Castellanos v. City of Reno ( 2024 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 CATHERINE CASTELLANOS, et al., Case No. 3:19-cv-00693-MMD-CLB 7 Plaintiffs, ORDER v. 8 CITY OF RENO, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiffs sued Defendants to challenge the City’s regulations affecting adult 13 interactive cabarets (“AICs”) and AIC performers (commonly known as strip clubs and 14 strippers, respectively).1 Before the Court are Defendants’ motion for partial dismissal 15 under Federal Rule of Civil Procedure 12(b)(1) (ECF No. 98)2 and motion for partial 16 summary judgment (ECF No. 92).3 As explained below, the Court denies the partial 17 motion to dismiss and grants the motion for partial summary judgment. 18 II. BACKGROUND 19 Plaintiffs are AIC performers and were between the ages of 18 and 21 years old 20 at the commencement of this action. (ECF No. 1 at 1-2.) Plaintiffs challenge the May 8, 21 2019 amendments to the Reno Municipal Code (“RMC” or the “Code”), RMC §§ 5.06.050- 22 5.06.110—particularly the minimum age restriction under RMC § 5.06.080(b)—and assert 23 four causes of action: (1) “Equal Protection – Gender Discrimination”; (2) “Equal 24 25 1Plaintiffs are Catherine Castellanos, Lauren Courtney, Rachael Jasper, Brianna Morales, Victoria Rachet, Lily Stagner, Natalee Wells, and Cecelia Whittle. Defendants 26 are the City of Reno (the “City”) and Michael Chaump. The Court previously dismissed Plaintiff Maryann Rose Brooks, an AIC patron, without prejudice from this action for failure 27 to demonstrate standing. (ECF No. 89 at 9.) 28 2Plaintiffs responded (ECF No. 101), and Defendants replied (ECF No. 102). 2 and (4) “Denial of Due Process – NRS 237.080 and 237.090.” (Id. at 27, 32, 35, 37.) 3 The Court previously dismissed Plaintiffs’ equal protection gender discrimination 4 claim without prejudice for lack of standing (ECF No. 73 at 25) and declared RMC § 5 5.06.080(b) as void (id. at 15). After Defendants moved for reconsideration, the Court 6 vacated its prior order to the extent it granted summary judgment declaring that RMC § 7 5.06.080(b) is void. (ECF No. 89 at 9.) The Court also dismissed without prejudice 8 Plaintiffs’ claims to the extent they challenge RMC §§ 5.06.050-5.06.110, except for RMC 9 § 5.06.080(b) for damages, for failure to demonstrate standing to assert those claims. 10 (Id.) 11 III. DISCUSSION 12 The Court first addresses the Rule 12(b)(1) motion, then the motion for partial 13 summary judgment. 14 A. Rule 12(b)(1) Motion for Partial Dismissal 15 Defendants move to dismiss Plaintiffs’ damages claim for the fourth cause of 16 action—denial of due process—as to RMC § 5.06.080(b). (ECF No. 98 at 2.) Defendants 17 argue that Plaintiffs lack standing to assert that claim, which requires dismissal for lack of 18 subject matter jurisdiction under Rule 12(b)(1). (Id. at 3.) As an initial matter, the Court 19 finds unpersuasive Plaintiffs’ counterargument that this motion is untimely (ECF No. 101 20 at 2, 5) because Article III standing is a jurisdictional question that may be raised at any 21 time, see Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011). 22 As to standing, Defendants make several interrelated arguments: (1) Plaintiffs 23 have no redressable injury and their damages claim is not ripe for review because existing 24 state law—NRS §§ 202.030 and 202.060—mandates the age requirement in RMC § 25 5.06.080(b); (2) Nevada state law preempts any contrary law previously or currently 26 adopted by the City; and (3) any damages remedy will not change the application of state 27 law imposing the same restrictions upon Plaintiffs. (ECF No. 98 at 5-7.) 