Deja Vu of Cincinnati, L.L.C. v. Union Township Board of Trustees

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0270p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant/ -
DEJA VU OF CINCINNATI, L.L.C.,
Cross-Appellee, -
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Nos. 00-4420/4529
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v. >
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Defendants-Appellees, -
THE UNION TOWNSHIP BOARD OF TRUSTEES et al.,
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Intervenor-Appellee/ -
ATTORNEY GENERAL OF THE STATE OF OHIO,
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Cross-Appellant. -
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 99-00726—Sandra S. Beckwith, Chief District Judge.
Argued: December 8, 2004
Decided and Filed: June 21, 2005
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.
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COUNSEL
ARGUED: H. Louis Sirkin, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio,
Bradley J. Shafer, SHAFER & ASSOCIATES, Lansing, Michigan, for Appellant. Stephen P.
Carney, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Lawrence Edward
Barbiere, SCHROEDER, MAUNDRELL, BARBIERE & POWERS, Cincinnati, Ohio, for
Appellees. ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, SIRKIN, PINALES, MEZIBOV &
SCHWARTZ, Cincinnati, Ohio, Bradley J. Shafer, SHAFER & ASSOCIATES, Lansing, Michigan,
for Appellant. Stephen P. Carney, Douglas R. Cole, Sharon A. Jennings, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Lawrence Edward Barbiere, SCHROEDER,
MAUNDRELL, BARBIERE & POWERS, Cincinnati, Ohio, for Appellees. Scott D. Bergthold,
LAW OFFICE OF SCOTT D. BERGTHOLD, Chattanooga, Tennessee, Jack R. Burns, Bellevue,
Washington, for Amici Curiae.
GILMAN, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER,
GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined. CLAY, J. (pp. 18-23), delivered a
separate opinion concurring in part and dissenting in part, in which DAUGHTREY and COLE, JJ.,
1
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 2
joined. MARTIN, J. (p. 24), delivered a separate opinion dissenting in part, in which
DAUGHTREY and MOORE, JJ., joined.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Deja Vu of Cincinnati, L.L.C. operates an adult
cabaret in Union Township, Clermont County, Ohio. In 1999, Union Township enacted an
ordinance (locally known as a resolution) in an attempt to minimize the adverse secondary effects
of sexually oriented businesses. Deja Vu filed a complaint in the United States District Court for
the Southern District of Ohio, alleging that the resolution violated the First and Fourteenth
Amendments to the United States Constitution. The district court granted in part and denied in part
Deja Vu’s subsequent motion for a preliminary injunction. In response to this decision, Union
Township amended the resolution to eliminate the provisions that the district court concluded were
likely to be held unconstitutional. Union Township also eliminated other provisions that were not
found to be suspect by the district court.
Deja Vu appealed, claiming that the district court erred in denying in part its motion for a
preliminary injunction. The Ohio Attorney General, who intervened in the lawsuit to defend the
constitutionality of Ohio’s enabling statute, filed a cross-appeal. A divided panel of this court ruled
in favor of Deja Vu on the following two points: (1) that the resolution was an unconstitutional prior
restraint on protected First Amendment expression because it failed to provide for prompt judicial
review of an adverse licensing decision, and (2) that the resolution’s more restrictive closing times
for adult cabarets without liquor licenses as compared to those with liquor licenses was a violation
of the First and Fourteenth Amendments. Deja Vu of Cincinnati, L.L.C. v. Union Township Bd. of
Trs., 326 F.3d 791 (6th Cir. 2003).
We granted a rehearing en banc to reconsider whether the resolution is consonant with both
the First and Fourteenth Amendments. For the reasons set forth below, we AFFIRM the district
court’s decision to deny in part the preliminary injunction, express NO OPINION on the district
court’s decision to grant in part the preliminary injunction in light of Union Township’s subsequent
modification of the resolution, and REMAND the case for further proceedings consistent with this
opinion.
I. BACKGROUND
Deja Vu began operating an adult cabaret in Union Township in April of 1999. The
nightclub features performances by clothed, semi-nude, and nude dancers.
In August of 1999, the Board of Trustees of Union Township (the Board) enacted Resolution
No. 99-15 to regulate the licensing of cabaret-style nightclubs that feature adult entertainment. The
resolution was enacted pursuant to the authority granted to Union Township by Ohio Revised Code
§ 503.51-59 for the purpose of protecting the “public health, safety and welfare.” Resolution No.
99-15 § A. In particular, the resolution states that it was passed on the basis of the Board’s “review
of other cities’ studies and citizen comments regarding the secondary effects of sexually oriented
businesses,” which provided “convincing evidence” that such businesses “have a deleterious effect
on both existing businesses around them and the surrounding residential areas . . . .” Id. § C.
Deja Vu filed its complaint in September of 1999, alleging that various provisions of
Resolution No. 99-15 violate the First and Fourteenth Amendments to the United States
Constitution. At the same time, Deja Vu filed a motion for a preliminary injunction. Consideration
of the motion was stayed pending a decision by the United States Supreme Court in City of Erie v.
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 3
Pap’s A.M., 529 U.S. 277 (2000) (holding that public indecency ordinances may be treated as if they
were content-neutral regulations). After the Supreme Court issued its decision in City of Erie, Deja
Vu renewed its motion for a preliminary injunction. The district court granted the motion in part,
enjoining Union Township from enforcing the sections of Resolution No. 99-15 that pertain to
warrantless health and safety inspections of the premises, §§ (L)(1) and (M)(2), and to the disclosure
of personal information concerning every partner and shareholder of the business, §§ (D)(5)(d) and
(e). In October of 2000, the district court denied Deja Vu’s motion to alter or amend the preliminary
injunction.
Deja Vu filed a timely appeal in November of 2000. The Attorney General of Ohio, who
intervened in the case to defend the constitutionality of Ohio Revised Code § 503.51-59, cross-
appealed the district court’s decision to enjoin the warrantless health and safety inspections. While
the appeal and cross-appeal were pending, Union Township enacted Resolution No. 00-22 to amend
and replace Resolution No. 99-15, thereby eliminating those provisions that the district court had
determined were likely to be held unconstitutional. The new resolution also modified other aspects
of the personal-disclosure and civil-disability provisions found in the older ordinance. For the
remainder of this opinion, the term “resolution” will be used to refer to current Resolution No. 00-
22.
II. ANALYSIS
A. Standard of review
Whether a preliminary injunction should be granted is a decision left to the sound discretion
of the district court. Allied Sys., Ltd. v. Teamsters Nat’l Auto. Transporters Indus. Negotiating
Comm., 179 F.3d 982, 985-86 (6th Cir. 1999). A district court, in deciding whether to grant an
injunction, “abuses its discretion when it applies the incorrect legal standard, misapplies the correct
legal standard, or relies upon clearly erroneous findings of fact.” Schenck v. City of Hudson, 114
F.3d 590, 593 (6th Cir. 1997). The following factors are to be considered by a district court in
deciding whether to grant a preliminary injunction:
(1) whether the plaintiff has established a substantial likelihood or probability of
success on the merits; (2) whether there is a threat of irreparable harm to the
plaintiff; (3) whether issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served by granting injunctive
relief.
Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000). Like the parties, the district
court primarily focused on the first of these four factors—whether Deja Vu is likely to succeed on
the merits of its claims. We look at each of these claims in turn.
