of two municipal ordinances. The first was an anti-blight ordinance that restricted adult businesses to C-2 zones and contained distance requirements from certain sensitive other uses. A second, passed a month later in 2008, that banned all commercial businesses from the municipality. The court ruled the anti-blight citation to be moot and ruled against plaintiff s TRO and PI motions on the likelihood of success on the merits prong. The municipality itself comprised only about.2 square miles, with 16 residential structures and 36 residents. The court cited Schad v. Borough of Mouth Ephraim, 452 U.S. 61, 76 (1981), for its ruling that: the Supreme Court expressly left open the question, stating that it may very well be true that allowing live entertainment in reasonably nearby areas outside the limits of a primarily residential community, while prohibiting the same activity in the municipality itself, would be quite legal where county-wide zoning exists. The fact that the zoning regulation at issue did not target adult businesses, but instead, banned all commercial enterprises, was a factor in the decision. It raises concern as one more case where a municipality can ban adult businesses on the grounds that they can be located in another place or jurisdiction. *** Entertainment Productions, Inc. v. Shelby County, Tenn. Slip Copy, 2011 WL W.D.Tenn.,2011. The issue in this case involves the application of secondary effects-based restrictions, including licensing and prohibitions on manner of dancing, to establishments that did not have nudity or semi-nudity, but instead, establishments with dancers clad in bikinis. Both Dan Linz and Richard McCLeary presented testimony. The court skirted the issue of the fact that there exists a paucity of evidence linking bikini bars to any adverse secondary effects. Instead, it focused on whether adult businesses cause secondary effects in general, quoting Justice Souter s concurrence in Barnes, that: legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects. 15

16 It utilized the reasoning of the 6 th Circuit in Richland Bookmart, Inc. v. Knox County, Tenn. 555 F.3d 512 (6 th Cir. 2009) noting that the Richland court upheld the ordinance despite the fact that at least a subset of the businesses regulated by the Ordinance [had] not in fact generated any adverse secondary effects in Knox County. Instead, the court ruled that: Defendants in this case need not point to studies which included analyses of socalled briefly attired erotic entertainment. Rather, so long as the cumulative evidence of secondary effects documented in the legislative record fairly supports the State's and County's rationale in regulating such entertainment, Defendants have met their burden. According to this logic, as long as they are is some generalized legislative history showing findings of adverse secondary effects of adult businesses in general from wherever and whenever the total lack of evidence that a specific type of business is in any way associated with those types of secondary effects, is irrelevant, as long as the legislative body can point to some reasonable linkage however undefined that standard is. If followed to its logical conclusion, the reasoning of this court s decision would make it virtually impossible to challenge any time place and manner regulation based on the assumption of adverse secondary effects, as the presumption of those effects as a given, could not be disturbed by anything as mundane as real evidence. *** ABCDE Operating, LLC v. City of Detroit 2011 WL E.D.Mich., Plaintiffs challenged parts of Detroit s city code involving erotic dance, specifically requirements that: Semi-nude performers are required to remain on a non-portable fixed stage at least 18 inches high (Section (a)(3)); Performances are required to take place in a room of at least 600 square feet (Section (a)(3)); The room in which performances are to take place is required to have an unobstructed view of every area of the room (Section (a)(3)); and Employees (including performers) in sexually-oriented businesses are required to obtain an annual license fee. (Section and 43). Those desiring to operate an adult cabaret are required to obtain a license and pay an annual license fee. (Sections and 23). 16

17 Intentional touching of the body or clothing between semi-nude employees and patrons is prohibited. (Section (a)(4)). The court utilized a burden shifting analysis from Alameda Books. It did so, however, in a manner that makes it virtually impossible to mount a successful challenge. In creating the regulations, the city relied on numerous land-use studies, police crime reports, judicial opinions, anecdotal data, and citizen testimony, when it determined that passing the amendments would advance the stated purpose. It also relied on Young v. American Mini Theaters, for the proposition that ordinances regulating SOBs in Detroit have been upheld under the negative secondary effects rationale since as far back as Plaintiffs challenge these findings with information from and articles written by Dan Linz, which the Court totally discounted. The articles are generic in nature, arguing for a general proposition that SOBs do not cause negative secondary effects. The articles cannot carry the day. They are anecdotal and unsystematic which are not sufficient to sustain plaintiffs' burden. As the City notes, several other courts have rejected Dr. Linz's studies, finding them insufficient to rebut evidence of secondary effects. The upshot of all this is support for the premise that the government need not rely on any scientific evidence to demonstrate its assertion of secondary affects, but that evidence challenging the government s assertions will generally be discounted. *** Comite de Jornaleros de Redondo Beach v. City of Redondo Beach 657 F.3d 936 (9 th Cir. 2011) Although this case did not address any adult usage, it still provides an interest in analysis for time place and manner regulations. An organization representing day laborers challenged a city ordinance that prohibited them from soliciting work from city sidewalks. Plaintiff facially challenged the ordinance on overbreadth grounds. The en banc panel acknowledged that the speech in question, including signs asking for work, is constitutionally protected, and that the sidewalks in question constitute a public forum. The court embarked on intermediate level scrutiny, viewing the challenged ordinance as a time place and manner regulation, even though the target of the restrictions involved specific content. No real explanation of the choice of intermediate level scrutiny was made in the written decision. ( Because the Ordinance regulates protected speech in a public forum, we apply the time, place, and manner test:...) Thus, the overbreadth challenge was addressed within the narrow tailoring prong of the time place and manner test. The court struck down a city ordinance because it restricted far more than the rationale mandated, which was to prevent interference with the vehicular traffic. The restriction prevented more than just cars stopping to engage in conversations with the day laborers concerning hiring them. 17