28 2 Court how conflict preemption leads to the conclusion that Plaintiffs’ damages claim is not 3 ripe or that there is no redressable injury. Regardless of whether Nevada state law 4 preempted the City’s prior provision allowing adults under 21 years of age to perform at 5 an AIC serving alcohol or whether it preempts RMC § 5.06.080(b), those provisions were 6 and are in effect such that the City had issued AIC performer business licenses to adults 7 under 21 years old4—including Plaintiffs—and then effectively prohibited those 8 individuals from continuing to perform at AICs in Reno under RMC § 5.06.080(b). Plaintiffs 9 therefore suffered a plausible injury in fact—loss of income—from the City’s actions. The 10 City cannot now use the doctrine of conflict preemption to pretend that its actions under 11 its own provisions it followed could not have caused such injury. Under their remaining 12 claim for damages as to the due process claim, Plaintiffs are seeking compensatory 13 damages for past injuries, not challenging the application of laws imposing age 14 restrictions on them. And indeed, a damages remedy could redress Plaintiffs’ alleged 15 injuries. 16 Accordingly, the Court denies Defendants’ Rule 12(b)(1) motion to dismiss 17 Plaintiffs’ damages claim for denial of due process as to RMC § 5.06.080(b).5 To the 18 extent Defendants contend “there is arguably no procedural defect under the business 19 impact statement requirements” (ECF No. 102 at 5), the Court reminds Defendants that 20 it already ruled on this question and found that the City’s relevant business impact 21 22 23 4As Plaintiffs point out (ECF No. 101 at 8), during briefing at the attempted class certification stage of this case, both parties made reference to a confidential list produced 24 by Defendants containing 44 names of female adults under 21 years old to whom the City had issued business licenses to perform in an AIC before the passage of RMC § 25 5.06.080(b). (ECF No. 52 at 3; ECF No. 55 at 5; ECF No. 49-1 at 3.) The Court may consider such evidence because “[w]hen a district court rules on a Rule 12(b)(1) motion, 26 unlike a 12(b)(6) motion, it may consider affidavits or other extra-pleading evidence.” United States v. LSL Biotechnologies, 379 F.3d 672, 700 n.13 (9th Cir. 2004) (citation 27 omitted). 28 5Having so decided, the Court need not—and does not—address Plaintiffs’ 2 Plaintiffs’ damages caused by that due process violation still remains. 3 But to be clear, Plaintiffs’ damages claim under the fourth cause of action is only 4 proceeding as to five Plaintiffs—Castellanos, Courtney, Jasper, Rachet, and Stagner— 5 because the Court now finds that Plaintiffs Morales, Wells, and Whittle lack standing to 6 assert this claim.6 The Court previously ruled that Morales, Wells, and Whittle have been 7 deemed to have admitted that they did not obtain AIC performer business licenses.7 (ECF 8 No. 60 at 9 n.6; ECF No. 46 at 4.) Plaintiffs themselves appear to concede that Morales, 9 Wells, and Whittle do not have viable damages claims by excluding them by name when 10 stating in their response to Defendants’ motion for partial summary judgment that “Plaintiff 11 Dancers, Catherine Castellanos, Lauren Courtney, Rachael Jasper, Victoria Rachet, and 12 Lily Stagner, continue to have a valid claim for monetary damages.” (ECF No. 96 at 15.) 13 In any event, because Morales, Wells, and Whittle have been deemed to have admitted 14 that they did not obtain AIC performer business licenses, they could not have legally 15 suffered an injury, such as a loss of income, from the passage of RMC § 5.06.080(b).8 16 Accordingly, the Court dismisses Morales, Wells, and Whittle’s claim under the fourth 17 cause of action for lack of standing. 18 B. Motion for Partial Summary Judgment 19 Defendants move for partial summary judgment as to Plaintiffs’ second and third 20 causes of action—their equal protection age discrimination claim and regulatory taking 21 without just compensation claim. (ECF No. 92 at 2.) The Court analyzes each in turn 22 further below. 23 24 6Article III standing is a jurisdictional question that may be raised at any time, that 25 cannot be waived, and that district courts may consider sua sponte. See Chapman, 631 F.3d at 954. 26 7Defendants correctly point this out in their motion for partial summary judgment 27 albeit as to a different claim. (ECF No. 92 at 20.) 