B. Prompt judicial review
1. Quasi-judicial proceeding
Deja Vu claims that the resolution is unconstitutional on its face because it fails to provide
for prompt judicial review when an application for a license is denied. Citing M.J. Kelley Co. v. City
of Cleveland, 290 N.E.2d 562 (Ohio 1972), Deja Vu contends that the resolution does not allow for
the type of “quasi-judicial proceeding” required for an appeal to lie pursuant to Ohio Revised Code
§ 2506. Id. at 563 (Syllabus ¶ 1) (“[A]dministrative actions of administrative officers and agencies
not resulting from quasi-judicial proceedings are not appealable to the Court of Common Pleas
under the provisions of R.C. 2506.01.”).
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 4
In its original memorandum and order, the district court did not address Deja Vu’s argument
on this point. It did, however, rule on the issue after Deja Vu again raised the argument in a motion
to alter or amend the judgment. After finding that the enabling legislation passed by Ohio to allow
townships to regulate adult cabarets, Ohio Rev. Code § 503.57, “provides for appeal of a denial or
revocation by the Board of Trustees of a permit to operate an adult cabaret,” the district court denied
Deja Vu’s request for a preliminary injunction on this basis.
Under the resolution, an applicant for an adult cabaret license is permitted to “present
information, evidence, and testimony to the Board, at a public hearing regarding the application.”
Resolution No. 00-22 § (F)(1). The Board must make a decision on the application within 30 days
of the application’s submission. Id. As set forth in the Ohio Revised Code, “[a]ny person adversely
affected by an order of the board denying or revoking a permit to operate an adult cabaret may
appeal from the order of the board to the court of common pleas . . . in accordance with Chapter
2506[] of the Revised Code.” Ohio Rev. Code § 503.57. Pursuant to Chapter 2506, “[e]very final
order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission,
department, or other division of any political subdivision of the state may be reviewed by the court
of common pleas,” but only if the final order, adjudication or decision is the product of a “quasi-
judicial proceeding.” Ohio Rev. Code § 2506.01; see M.J. Kelley Co., 290 N.E.2d at 563 (Syllabus
¶ 1).
Proceedings of an administrative agency “are not quasi-judicial where there is no
requirement for notice, hearing and the opportunity for introduction of evidence.” M.J. Kelley Co.,
290 N.E.2d at 563 (Syllabus ¶ 2). The Ohio Supreme Court determined that the administrative
proceeding before it in M.J. Kelley Co. was not appealable pursuant to Ohio Revised Code
§ 2506.01 because, in determining the lowest bidder for a city contract, the Board of Control of the
City of Cleveland “was not required to give advance notice of the meeting to the bidders[,] and
bidders were not required to be present at such a meeting,” and that, “[i]n fact, no notice” was given
to bidders. Id. at 565.
In contrast, the resolution in the present case provides that the “Board shall hear any
application for a permit or renewal permit, at a public hearing.” Resolution No. 00-22 § (F)(1).
Ohio Revised Code § 503.52 requires a board of trustees to publish “in at least one newspaper of
general circulation in the township notice of the public hearings, including the time, date, and place,
once a week for two weeks immediately preceding the hearings.” Moreover, the resolution states
that, during the public hearing, “[t]he applicant shall have the opportunity to present information,
evidence, and testimony to the Board . . . .” Resolution No. 00-22 § (F)(1). The resolution therefore
satisfies the three requirements that define a “quasi-judicial proceeding”: (1) a hearing, (2) notice,
and (3) the opportunity to introduce evidence. M.J. Kelley Co., 290 N.E.2d at 563 (Syllabus ¶ 2).
Deja Vu responds by citing the following four cases in support of its position that the
resolution does not provide for adequate judicial review: Local No. 2134 v. Bd. of Marion Township
Trs., 514 N.E.2d 1386 (Ohio Ct. App. 1986); Banjoff v. Township of Carlisle Bd. of Trs.,
No. 98CA007079, 1999 WL 239416 (Ohio Ct. App. Apr. 14, 1999) (unpublished); Ramacciatti v.
City of Cleveland, No. 66678, 1994 WL 326238 (Ohio Ct. App. July 7, 1994) (unpublished); and
City of Huber Heights v. Liakos, No. 2000 CV 03932 (Ohio Com. Pl. Sept 25, 2000) (unpublished).
All of these cases, however, are distinguishable on their facts from the present case.
In Local No. 2134, the Ohio Court of Appeals held that the proceedings on a grievance filed
by several employees of Marion Township were not “quasi-judicial” in nature. Local No. 2134, 514
N.E.2d at 1389. The Ohio Court of Appeals relied on the undisputed fact that the Marion Township
Board of Trustees did not hold a hearing or provide the employees with notice. Id. at 1388 (stating
that “at no time did [the board] hold a hearing with notice given to plaintiffs concerning the
grievance”). Unlike the employees in Local No. 2134, who challenged the grievance procedure as
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 5
it applied to them, Deja Vu is challenging the Union Township resolution on its face. Here the
resolution clearly provides for a hearing, notice, and the opportunity to introduce evidence, so that
the Board is acting as a quasi-judicial administrative body when it evaluates a request for a permit.
In Banjoff, the Ohio Court of Appeals held that an appeal was not available pursuant to Ohio
Revised Code § 2506.01 because, unlike in the case before us, the administrative proceeding
initiated by Banjoff to contest Carlisle Township’s failure to appoint him as a full-time firefighter
did not provide “for notice, a hearing, or the opportunity to present evidence . . . .” Banjoff, 1999
WL 239416, at *2. The Ohio Court of Appeals similarly held in Ramacciatti that an administrative
proceeding conducted by Cleveland’s Civil Service Commission did not constitute a “quasi-judicial
proceeding” because “[n]o official notice of a hearing was provided,” and the plaintiff was not
afforded the “opportunity to subpoena witness[es], to cross examine witnesses, or to have testimony
taken under oath.” Ramacciatti, 1994 WL 326238, at *4.
Finally, in City of Huber Heights, the court of common pleas’s decision concerning the
licensing of a sexually oriented business hinged on the biased nature of the individual who was the
relevant decisionmaker. City of Huber Heights, No. 2000 CV 03932 (slip op.), at 12-13 (“[I]t is
axiomatic that a hearing conducted before a biased individual . . . would not fulfill a requisite
requirement of fundamental fairness that must pre-dominate in all quasi-judicial proceedings.”). The
court of common pleas emphasized that the hearing was no more than a “reconsideration” by the
same individual—the City Manager—of his determination “‘that probable grounds exist for denial,
suspension, or revocation of a permit.’” Id. at 10-12 (quoting § 31 of Huber Height’s sexually
oriented business ordinance). In affirming the court of common pleas’s decision in City of Huber
Heights, the Ohio Court of Appeals recognized that combining the investigative and adjudicative
functions in a single individual, as opposed to an institutional agency, “undermines the quality of
neutrality that is the central purpose of a review process” because it gives the individual “unbridled
discretion.” City of Huber Heights v. Liakos, 761 N.E.2d 1083, 1091 (Ohio Ct. App. 2001).