18 The contrast between this analysis and the secondary effects approach used to restrict adult businesses is obvious. Outside of the adult context, government will be required to actually show a nexus between the purported harms and the restrictions enacted to combat them. The fact that a time place and manner restriction applied to adult businesses can be upheld even with the acknowledgment that a purported harmless cannot be linked to a significant segment of the restricted speech does not appear to apply in a non-sexually oriented business circumstance. *** Borough of Sayreville v. 35 Club L.L.C. --- A.3d ----, 2012 WL N.J., Here, the Supreme Court of New Jersey made the determination that when evaluating a claim of a lack of at what alternative locations for an adult business within the context of a zoning restriction, the court can look to potential available sites in a different neighboring state. Here, the New Jersey court specifically said that potential available sites in Staten Island, New York, can be considered part of the relevant market. New Jersey, unlike most states, has statewide zoning as it relates to adult businesses. Therefore, the question is generally more of analysis of the relevant market area rather than dismiss it to local jurisdiction itself. Thus, the court reasoned, that if locations in a neighboring state are part of the relevant market area, and then that fact may be part of the available alternative analysis, citing four rationales. 1. It may be more convenient for some New Jersey residents to travel across the bridge to Staten Island than to Sayreville. 2. Patrons of adult businesses often like to go across state lines of their entertainment. 3. Since New Jersey has adopted a statewide zoning system, artificial restrictions such as state boundaries should not be dispositive, and instead the analysis should be left to experts. 4. Respecting a market analysis to only New Jersey would discriminate against municipalities in the middle of the State that would necessarily have a much wider relevant market area. The court skirted around the obvious question of the fact that while New Jersey has a statewide adult zoning scheme where New Jersey citizens have leased the input available through the ballot box, in contrast to the total lack of any input into out-of-state regulations. It also avoided any significant discussion about how other states regulations might affect the availability of alternatives in the context of New Jersey. While the court stated that it was not giving its stamp of approval on any approach that would say that New Jersey could essentially export a 18

19 significant amount of its adult businesses out of the state, it ruling certainly leaves open that possibility. *** Mattingly v. City of New Albany Slip Copy, 2012 WL S.D.Ind., Two plaintiffs challenged a city ordinance that involved several provisions regarding adult businesses including: civil disability, lighting, requirement that dancing occur on a stage, due process, and no touching. The city, represented by Scott Bergthold, moved for summary judgment. Neither plaintiff responded to the motion one of them presumably because he had died. Despite this fact, the Court felt compelled to rule on the merits even though it had only one side of the argument. Plaintiffs' failure to respond may subject the motion to summary ruling. The Court feels that this approach is warranted, given Plaintiff's repeated disregard for deadlines. Nonetheless, for the sake of thoroughness, the Court will also briefly trace the reasoning behind its ruling that the Ordinance is constitutional as a matter of law. Not surprisingly, the court ruled in favor of the city. As for the civil disability provisions, citing FW/PBS, the court noted that no plaintiff met the criteria stated in the ordinance and therefore none had any standing to challenge it. However, the court decided that they were constitutional regardless. *** 2302 N. Truman Entertainment Mgmt., LLC v. City of Peverly, Mo WL E.D.Mo., 2011 Plaintiff opened a non-adult business over the objections of local government. Plaintiff provided the city with a description of the business showing that it involved the sale of lingerie, underwear, and novelties and none of the novelties will visually depict any part of the human anatomy. The city still refused to license, so the business open to anyway. It prevailed, based on the fact that the licensing scheme used by the city involved unfettered discretion, and a preliminary injunction was issued. One curious argument made by the city was that the license application was defective because it was made in the name of 2302 N. Truman Ent. Mgmt., LLC d/b/a Pure Pleasure, i.e., not in Plaintiff's true corporate name of 2302 N. Truman Entertainment Mgmt., LLC. The court ruled that abbreviations were acceptable. 19

20 20