28 8To the extent Plaintiffs have made other standing arguments as to these Plaintiffs, 2 unresponsive to Defendants’ motion, attempts to re-hash arguments and claims that the 3 Court already dismissed, and is generally unpersuasive and unhelpful to the Court. First, 4 Plaintiffs confusingly argue that Defendants’ motion attempts to limit the Court’s review 5 to just the original complaint and that it is too late for Defendants to make this motion 6 based solely on the pleadings. (ECF No. 96 at 5-6.) To be clear, Defendants’ motion 7 properly relies on evidence in the record, the Court will look at the entire record where 8 relevant at this summary judgment phase, and Defendants’ motion was timely filed in 9 accordance with the Court’s deadlines (ECF No. 83 (scheduling order); ECF No. 89 at 10 10 (leave to file renewed dispositive motions)). Moreover, it is appropriate that Defendants’ 11 motion substantially concerns questions of law regarding Plaintiffs’ claims and theories 12 as alleged in the complaint, particularly where there does not appear to be any material 13 factual disputes. 14 As if to challenge the Court’s prior rulings on standing, rather than specifically 15 respond to Defendants’ motion, Plaintiffs appear to argue that: (1) they have standing to 16 assert all their claims as to all of the RMC Chapter 5.06 amendments (ECF No. 96 at 7, 17 11); (2) they have standing to request injunctive relief as to RMC § 5.06.080(b)9 (id. at 18 10-11); (3) Plaintiff Brooks has a claim for nominal damages (id. at 15); and (4) they have 19 standing to claim all of the amendments void under NRS § 237.140 due to the inadequate 20 business impact statement (id. at 18). The Court already gave Plaintiffs an opportunity to 21 demonstrate standing where the Court had concerns (ECF No. 73 at 26) and has 22 previously ruled that: (1) Plaintiffs did not maintain standing to seek declaratory and 23 injunctive relief as to RMC § 5.06.080(b) under their business impact statement claim 24 (ECF No. 89 at 6); (2) Plaintiffs failed to demonstrate standing to challenge all of the other 25 RMC Chapter 5.06 amendments (id. at 9); and (3) Plaintiffs have failed to demonstrate 26 why Brooks has standing to challenge any of the amendments (id.). The Court therefore 27 9To the extent this broad argument was directed at Defendants’ arguments as to 28 Plaintiffs’ lack of standing to assert their equal protection age discrimination claim, it is 2 extent they challenge RMC §§ 5.06.050-5.06.110, except for RMC § 5.06.080(b) for 3 damages. (Id.) Plaintiffs now present many of the same conclusory arguments that the 4 Court already found unpersuasive, as well as arguments improperly raised for the first 5 time that could have been raised earlier. The Court disregards all of these arguments on 6 these already resolved issues.10 7 Plaintiffs also confusingly argue that “vacating the prior declaratory judgment that 8 RMC 5.06.080(b) is void under NRS 234.140 creates a chilling effect on First Amendment 9 rights because it is now uncertain whether Plaintiffs must obey that statute.” (ECF No. 96 10 at 14.) To be clear, because the Court vacated its prior order to the extent it declared 11 RMC § 5.06.080(b) void (ECF No. 89 at 6, 9), RMC § 5.06.080(b) has not been declared 12 void and is currently in effect. There should further be no such uncertainty because, as 13 far as these Plaintiffs are concerned, the minimum age restriction in RMC § 5.06.080(b) 14 no longer even applies to them as they are all at least 21 years old.11 (Id. at 4 n.4.) 15 16 17 18 19 20 10The proper vehicle for Plaintiffs’ challenge to the Court’s prior rulings would have 21 been a motion for reconsideration. By presenting such arguments in their opposition to summary judgment, Plaintiffs violate LR IC 2-2, which states, “[f]or each type of relief 22 requested or purpose of the document, a separate document must be filed and a separate event must be selected for that document.” But in any event, Plaintiffs’ arguments fail to 23 meet the reconsideration standard. See Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (“Reconsideration is appropriate if the district court (1) is presented 24 with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”); Brown v. 25 Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005) (“A motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which 26 the court already has ruled.”). 