Unlike in City of Huber Heights, the decisionmaking authority under the Union Township
resolution is vested in an administrative body rather than in an individual. The Union Township
resolution also takes the further precaution of vesting the investigative function in the police
department and the adjudicative function in the Board. Resolution No. 00-22 § (E) (providing that
the police department is responsible for preparing a written report of the results of an investigation
into the background of any applicant for a permit and anyone named in the application); id. § (F)(1)
(stating that the Board is responsible for considering “any application for a permit or renewal permit,
at a public hearing”).
We therefore hold that the administrative hearing provided for by the resolution constitutes
a “quasi-judicial proceeding” as that term has been defined by the Ohio Supreme Court in M.J.
Kelley Co., 290 N.E.2d at 563 (Syllabus ¶ 2).
2. Civil proceeding
Deja Vu also argues that the resolution does not provide for prompt judicial review because
many decisions by the Board to deny or revoke licenses will likely be “issued preliminary to or as
a result of a criminal proceeding,” and that such decisions are unreviewable under Ohio Revised
Code § 2506.01. In providing for judicial review of the Board’s determinations, the Union
Township resolution permits any applicant who is denied a license, or any licensee whose license
is revoked, to “appeal the action of the Board in accordance with chapter 2506 of the Ohio Revised
Code.” Resolution No. 00-22 §§ J(1)-(2). Ohio Revised Code § 503.57 further provides that “[a]ny
person adversely affected by an order of the board denying or revoking a permit to operate an adult
cabaret may appeal from the order of the board to the court of common pleas . . . in accordance with
Chapter 2506.[01] of the Revised Code.”
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 6
Notwithstanding these explicit provisions for judicial review of the Board’s adverse licensing
decisions, Deja Vu contends that most decisions will be beyond the review of the Ohio courts
because Ohio Revised Code § 2506.01 prohibits appeals from “any order, adjudication, or decision
that is issued preliminary to or as a result of a criminal proceeding.” The resolution allows the
Board to deny or revoke a license if it finds that an applicant or licensee has been convicted within
the past three years of a sex offense under Ohio Revised Code § 2907, or convicted within the past
five years of an offense under Ohio Revised Code § 503.53(C), which prohibits adult cabaret
employees from touching, fondling, or displaying their own or another person’s genitals, pubic area,
buttocks, or (female) breasts. Resolution No. 00-22 § (I). Deja Vu insists that where a license is
denied or revoked because of a conviction under Ohio Revised Code § 2907 or § 503.53(C), the
Board’s public hearings and subsequent licensing decision are transformed into a “criminal
proceeding” and thus shielded from judicial review by Ohio Revised Code § 2506.01.
We reject this far-reaching argument because we agree with the Ohio State Attorney General
that, although not a model of clarity, the exclusionary language in Ohio Revised Code § 2506.01 is
aimed at preventing criminal defendants from circumventing normal appellate procedures by
precluding them from seeking interlocutory appeals in the Ohio Court of Common Pleas. Also
evident is the fact that the denial or revocation of a license by the Board, even if predicated on a
criminal act, is not “issued preliminary to or as a result of a criminal proceeding.” This is because
the Board’s authority under the resolution is civil, not criminal. See Ohio Rev. Code § 503.51-59,
the enabling statute that permits townships to regulate adult cabarets.
The dissenting opinion embraces Deja Vu’s argument and insists that the majority’s
“analysis is fundamentally misguided . . . because Ohio law does not provide for any judicial review
whatsoever for a substantial number of adverse licensing decisions.” Dissenting Op. at 18. But the
dissent is unable to cite any authority to support its broad interpretation of the exclusionary effect
of Ohio Revised Code § 2506.01, nor are we aware of any adverse licensing decisions by the Board
that have been denied judicial review in the Ohio Court of Common Pleas because the Board’s
decision was deemed to have been “issued preliminary to or as a result of a criminal proceeding.”
The Supreme Court instructs us that “every reasonable construction must be resorted to, in
order to save a [legislative act] from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657
(1895). Thus, “if an otherwise acceptable construction of a statute would raise serious constitutional
problems, and where an alternative interpretation of the statute is fairly possible, we are obligated
to construe the statute to avoid such problems.” INS v. St. Cyr, 533 U.S. 289, 299-300 (2001)
(citation and quotation marks omitted). This case presents such a situation. Absent any
interpretation of § 2506.01 by the Ohio courts to the contrary, we must interpret the resolution in
a manner that saves its constitutionality—that is, by concluding that Ohio Revised Code § 2506.01
permits an appeal from an adverse licensing decision by the Board whether or not the decision is
predicated upon a criminal act.
3. Prompt judicial decision
Deja Vu further maintains that the resolution’s provision for the issuance of a temporary
license pending appeal of an adverse licensing determination does not provide for the “prompt
judicial decision” that is required when the government imposes a prior restraint on the freedom of
expression. See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, 274
F.3d 377, 403 n.8 (6th Cir. 2001) (“Merely preserving the status quo, however, is not sufficient . . . .
The decision whether or not to grant a license must still be made within a specified, brief period, and
the licensing scheme ‘must assure a prompt judicial decision.’”) (quoting Freedman v. Maryland,
380 U.S. 51, 59 (1965)) (emphasis in original).
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 7
The Supreme Court in Freedman held that three procedural safeguards are required in order
to ensure that a prior restraint on the freedom of expression is constitutional. First, “[a]ny restraint
imposed in advance of a final judicial determination on the merits must . . . be limited to
preservation of the status quo for the shortest fixed period compatible with sound judicial
resolution.” 380 U.S. at 59. Second, “the procedure must also assure a prompt final judicial
decision.” Id. And third, the burden of proving that the expression in question is unprotected must
rest on the government. Id. at 58.
The Sixth Circuit has held that “[l]icensing schemes in a city ordinance regulating sexually
oriented businesses constitute a prior restraint that must incorporate at least the first two Freedman
procedural safeguards.” Deja Vu of Nashville, Inc., 274 F.3d at 400-01 (holding that a Nashville
ordinance regulating the licensing of sexually oriented businesses did not provide for a prompt
judicial determination because it required “aggrieved applicants [to] proceed to court via a
discretionary route” instead of allowing for an appeal as of right); see also FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 228 (1990) (plurality opinion of O’Connor, J.) (stating that “the first two
[Freedman] safeguards are essential: the licensor must make the decision whether to issue the
license within a specified and reasonable time period during which the status quo is maintained, and
there must be the possibility of prompt judicial review in the event that the license is erroneously
denied”). In analyzing the constitutionality of an adult-business-licensing scheme, this court has
recognized that “any system of prior restraint carries a heavy presumption against its validity.” Deja
Vu of Nashville, Inc., 274 F.3d at 391.
Deja Vu maintains that the resolution in question fails to provide for prompt judicial review
because it does not mandate specific time limits within which the Ohio courts must complete their
review of an adverse licensing determination. This issue of what procedures are necessary in the
context of an adult-business-licensing scheme to “assure prompt judicial review of an administrative
decision denying a license” was recently explored by the Supreme Court in City of Littleton v. Z.J.