27 11The Court cautions Plaintiffs’ counsel not to waste its time and resources with briefing that is unresponsive and that appears to feign ignorance of the Court’s prior 28 rulings. Claim12 2 3 The Court first addresses Defendants’ standing arguments as to the second cause 4 of action, then the merits of Plaintiffs’ two theories of equal protection violation under this 5 claim. 6 a. Standing 7 Defendants first argue that Plaintiffs lack standing to assert their equal protection 8 age discrimination claim because it is based on the minimum age restriction and all 9 Plaintiffs are now over 21 years old. (Id. at 11.) The Court agrees with Defendants but 10 only to the extent that Plaintiffs are requesting declaratory or injunctive relief under this 11 claim. The Court incorporates by reference its analysis in its prior order granting 12 Defendants’ motion for reconsideration and determining that Plaintiffs have “aged out” 13 and no longer have standing to seek declaratory relief voiding the minimum age restriction 14 under their due process claim. (ECF No. 89 at 3-5.) For the same reasons, the Court finds 15 that, because Plaintiffs are all over 21 years old, they no longer maintain standing to seek 16 declaratory relief in challenging the minimum age restriction under their equal protection 17 age discrimination claim. 18 As for Plaintiffs’ standing to seek damages under this claim, Defendants argue that 19 Plaintiffs also lack standing to seek compensatory relief because when the City 20 conformed its Code to NRS § 202.030,13 its action did not exacerbate or impact Plaintiffs’ 21 inability to work in an AIC under state law. (ECF No. 92 at 13.) This argument is essentially 22 a reformulation of Defendants’ “conflict preemption” argument made in their Rule 12(b)(1) 23 motion to dismiss, which the Court found unpersuasive as discussed above. Again, even 24 12Plaintiffs’ second cause of action is styled as an “equal protection age 25 discrimination” claim (ECF No. 1 at 32), but it appears to include a hybrid equal protection and First Amendment claim not involving age discrimination. The Court therefore 26 construes, as Defendants do (ECF No. 92 at 4), that Plaintiffs are alleging two separate theories under the second cause of action. 27 13NRS § 202.030 “punishe[s] by fine” any person under 21 years of age who 28 “loiter(s) or remain(s) on the premises of any saloon where spirituous, malt or fermented 2 the City’s actions before and through the enactment of RMC § 5.06.080(b) did in fact 3 materially impact Plaintiffs’ ability to work in an AIC and plausibly caused a loss of income. 4 The Court therefore finds that Plaintiffs have standing to seek damages for their equal 5 protection age discrimination claim and next analyzes the merits of this damages claim. 6 b. Equal Protection and Age Discrimination 7 “The Equal Protection Clause of the Fourteenth Amendment commands that no 8 State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ 9 which is essentially a direction that all persons similarly situated should be treated alike.” 10 City of Cleburne v. Cleburne Living Or., 473 U.S. 432, 439 (1985). Plaintiffs allege that 11 “[o]n its face RMC 5.06.080(b) distinguishes and treats differently adults over 21 from 12 adults under 21” who seek to perform at an AIC serving alcohol. (ECF No. 1 at 19.) 13 Defendants argue that this claim fails because the City has a rational basis to treat these 14 groups differently as a legislative classification based on age and under the secondary 15 effects doctrine. (ECF No. 92 at 13.) Plaintiffs counter that strict scrutiny or intermediate 16 scrutiny applies because RMC Chapter 5.06 regulates First Amendment-protected erotic 17 dancing.14 (ECF No. 96 at 19.) 18 Defendants correctly point out that the Supreme Court has held that “[s]tates may 19 discriminate on the basis of age without offending the Fourteenth Amendment if the age 20 classification in question is rationally related to a legitimate state interest.” See Kimel v. 21 Fla. Bd. of Regents, 528 U.S. 62, 83 (2000). On the other hand, Plaintiffs vaguely but 22 appear to argue that RMC 5.06.080(b) is a content-based restriction on First Amendment 23 speech—specifically topless female dancing—because it applies only to AICs serving 24 25 14The Court again reminds Plaintiffs that it has already dismissed Plaintiffs’ claims to the extent they challenge the provisions of RMC Chapter 5.06 other than RMC § 26 5.06.080(b) for failure to adequately demonstrate standing. The Court therefore disregards Plaintiffs’ arguments that RMC § 5.06.090 violates the Fourth Amendment. 27 (ECF No. 96 at 20-21). In any event, that argument is unpersuasive because it is not tethered at all to Plaintiffs’ underlying complaint, which does not allege a Fourth 28 Amendment violation nor even specifically mention RMC § 5.06.090. 2 No. 96 at 19.) 3 “A law is content-based rather than content-neutral if ‘the main purpose in enacting 4 it was to suppress or exalt speech of certain content, or it differentiates based on the 5 content of speech on its face.’” Long Beach Area Peace Network v. City of Long Beach, 6 574 F.3d 1011, 1024 (9th Cir. 2009) (quoting A.C.L.U. of Nevada v. City of Las Vegas, 7 466 F.3d 784, 793 (9th Cir. 2006)). Plaintiffs make no further argument about how RMC 8 § 5.06.080(b) meets this definition, and the Court finds that on its face it differentiates 9 based on age but not on content of speech.16 The Court is also not persuaded that RMC 10 § 5.06.080(b)’s “main purpose” was to suppress speech of certain content, given the 11 City’s stated purpose of “protect[ing] those under the age of 21 from remaining and 12 loitering in saloons where alcohol is served on premises” (ECF No. 92 at 15) and the fact 13 that RMC § 5.06.080(b) does not prohibit most adults—those 21 years of age and older— 14 from engaging in topless female dancing at an AIC serving alcohol. Accordingly, the Court 15 finds that RMC § 5.06.080(b) is not a content-based restriction and rational basis review 16 applies. 17 Defendants assert that RMC § 5.06.080(b) is “rationally supported by the City’s 18 and State’s inherent police powers to uphold the public’s health, safety, and general 19 welfare and to protect those under the age of 21 from remaining and loitering in saloons 20 where alcohol is served on premises.” (Id.) “The rationality commanded by the Equal 21 Protection Clause does not require States to match age distinctions and the legitimate 22 interests they serve with razorlike precision.” Kimel, 528 U.S. at 83. “[W]hen conducting 23 24 15Plaintiffs’ additional footnote that the Nevada Constitution purportedly requires “heightened or intermediate scrutiny on the allegations of government age and 25 sex/gender discrimination” (ECF No. 96 at 19 n.18) is irrelevant here, as these are plainly federal constitutional law claims. 26 16RMC § 5.06.080(b) states: “No person, whether patron, performer, or otherwise, 27 under the age of 18 years shall be admitted to, or permitted to remain on the premises of, an adult interactive cabaret. No person, including employees and performers, under the 28 age of 21 years shall be admitted to, or allowed to remain on the premises of, an adult 2 varying treatment of different groups or persons is so unrelated to the achievement of any 3 combination of legitimate purposes that we can only conclude that the [government's] 4 actions were irrational.’” Id. at 84. “[B]ecause an age classification is presumptively 5 rational, the individual challenging its constitutionality bears the burden of proving that the 6 ‘facts on which the classification is apparently based could not reasonably be conceived 7 to be true by the governmental decisionmaker.’” Id. (citations omitted). 