Gifts D-4, L.L.C., 124 S. Ct. 2219, 2221 (2004). The city ordinance at issue in Littleton required “an
applicant to provide certain basic information about the business,” directed that a license be denied
if an applicant had “been convicted of certain crimes within the prior five years,” required the city
to issue a decision within “about 40 days,” and permitted the city’s decision to be “appealed to the
[state] district court.” Id. at 2222, 2225 (alteration in original). After concluding that the “First
Amendment does not require special ‘adult business’ judicial review rules,” the Court accepted the
city’s invitation to modify FW/PBS by withdrawing its implication that Freedman’s special judicial
review rules apply to adult-business-licensing schemes. Id. at 2224 (finding that “Colorado’s
ordinary ‘judicial review’ rules offer adequate assurance, not only that access to the courts can be
promptly obtained, but also that a judicial decision will be promptly forthcoming”) (emphases in
original).
The Supreme Court was faced with a statute in Freedman that prohibited the exhibition of
any film until it was approved by a state censorship board, and the board’s denial of a license would,
“without any judicial participation, effectively bar[] exhibition of any disapproved film, unless and
until the exhibitor undert[ook] a time-consuming appeal to the Maryland courts and succeed[ed] in
having the Board’s decision reversed.” Freedman, 380 U.S. at 54-55. As the Supreme Court
explained in Littleton, the special characteristics of the statute before the court in Freedman
necessitated that strict time limits be placed on judicial review in order to prevent “undue delay
resulting in the unconstitutional suppression of protected speech.” Littleton, 124 S. Ct. at 2225
(observing that the statute in Freedman created “a scheme with rather subjective standards and
where a denial likely meant complete censorship”) (quoting FW/PBS, 493 U.S. at 228); see also
Freedman, 380 U.S. at 61 (finding “that films differ from other forms of expression,” and warning
“that the nature of the motion picture industry may suggest different time limits for a judicial
determination”).
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 8
In contrast, the adult-business-licensing ordinance before the court in Littleton did “not seek
to censor material” and applied “reasonably objective, nondiscretionary criteria.” 124 S. Ct. at 2225
(emphasis in original). Finding that an “adult business licensing scheme does not present the grave
dangers of a censorship system,” the court concluded that “ordinary court procedural rules and
practices, in Colorado as elsewhere, provide reviewing courts with judicial tools sufficient to avoid
delay-related First Amendment harm.” Id. at 2224-26 (quotation marks omitted).
Like the ordinance in Littleton, the adult-cabaret-licensing resolution challenged by Deja Vu
“applies reasonably objective, nondiscretionary criteria.” Id. at 2225. The resolution states that the
Board “shall approve the application” for an adult cabaret license unless the application is false or
incomplete, the applicant is under the age of 18, the operation of the cabaret would violate existing
zoning laws, the applicant has committed certain civil offenses within the last three years, or the
applicant is a business entity that is not registered to do business in Ohio. Resolution No. 00-22
§ (F)(2)(a)-(g). Given that “[t]hese objective criteria are simple enough to apply and their
application simple enough to review,” and that Deja Vu has given us “no reason to doubt the
willingness of [Ohio]’s judges to exercise the[ir] powers wisely so as to avoid serious threats of
delay-induced First Amendment harm,” we conclude that the resolution fulfills Littleton’s
requirements for prompt judicial review. Littleton, 124 S. Ct. at 2225.
The resolution in the present case also provides for an additional First Amendment safeguard
not contained in the ordinance that was upheld by the court in Littleton— the issuance of a
temporary permit. Upon request, the Union Township Board must issue the applicant a temporary
permit that will allow the operation of the adult cabaret “until such time as the appeal process . . .
has been completed.” Resolution No. 00-22 § (J)(1). The inclusion of this provision may well have
been prompted by this court’s decisions suggesting that cities could avoid constitutional infirmities
in their adult-business-licensing schemes by issuing “provisional licenses” that “actually permit the
communication of protected expression until a judicial decision is rendered.” Nightclubs, Inc. v.
City of Paducah, 202 F.3d 884, 894 (6th Cir. 2000) (invalidating an adult-cabaret-licensing scheme
because it did not include such a provision); see also Currence v. City of Cincinnati, Nos. 00-
3985/4041, 2002 WL 104778, at *7 (6th Cir. Jan. 24, 2002) (per curiam) (unpublished) (noting that
our decisions have “suggested that a city enact an ordinance that: 1) requires a license to issue if
the court does not decide the issue within a certain period of time; or 2) issues a provisional license
to businesses or employees who seek judicial review”).
Temporary permits are one way to comply with Freedman’s requirement that “[a]ny restraint
imposed in advance of a final judicial determination on the merits must . . . be limited to the
preservation of the status quo.” Freedman, 380 U.S. at 59; see also Deja Vu of Nashville, Inc., 274
F.3d at 403 n.8 (finding that Freedman’s requirement of “preserving the status quo” could be met
by the issuance of temporary licenses that would allow “existing businesses to continue to operate
until an adjudication on the merits” of their appeals).
Although the resolution under consideration in this case provides for temporary licenses to
be issued while an appeal is pending, Deja Vu nevertheless maintains that the resolution fails to
preserve the status quo. In support of its argument, Deja Vu points to the provision that requires an
applicant operating under a temporary permit “to follow all other guidelines set forth in [the]
resolution.” Resolution No. 00-22 § (J)(1). We read this section as requiring Deja Vu to adhere to
the regulations governing duly licensed cabarets, such as complying with the hours-of-operation
provision or maintaining a list of employees with the Union Township Clerk.
Deja Vu is therefore correct that possession of a temporary license does not permit an adult
cabaret to operate without any governmental regulation. Compliance with the resolution’s minimal
requirements, however, falls far short of the kind of “complete censorship” that prompted the
Supreme Court in Freedman to fashion the status quo requirement. Littleton, 124 S. Ct. at 2225.
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 9
An adverse decision by the censorship board in that case would have barred the film from being
shown during the pendency of the lengthy appeal. Here, Deja Vu may still operate as an adult
cabaret even though it must close earlier than it would like. Such a regulation “is unlikely in
practice to suppress totally” Deja Vu’s protected expression. Id. (upholding the adult-business-
licensing ordinance even though it did not provide for temporary licences because “[s]ome license
applicants will satisfy the criteria even if others do not; hence the community will likely contain
outlets that sell protected adult material”). We therefore conclude that, in providing for temporary
permits, the resolution effectively preserves the status quo while appeals from the Board’s adverse
licensing decisions are pending.
C. Hours of operation
Deja Vu’s next contention is that the hours-of-operation provision in the resolution violates
the First Amendment. The district court denied Deja Vu a preliminary injunction on this issue after
finding that the hours-of-operation provision “furthers an important or substantial interest in the
protection of public safety,” and that it “is reasonable and no more repressive of protected speech
than is essential to serve Defendants’ legitimate interests.” In so ruling, the district court
emphasized that Deja Vu is still allowed to operate for 84 hours each week.
To analyze Deja Vu’s claim, we must first determine what level of scrutiny to apply to the
resolution. We are guided by the Supreme Court’s decision in City of Erie v. Pap’s A.M., 529 U.S.
277 (2000), in which the Court held that “government restrictions on public nudity . . . should be
evaluated under the framework set forth in [United States v.] O’Brien [391 U.S. 367 (1968),] for
content-neutral restrictions on symbolic speech.” City of Erie, 529 U.S. at 289, 293 (applying “the
‘less stringent’ standard from O’Brien” that is normally reserved for content-neutral regulations
because the “State’s interest in preventing harmful secondary effects is not related to the suppression
of expression”). Under the four-part test outlined in O’Brien, “a government regulation is
sufficiently justified if it is within the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest.” 391 U.S. at 377.
The resolution’s hours-of-operation provision will pass muster under O’Brien so long as it
imposes only “reasonable time, place or manner restrictions” on protected speech. See Clark v.
Cmty for Creative Non-Violence, 468 U.S. 288, 293, 298 (1984) (noting that the “four-factor
standard of [O’Brien] for validating a regulation of expressive conduct . . . is little, if any, different
from the standard applied to time, place, or manner restrictions”); see also Richland Bookmart, Inc.
v. Nichols, 137 F.3d 435, 440 (6th Cir. 1998) (“Richland Bookmart I”) (analyzing a similar hours-of-
operation provision “as a form of time, place and manner regulation”). To be valid, however, the
resolution’s hours-of-operation provision must (1) “serve a significant government interest,” (2) be
“narrowly tailored” to that purpose, and (3) “leave open ample alternative channels for
communication of the information.” Clark, 468 U.S. at 293.
Deja Vu contends that the hours-of-operation provision, which requires that adult cabarets
close at midnight, does not serve a substantial governmental interest because there is no evidence
that additional operating hours would lead to negative secondary effects. A similar argument was
considered by this court in Richland Bookmart I, 137 F.3d 435, in which an adult bookstore
challenged a statute regulating the operating hours of adult-oriented establishments. Like the
resolution in this case, the statute in Richland Bookmart I had been enacted for the express purpose
of minimizing the adverse secondary effects of sexually oriented businesses. The court found that
“[r]educing crime, open sex and solicitation of sex and preserving the aesthetic and commercial
character of the neighborhoods surrounding adult establishments is a substantial government interest
. . . . It is not unreasonable to believe that such regulation of hours of shops selling sex literature
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 10
would tend to deter prostitution” and other negative secondary effects. Id. at 440 (quotation marks
omitted).
For the same reasons, we reject Deja Vu’s argument that the hours-of-operation provision
does not further Union Township’s substantial interest in protecting “the public health, safety and
welfare.” Union Township’s decision to regulate the hours of operation was based upon studies of
the adverse secondary effects of adult cabarets and other sexually oriented businesses. Resolution
No. 00-22 §§ B & C. As the Supreme Court has recognized, “[t]he asserted interests of . . .
combating the harmful secondary effects associated with nude dancing are undeniably important,”
and such “regulation furthers the government interest . . . since crime and other public health and
safety problems are caused by the presence of nude dancing establishments . . . .” City of Erie, 529
U.S. at 296, 300.
Deja Vu contends, in the alternative, that the hours-of-operation provision is not narrowly
tailored and that the resulting burden on protected First Amendment expression is greater than
necessary to further Union Township’s interest in minimizing the secondary effects of adult
cabarets. In support of its position, Deja Vu points to the fact that the resolution permits adult
cabarets that serve alcohol to stay open until 2:30 a.m., while those cabarets not serving alcohol are
prohibited from being open past midnight. Resolution No. 00-22 § (L)(1) (requiring an adult cabaret
to close at the later of midnight or the closing time required under its liquor permit). Because Deja
Vu is an adult cabaret that does not sell alcoholic beverages, it can operate only until midnight. Deja
Vu claims that such disparate treatment is unjustified, and points to the decisions of numerous courts
that have concluded that sexually oriented businesses that serve alcohol actually present an
increased risk of adverse secondary effects. See, e.g., New York State Liquor Auth. v. Bellanca, 452
U.S. 714, 718 (1981) (“Common sense indicates that any form of nudity coupled with alcohol in a
public place begets undesirable behavior.”).
That the resolution results in disparate treatment, however, does not necessarily raise First
Amendment concerns. If there were no reasonable explanation for the resolution’s distinction
between the two types of cabarets, the inference could be drawn that Union Township was acting
with some invidious motive in passing the resolution. But this is not the case here, where Union
Township can point to at least two plausible justifications for the different closing times. The first
is that Union Township wanted to institute a midnight closing time for all adult cabarets, but was
prevented from doing so by conflicting state liquor laws. Second, in enacting the resolution, Union
Township relied upon research suggesting that the patrons of alcohol-free adult cabarets are often
more unruly because these cabarets are frequently patronized later in the evening by customers who
have become intoxicated at other establishments. Although Union Township could have elected to
permit all adult cabarets to close at 2:30 a.m., thereby accommodating state liquor laws and
eliminating the disparate treatment concerns, the First Amendment does not require Union Township
to make this choice. See Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989) (holding that
although “a regulation of the time, place, or manner of protected speech must be narrowly tailored[,]
. . . it need not be the least restrictive or least intrusive means of doing so”).
The dissenting opinion, however, notes that “the Township has cited no research
whatsoever” in enacting the resolution. Admittedly, Union Township did not commission its own
in-depth study, but “[t]he 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.” City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 50-
52 (1986).
As stated in the preamble to the resolution, Union Township relied upon studies from 12
different cities in determining that enactment of the resolution would curtail unwanted secondary
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 11
effects associated with adult cabarets, including increased crime. Union Township Administrator
Kenneth Geis further attested that documented instances of intoxicated patrons engaging in “serious
criminal activity in [a] cabaret” prior to the enactment of the resolution also led Union Township
to conclude that tighter regulation of the hours of operation of adult cabarets would likely decrease
criminal activity in the cabarets and surrounding neighborhoods. This evidence can be said to
“fairly support [Union Township]’s rationale for its ordinance” and therefore meets the requirements
of the narrow-tailoring test. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-439
(2002) (rejecting a First Amendment challenge to a zoning ordinance because the adult-business
plaintiffs failed to “demonstrat[e] that the municipality’s evidence does not support its rationale or
. . . furnish[] evidence that disputes the municipality’s factual findings”).
The resolution’s hours-of-operation provision also “leave[s] open ample alternative channels
for communication” of Deja Vu’s protected expression. See Clark, 468 U.S. at 293. In Richland
Bookmart I, this court found that “[a]ccess to adult establishments [wa]s not unduly restricted” by
legislation that required adult businesses to close at midnight. 137 F.3d at 441 (upholding the
closing law because adult businesses could “still be open many hours during the week”). We
similarly conclude that the resolution’s hours-of-operation provision, which permits Deja Vu to be
open for twelve hours a day, six days a week, passes First Amendment muster. See Ctr. for Fair
Pub. Policy v. Maricopa County, 336 F.3d 1153, 1159 (9th Cir. 2003) (noting, in upholding a
restriction on the operating hours of adult businesses, that “six other circuits have had occasion to
consider similar restrictions, and all have found such restrictions to be constitutional”).
In addition to its First Amendment challenge to the hours-of-operation provision, Deja Vu
also argues that the resolution in question violates the Equal Protection Clause because it applies to
the hours of operation of sexually oriented businesses that offer live entertainment but not to those
that offer only pictorial representations. These other “sexually oriented businesses,” such as adult
bookstores and theaters, are allowed to stay open until 2:30 a.m. pursuant to a different Union
Township resolution.