8 The Court cannot conclude that the City’s actions were “irrational.” The Court finds 9 that the City’s stated purposes of upholding the public’s health, safety, and general 10 welfare and of protecting those under 21 years old are legitimate and sufficiently related 11 to RMC § 5.06.080(b), which prohibits any person under 21 years of age from being 12 admitted or allowed to remain on the premises of an AIC serving alcohol. Simply because 13 RMC § 5.06.080(b) only regulates AICs—which the City has argued was meant to bring 14 the Code into compliance with Nevada state law—does not render the City’s passage of 15 RMC § 5.06.080(b) irrational. Plaintiffs have not met their burden to demonstrate that the 16 City’s basis for the age classification “could not reasonably be conceived to be true.” See 17 Kimel, 528 U.S. at 84. Accordingly, the Court finds that Plaintiffs’ equal protection age 18 discrimination claim fails as a matter of law. 19 c. Equal Protection and First Amendment 20 Plaintiffs also appear to allege that, under RMC 5.06.080(b), adults under 21 years 21 old who seek to perform in an AIC serving alcohol are unconstitutionally treated 22 differently—i.e., denied their First Amendment right of free expression to perform as an 23 AIC dancer—from adults under 21 years old who are permitted to work at non-AIC 24 businesses serving alcohol (e.g., restaurants). (ECF No. 1 at 19, 32-33). Defendants 25 argue that this theory fails because the two groups that Plaintiffs seek to compare are not 26 similarly situated. (ECF No. 92 at 16.) Plaintiffs do not respond directly to this argument. 27 As explained below, the Court agrees with Defendants. 28 2 groups.” Country Classic Dairies, Inc. v. Milk Control Bureau, 847 F.2d 593, 596 (9th Cir. 3 1988). “The groups must be comprised of similarly situated persons so that the factor 4 motivating the alleged discrimination can be identified.” Thornton v. City of St. Helens, 5 425 F.3d 1158, 1167 (9th Cir. 2005); see also Freeman v. City of Santa Ana, 68 F.3d 6 1180, 1187 (9th Cir. 1995), as amended on denial of reh’g and reh’g en banc (Dec. 29, 7 1995) (“[I]t is necessary to identify a ‘similarly situated’ class against which the plaintiff’s 8 class can be compared.”). 9 Under this theory, the alleged differential treatment is that adults under 21 years 10 old who seek to perform in an AIC serving alcohol are denied their right to engage in 11 topless female dancing. However, that theory fails because the alleged comparison 12 group, adults under 21 years old who work at non-AIC businesses serving alcohol, 13 similarly do not have a right to engage in topless female dancing at their places of 14 employment because those establishments are not AICs. See Thornton, 425 F.3d at 1167 15 (finding groups are not similarly situated where “the City is not imposing a burden on the 16 [first group] that it does not also impose on [the second group]”). Stated differently, 17 Plaintiffs’ comparison groups are not similarly situated because they are not seeking to 18 work at similarly situated establishments—the key difference being that AIC 19 establishments are required to obtain a specific AIC operator’s license under RMC § 20 5.06.030 that other establishments are not. See id. (finding groups not similarly situated 21 where “there is nothing in the record to indicate that any of the other businesses . . . are 22 either sufficiently comparable . . . or subject to the same state licensing requirements”). 23 Accordingly, because Plaintiffs fail to satisfy the first prong of the equal protection 24 analysis, the Court finds that their hybrid equal protection and First Amendment claim 25 fails as a matter of law. 26 2. Regulatory Taking Without Just Compensation Claim 27 As to Plaintiffs’ third cause of action, Defendants first argue that Plaintiffs Morales, 28 Wells, Whittle, and Courtney lack standing to assert this claim because they did not hold 2 RMC § 5.06.080(b) went into effect on May 8, 2019. (ECF No. 92 at 20.) Plaintiffs do not 3 directly address this argument nor do they dispute that these four Plaintiffs did