An analogous argument was addressed by this court in Richland Bookmart, Inc. v. Nichols,
278 F.3d 570, 572 (6th Cir. 2002) (“Richland Bookmart II”), where legislation limited the operating
hours of adult businesses, but made an exception for those businesses offering “only live, stage adult
entertainment in a theater, adult cabaret, or dinner show type setting.” The court found that the
legislation was subject to the relaxed standard of rational-basis scrutiny “[b]ecause adult-bookstore
owners are obviously not a suspect class entitled to heightened protection,” and because an
otherwise valid hours-of-operation restriction does not “implicate any fundamental right.” Id. at
574.
Deja Vu does not seriously dispute that the resolution’s hours-of-operation provision is
subject to rational-basis review. Rather, it contends that the provision’s distinction between live and
nonlive entertainment is irrational. The fact that the resolution’s hours-of-operation provision
contains an exception for establishments offering nonlive entertainment, however, is not a cause for
concern under rational-basis review because a government “may implement its program of reform
by gradually adopting regulations that only partially ameliorate a perceived evil.” Id. at 577
(citation omitted); see also Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955)
(finding that “the reform may take one step at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind . . . and apply a remedy there, neglecting the others”
without violating the Equal Protection Clause). Because the hours-of-operation provision furthers
a substantial government interest, as discussed above, and because there is no evidence of an
impermissible motive on the part of Union Township, the resolution withstands Deja Vu’s Equal-
Protection challenge. See Richland Bookmart II, 278 F.3d at 576 (stating that “an exemption will
rarely, if ever, invalidate a statute, unless the distinction created by the exemption is the result of
invidious discrimination”).
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 12
Deja Vu further argues, however, that the resolution violates the Equal Protection Clause
because adult cabarets that do not have a liquor license are required to close at midnight, while adult
cabarets that serve alcohol are permitted to remain open until the 2:30 a.m. closing time provided
under their state liquor licenses. The dissenting opinion accepts this argument and proposes as a
solution the more speech-restrictive alternative of “requir[ing] all cabarets to cease nude dancing
at midnight.” Dissenting Op. at 21 (emphasis in original). But because there is no evidence that
Union Township enacted the resolution with an impermissible motive, and because Union Township
may act incrementally to alleviate the harmful secondary effects of adult cabarets, we reject this
Equal Protection challenge to the resolution’s hours-of-operation provision.
D. Disclosure of personal information
Deja Vu also claims that the resolution violates the First Amendment by requiring an
applicant for an adult-cabaret license to furnish the Board with certain personal information. An
applicant must provide his or her “full name, residence address and date of birth,” Resolution No.
00-22 § (D)(5)(c), and an “[a]uthorization for an investigation into the background, including any
criminal record, of the applicant and any person or entity named in the application . . . .” Id. at
(D)(5)(g). In addition, “a list of employees” must be filed by a licensee that states “the name, date
of birth, and position of each employee.” Id. at (M)(3). Deja Vu maintains that requiring the
disclosure of this information “as a prerequisite for being able to engage in First Amendment
protected activities” is unconstitutional.
The district court applied the four-part test outlined in United States v. O’Brien, 391 U.S. 367
(1968), to evaluate whether the information-disclosure provisions were permissible. After
concluding that the above-mentioned disclosure requirements were sufficiently related to the
legitimate governmental interests supporting the resolution and were not impermissibly broad, the
district court upheld the provision. The district court did, however, strike down as impermissibly
broad the portions of Resolution No. 99-15 that required the disclosure of personal information
related to every partner or shareholder of an applicant. As amended, the resolution no longer
contains these disclosure provisions and neither Union Township nor the Attorney General has
appealed the district court’s holding on this issue. The amended resolution also omits the provision
that required an applicant to disclose the residential address and social security number of each
adult-cabaret employee. Resolution No. 99-15 § (D)(5)(f). As noted above, however, the resolution
still requires a licensee to maintain a list of employees with the Clerk, including “the name, date of
birth, and position of each employee.” Resolution No. 00-22 § (M)(3).
On appeal, Deja Vu contends that the collection of personal information from an adult-
cabaret applicant does not further a substantial governmental interest. This court has declared,
however, that disclosure provisions even broader than those contained in Resolution No. 00-22 § (D)
further a substantial governmental interest in minimizing the secondary effects of sexually oriented
businesses. See Deja Vu of Nashville, Inc., 274 F.3d at 393 (holding that an ordinance requiring
applicants to “divulge such personal information as full name, height, weight, hair color, eye color,
date of birth, current residential address, and all residential addresses for the prior three years”
furthers Nashville’s “substantial governmental interest in eradicating the secondary effects of
sexually oriented businesses”). This argument by Deja Vu is therefore without merit.
Deja Vu further maintains that the personal information gathered is not narrowly tailored to
achieve Union Township’s purported interest in promoting the general health, safety, and welfare
of its citizens. In support of this argument, Deja Vu cites Schultz v. City of Cumberland, 228 F.3d
831, 852 (7th Cir. 2000), in which the Seventh Circuit invalidated a provision requiring an applicant
to disclose his or her residential address, concluding that such information “is not narrowly tailored
to the government’s interest in the time, place or manner of adult entertainment.” Deja Vu also
claims that the collection of personal information creates a substantial danger because, pursuant to
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 13
Ohio’s Public Records Act, Ohio Revised Code § 149.43(A)(1) and (B), such disclosures would be
considered to be public records. Given that public records can be reviewed by anyone, Deja Vu
contends that the personal safety of individuals applying for an adult cabaret license might be
jeopardized.
This tension between the legitimate governmental need for such information and the
reasonable concerns of adult-cabaret licensees for their personal safety was resolved by this court
in Deja Vu of Nashville, Inc., 274 F.3d at 394. The court upheld the Nashville ordinance’s required
disclosures, but only after concluding that Kallstrom v. City of Columbus, 136 F.3d 1055, 1064-65
(6th Cir. 1998), prohibits public release of the applicants’ names and current and past residential
addresses. Deja Vu of Nashville, Inc., 274 F.3d at 394. Like the plaintiffs in Deja Vu of Nashville,
Inc., the plaintiffs in the present case have presented “significant evidence that the requirement that
applicants submit their names and . . . addresses to a public forum poses serious risks to their
personal security.” Id. We therefore conclude that the resolution’s disclosure provisions are
constitutional, but that the names and other information that are gathered pursuant to those
provisions constitute protected private information that are exempted from Ohio’s Public Records
Act. See Ohio Rev. Code § 149.43; see also Deja Vu of Nashville, Inc., 274 F.3d at 395 (holding
that “all sexually oriented business license and permit applicants’ names and current and past
residential addresses constitute protected private information and are therefore exempted from
Tennessee’s Open Records Act”).
E. Civil disability
Deja Vu also claims that the civil-disability provisions included in the resolution violate the
First Amendment. The current resolution states that an application will be denied if “[t]he applicant
or any person named in the application for an initial or renewal permit to operate an adult cabaret”
has been convicted of or pled guilty to (1) a violation of Ohio Revised Code § 503.53(C) within the
past five years, or (2) a sex offense covered by Ohio Revised Code § 2907 within the past three
years. Resolution No. 00-22 § (F)(2)(e) and (f).
Ohio Revised Code § 503.53(C) prohibits certain sexual conduct from taking place within
an adult cabaret, including restrictions on the display or touching of the entertainers’ breasts,
buttocks, or genitals. Along with sexual assaults and prostitution, Ohio Revised Code
§§ 2907.02-.34 also prohibit public indecency, disseminating matter harmful to juveniles, pandering
obscenity, and compelling the acceptance of objectionable materials. Because the civil-disability
provisions implicate the behavior of “[t]he applicant or any person named in the application,” Deja
Vu claims that the ability to operate an adult cabaret is conditioned on the criminal record of not
only the applicant, but also on the record of the owners, partners, and employees of the business.
In evaluating whether the civil-disability provisions are permissible, the district court applied
the four-part test outlined in United States v. O’Brien, 391 U.S. 367 (1968). The district court
focused on (1) whether the civil disabilities actually further the asserted governmental interest, and
(2) whether the burden imposed by the provisions is greater than necessary to accomplish its
purpose. Union Township relied upon two studies that specifically focused on the adverse
secondary effects of adult cabarets. After reviewing these studies, the district court concluded that
the civil-disability provisions “further[] an important or substantial interest in the protection of
public safety.” The district court then decided that the civil-disability provisions do not “unduly
restrict the right of persons in Union Township to express an erotic message and leaves available
the alternative avenue of expression.” (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 587
(1991)).
On appeal, the defendants contend that Deja Vu does not have standing to challenge the
civil-disability provisions because “it has not yet applied for a permit and there is no allegation that
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 14
the person or entity applying for the permit is subject to either of the[] disability provisions.” To
have constitutional standing necessary to maintain a lawsuit, “(1) a plaintiff must have suffered some
actual or threatened injury due to the alleged illegal conduct of the defendant; (2) the injury must
be ‘fairly traceable’ to the challenged action; and (3) there must be a substantial likelihood that the
relief requested will redress or prevent the plaintiff’s injury.” Deja Vu of Nashville, Inc., 274 F.3d
at 389.
Deja Vu claims that it has standing on this issue because Jane Roe II, a female dancer who
performs at Deja Vu, was “convicted in April 1997 of an offense substantially equivalent to Ohio
Revised Code [§] 2907 (obscenity and various sexual offenses).” After the district court issued its
decision, however, the original resolution was amended so that the employment restrictions now
apply only to those individuals who have committed § 2907 sex offenses within the last three years.
Resolution No. 00-22 § (F)(2)(e). Jane Roe II’s 1997 conviction is thus insufficient to give Deja Vu
standing to challenge the civil-disability provisions. For the same reason, neither the 1989 obscenity
conviction of John Doe I, who has a two-percent ownership interest in Deja Vu, nor the 1992
obscenity conviction of John Doe II, who is employed by Deja Vu as a disc jockey, is sufficient to
establish Article III standing for Deja Vu.
Moreover, Union Township points out that the resolution no longer requires the disclosure
of employees in the application or provides for the revocation of a license based upon prior criminal
convictions of employees. The original resolution provided that “[a]n application for an initial
permit to operate an adult cabaret shall contain . . . [t]he full name, residence address, date of birth,
and social security number of each person employed by the adult cabaret . . . .” Resolution No. 99-
15 § (D)(5)(f). This requirement was eliminated, however, from the new resolution. Resolution 00-
22 § (D). Although, as noted above, the resolution still requires a licensee to maintain a list of
employees with the Clerk, Resolution No. 00-22 § (M)(3), employees are no longer “named in the
application for an initial or renewal permit to operate an adult cabaret.” Id. § (F)(2)(e)-(f). As a
result, the civil-disability provisions do not apply to employees. The criminal record of Jane Roe
II or any other employee is therefore insufficient to subject Deja Vu to a permit denial or revocation
based on the civil-disability provisions. Deja Vu has thus not alleged sufficient injury in fact to
establish Article III standing on this issue.
We recognize that “a defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). In the present case, however, Union Township
eliminated the challenged provisions even though the district court held that there was a substantial
likelihood that the provisions were in fact valid. This is in contrast to the more typical situation
presented by Deja Vu of Nashville, Inc., in which the municipality amended its ordinance only after
certain provisions were voided by the district court, and where the municipality “repeatedly
expressed its intention to reenact those portions of the Ordinance judged unconstitutional . . . at the
earliest opportunity.” 274 F.3d at 387. Under those circumstances, this court held that the
amendments did not moot the issues on appeal. Id.
In the present case, the civil-disability provisions in question were not held unconstitutional
by the district court, and Union Township has not announced an intention to reenact those provisions
if the issue is dismissed as moot. The principle announced in Mesquite is therefore inapplicable.
See Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997) (concluding that “the City’s
announced intention to reenact the unconstitutional ordinance if the case was dismissed as moot”
was “[c]ritical to the Court’s decision” in Mesquite).
Deja Vu still contends, however, that the civil-disability provisions are unconstitutional
because “the rapid turnover of entertainers and others in this industry insures that this issue is
capable of repetition, yet evading review . . . .” See Int’l Org. of Masters, Mates & Pilots v. Brown,
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 15
498 U.S. 466, 473 (1991). This argument focuses on the transient nature of employment by adult
cabarets. But, as noted above, the resolution no longer requires the disclosure of employees in the
application or provides for the revocation of a license based upon any prior criminal convictions of
employees. The fact that Jane Roe II committed a sex crime more than three years ago is thus
irrelevant to the determination of whether Deja Vu has standing.
For all of the above reasons, we conclude that Deja Vu does not have standing to challenge
the resolution’s civil-disability provisions.
F. Health and safety inspections
After concluding that Deja Vu was likely to establish that the warrantless health-and-safety-
inspection provisions contained in §§ (L)(1) and (M)(2) of Resolution No. 99-15 violated the Fourth
Amendment, the district court enjoined Union Township from enforcing those provisions.
Resolution No. 99-15 § (L)(1) provided that “Township personnel or agents may at all reasonable
times inspect permit premises to insure continued compliance with the laws of Ohio and these
regulations.” Section (M)(2) stated that “[t]he owner, operator, or person in charge of the adult
cabaret shall allow state or local authorities, including law enforcement officers, access to any and
all parts of the premises for the purpose of making any health or safety inspection pursuant to these
regulations, and shall cooperate in any background investigation.”
Union Township amended the resolution in response to the district court’s ruling that Deja
Vu was likely to prevail in its argument that the warrantless health and safety inspections violate the
Fourth Amendment. The current resolution no longer contains those provisions, and Union
Township has not appealed the district court’s order enjoining it from performing health and safety
inspections. Ohio’s Attorney General, however, has filed a cross-appeal in the present case, asking
us to reverse the district court’s injunction on this ground. But the Attorney General’s ability to seek
appellate review of this issue, when neither Union Township nor Deja Vu has appealed from the
district court’s decision, is limited by his status as an intervenor. The controlling statute is 28 U.S.C.
§ 2403(b), which provides in pertinent part as follows:
In any action, suit, or proceeding in a court of the United States to which a State . . .
is not a party, wherein the constitutionality of any statute of that State affecting the
public interest is drawn in question, the court . . . shall permit the State to intervene
for presentation of evidence . . . and for argument on the question of
constitutionality. The State shall, subject to the applicable provisions of law, have
all the rights of a party . . . to the extent necessary for a proper presentation of the
facts and law relating to the question of constitutionality.