not hold 4 an active AIC performer business license at that time. 5 Under this claim, Plaintiffs allege that by the enactment of the May 8, 2019 6 amendments, in particular RMC § 5.06.080(b), Defendants have “deprived” Plaintiffs of 7 “all economically viable use” of their AIC performer licenses and taken Plaintiffs’ property 8 without just compensation in violation of the Fifth and Fourteenth Amendments of the 9 Constitution, as well as Article 1, Section 8(6) of the Nevada Constitution. (ECF No. 1 at 10 36.) As mentioned above and as Defendants correctly point out (ECF No. 92 at 20), the 11 Court previously ruled that three Plaintiffs—Morales, Wells, and Whittle—have been 12 deemed to have admitted that they did not obtain AIC performer business licenses. (ECF 13 No. 60 at 9 n.6; ECF No. 46.) Because of this admission, Morales, Wells, and Whittle do 14 not maintain standing to assert a claim based on the regulatory taking of the economically 15 viable use of an AIC performer business license. The Court therefore dismisses Morales, 16 Wells, and Whittle’s regulatory taking claims for lack of standing. 17 As for Courtney, Defendants point out that discovery disclosed that she did not 18 apply for an AIC performer business license until about three months after RMC § 19 5.06.080(b) went into effect. (ECF No. 92 at 20; ECF No. 92-2 at 2.) While it is true that 20 Courtney did not apply and pay for her license until August 16, 2019, it appears that the 21 City nevertheless approved her license on the same day.17 This means that Courtney, 22 under 21 years old at the time, presumably could have performed in an AIC that does not 23 serve alcohol, as the City posits (ECF No. 92 at 15). But because all AICs in Reno serve 24 alcohol, as the City acknowledges (id. at 13), Courtney could not lawfully use her AIC 25 business license as a result of the enactment of RMC § 5.06.080(b). The Court finds this 26 17On Courtney’s AIC performer business license application, there is a stamp 27 indicating the application was received by the City of Reno Business License Division on August 16, 2019. (ECF No. 92-2 at 2.) Under the “Official Use Only” section, it notes 28 Courtney’s license number, that Courtney paid $85.00 for the license, and that her license 2 the alleged deprivation of the economically viable use of her business license. 3 For the remaining five Plaintiffs with standing to bring this claim—Castellanos, 4 Courtney, Jasper, Rachet, and Stagner—Defendants argue that no regulatory taking 5 occurred because a City-issued AIC performer business license does not constitute a 6 vested property right to earn money. (ECF No. 92 at 21.) Plaintiffs allege that they have 7 a “vested property right in the stream of income to be derived from their ability to perform 8 as a licensed [AIC performer] within the City of Reno” and that “[t]he value of that property 9 right is the present value of [their] future income to be expected.” (ECF No. 1 at 22.) 10 “The Takings Clause protects property interests created by independent sources 11 such as state law, but does not itself create property interests.” Angelotti Chiropractic, 12 Inc. v. Baker, 791 F.3d 1075, 1081 (9th Cir. 2015) (citation omitted). “The property interest 13 must be ‘vested.’” Id. “To determine whether a property interest has vested for Takings 14 Clause purposes, ‘the relevant inquiry is the certainty of one’s expectation in the property 15 interest at issue.’” Bowers v. Whitman, 671 F.3d 905, 913 (9th Cir. 2012) (citation 16 omitted). “[I]f the property interest is ‘contingent and uncertain’ or the receipt of the interest 17 is ‘speculative’ or ‘discretionary,’ then the government’s modification or removal of the 18 interest will not constitute a constitutional taking.” Id. (citing Engquist v. Oregon Dep’t of 19 Agric., 478 F.3d 985, 1003-04 (9th Cir. 2007), aff’d sub nom. Engquist v. Oregon Dep’t of 20 Agr., 553 U.S. 591 (2008)). 21 Plaintiffs do not respond directly to Defendants’ argument except to vaguely cite 22 to Minton v. Bd. of Med. Examiners, 881 P.2d 1339 (Nev. 1994), which noted that “the 23 right to practice medicine” is a constitutionally protected property right and does not 24 pertain to the type of alleged property right here. (ECF No. 96 at 22 n.18.) The Court finds 25 that Plaintiffs’ “expected future stream of income” derived from holding an AIC performer 26 business license is necessarily contingent, uncertain, and speculative in many respects. 27 Moreover, AIC performer licenses fall under the category of “privileged licenses” in Title 28 5 of the Code, and RMC § 5.05.007 plainly states, “Any license or permit issued pursuant 2 right therein or thereunder.” Such characterization as a “revocable privilege” indicates the 3 discretionary and non-mandatory nature of Plaintiffs’ alleged entitlement. See AJ Sloan, 4 Inc. v. Holloway, Case No. 2:15-cv-02436-GMN-VCF, 2017 WL 1042462, at *4 (D. Nev. 5 Mar. 16, 2017) (similar analysis); Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 6 24 F.3d 56, 62 (9th Cir. 1994) (“A reasonable expectation of entitlement is determined 7 largely by the language of the statute and the extent to which the entitlement is couched 8 in mandatory terms.”). More significantly, if holding an AIC performer business license 9 itself does not confer a vested property right, then there is certainly no vested property 10 right in an expected future stream of income derived from use of that license. Because 11 Plaintiffs have failed to demonstrate a vested property right under the Takings Clause, 12 the Court finds that Plaintiffs’ regulatory taking claims fail as a matter of law.18 13 In sum, the Court grants Defendants’ motion for partial summary judgment as to 14 Plaintiffs’ second and third causes of action.19 To be clear, the only remaining claim 15 proceeding to trial is Plaintiffs Castellanos, Courtney, Jasper, Rachet, and Stagner’s 16 fourth cause of action on the issue of damages. 17 IV. CONCLUSION 18 The Court notes that the parties made several arguments and cited to several 19 cases not discussed above. The Court has reviewed these arguments and cases and 20 determines that they do not warrant discussion as they do not affect the outcome of the 21 motions before the Court. 22 23 18The same analysis applies to Plaintiffs’ regulatory taking claims under the 24 Nevada Constitution. See Reinkemeyer v. Safeco Ins. Co. of Am., 16 P.3d 1069, 1072 (2001) (stating the Nevada Constitution’s Takings Clause “virtually mirror[s] the language 25 in the United States Constitution,” and Nevada therefore “look[s] to federal caselaw for guidance” to interpret the state’s takings clause). 26 19Because the Court finds that Plaintiffs’ second and third causes of action fail as 27 a matter of law, the Court need not—and does not—address Defendants’ arguments that Defendant Michael Chaump, in his official capacity as Business Relations Manager of 28 Community Development and Business Licenses for the City, is entitled to qualified 1 It is therefore ordered that Defendants’ partial Rule 12(b)(1) motion to dismiss 2 || (ECF No. 98) is denied. 3 It is further ordered that Defendants’ motion for partial summary judgment (ECF 4 || No. 92) is granted. 5 It is further ordered that Plaintiffs Brianna Morales, Natalee Wells, and Cecelia 6 || Whittle’s claims are dismissed from this action without prejudice. The Clerk of Court is 7 || directed to update the docket accordingly. 8 The Clerk of Court is further directed to update the docket to reflect that Plaintiff 9 || Maryann Rose Brooks's claims were dismissed in accordance with the Court’s prior April 10 || 5, 2023 order (ECF No. 89). 11 It is further ordered that, under LR 16-5, the Court finds that it is appropriate to 12 || refer this case to United States Magistrate Judge Carla L. Baldwin to conduct a settlement 13 || conference. If the parties do not settle, the Joint Pretrial Order is due within 30 days of 14 || the date the settlement conference is held. 15 DATED THIS 22"9 Day of January 2024. 17 MIRANDA M. DU 18 CHIEF UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 15