The Ohio Attorney General was permitted to intervene in the present suit in order to defend
the constitutionality of Ohio’s enabling statute, Ohio Revised Code §§ 503.51-59. This is the statute
that permits townships to pass local ordinances regulating the operations of adult cabarets within
their borders. In finding that the warrantless health and safety inspections provided for by the Union
Township resolution were violative of the Fourth Amendment, the district court made no ruling with
respect to the constitutionality of the Ohio enabling statute. See Int’l Paper Co. v. Inhabitants of
the Town of Jay, 887 F.2d 338, 342 (1st Cir. 1989) (“[T]he relevant authority as well as the statutory
language indicate that a local ordinance is not a statute within section 2403(b), and we are not aware
of any substantial support for [a] broader interpretation.”).
Absent from the district court’s discussion is any mention whatsoever of Ohio Revised Code
§§ 503.53 or 503.56, the sections of the enabling statute that permit townships to conduct health and
safety inspections of adult cabarets. The district court concluded that the Union Township
resolution was likely to be unconstitutional because the resolution required adult cabarets to submit
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 16
to warrantless inspections “at all reasonable times.” Resolution No. 99-15 § (L)(1). Because it
failed to define “reasonable,” the district court found that the Union Township resolution “vest[ed]
unfettered discretion in township officials.” Ohio’s enabling statute, in contrast, contains no such
language, and instead simply requires that adult cabarets “[u]ndergo periodic health and safety
inspections to determine continual compliance with applicable health and safety codes.” Although
it enjoined the enforcement of the Union Township resolution, the district court left open the
possibility that a township might enact a local resolution pursuant to the Ohio enabling statute that
was in fact constitutional.
Because neither Union Township nor Deja Vu has raised this issue on appeal, and because
the constitutionality of the Ohio enabling statute is not at issue, we decline to review the district
court’s grant of a preliminary injunction against the enforcement of the health-and-safety-inspection
provisions of now-repealed Union Township Resolution No. 99-15. See Blair v. Shanahan, 38 F.3d
1514, 1522 (9th Cir. 1994) (holding that “28 U.S.C. § 2403(b) does not allow a State standing to
participate in a motion where questions of constitutionality [of a state statute] are not among the
issues argued”); see also Ruotolo v. Ruotolo, 572 F.2d 336, 339 (1st Cir. 1978) (“There is . . . a
difference between permitting the [§ 2403 intervenor] to play an active role during the pendency of
private litigation, and permitting it to go forward with the litigation in its own right after the private
parties have composed their differences.”).
Even though we express no opinion on the constitutionality of the warrantless health and
safety inspections, the district court’s temporary injunction remains in effect, and we find nothing
in the record to indicate that Union Township will attempt to reenact the provisions already deemed
offensive to the Fourth Amendment. If the district court should abruptly change course on remand
and fail to permanently enjoin Union Township from conducting the warrantless health and safety
inspections, that determination would of course be reviewable by this court on appeal from a final
judgment below.
G. Vagueness
Deja Vu finally claims that several of the resolution’s provisions are unconstitutionally
vague. Specifically, Deja Vu complains that the resolution completely fails to define the phrases
“adequate supervision” in § (M)(4) or “reasonable cause” in § (L), and fails to adequately define the
terms “employee” in § (A)(3), “touching” in § (N)(4)(b), or “uncover” in § (N)(4)(c).
“[A]n enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972) (holding that Rockford’s antinoise ordinance was not
unconstitutionally vague). Vague laws are problematic because they (1) “may trap the innocent by
not providing fair warning,” (2) fail to “provide explicit standards for those who apply them,” and
(3) threaten “to inhibit the exercise of [First Amendment] freedoms.” Id. at 108-09 (quotation marks
and footnote omitted). A law must therefore “give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly.” Id. at 108.
The Supreme Court has explained that, “[c]ondemned to the use of words, we can never
expect mathematical certainty from our language.” Id. at 110. With this point in mind, we are of
the opinion that, although the specific terms may not be defined with “meticulous specificity, . . .
it is clear what the ordinance as a whole prohibits.” Id. (citation and quotation marks omitted).
Each of the terms challenged by Deja Vu is commonly used in both legal and common parlance, and
is thus sufficiently clear so that a reasonable person can understand its meaning. We therefore
conclude that the challenged terms are not unconstitutionally vague.
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 17
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the district court’s decision to deny in
part the preliminary injunction, express NO OPINION on the district court’s decision to grant in
part the preliminary injunction in light of Union Township’s subsequent modification of the
resolution, and REMAND the case for further proceedings consistent with this opinion.
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 18
_______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_______________________________________________________
CLAY, Circuit Judge, with whom Judges DAUGHTREY and COLE join, concurring in part
and dissenting in part. I concur in Parts II.D (Disclosure of personal information), II.E (Civil
disability), II.F. (Health and safety inspections), and II.G (Vagueness) of the majority opinion. For
the reasons that follow, however, I dissent with respect to Parts II.B (Prompt judicial review) and
Part II.C (Hours of operation).
I.
RIGHT TO PROMPT JUDICIAL REVIEW
OF ADVERSE LICENSING DECISION
Deja Vu argues that Resolution No. 00-22 creates an unlawful prior restraint on its First
Amendment right to free speech because it fails to provide for prompt judicial review of an adverse
decision by the Union Township Board of Trustees (“Board” or “Township”) to refuse to grant or
renew, or to revoke, a permit to operate an adult cabaret. The majority rejects this argument,
reasoning that not only does Ohio law provide for the same type of judicial review mechanism that
the Supreme Court endorsed in City of Littleton v. Z.J. Gifts D-4, L.L.C., 124 S. Ct. 2221 (2004), but
also that the Resolution provides an additional First Amendment safeguard by requiring the issuance
of a temporary permit pending judicial review. The majority’s analysis is fundamentally misguided,
however, because Ohio law does not provide any judicial review whatsoever for a substantial
number of adverse licensing decisions.
Resolution No. 00-22 § (C) prohibits any person from engaging in, conducting, or carrying
on an adult cabaret “without a valid, current permit” issued pursuant to the Resolution’s regulations.
Resolution No. 00-22 § (A)(1) defines an “adult cabaret” to mean an establishment “in which
persons appear in a state of nudity in the performance of their duties,” and Section (N)(4) prohibits
an employee of an adult cabaret, “in the performance of his or her duties,” from touching or fondling
certain specified anatomical areas of his or her body or on any other person. The Resolution’s
preamble acknowledges that adult cabarets may engage in “activities protected by the First
Amendment.” Resolution No. 00-22, Preamble at ¶ E; see also City of Erie v. Pap’s A.M., 529 U.S.
277, 289 (2000) (holding that nude erotic dancing is constitutionally-protected, even though it “falls
only within the outer ambit of the First Amendment’s protection”); Schultz v. City of Cumberland,
228 F.3d 831, 836, 843 (7th Cir. 2000) (holding that the term “performances” in a city ordinance that
regulated “live performances which are characterized by the exposure of ‘specified anatomical
areas’ or ‘specified sexual activities’… undeniably denotes communicative content and applies
explicitly to expression, not mere conduct”). Consequently, Union Township’s licensing scheme
is a classic “prior restraint” on constitutionally protected expression because the Resolution gives
“public officials the power to deny use of a forum in advance of actual expression.” Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975).
Any system of prior restraint comes to this Court “bearing a heavy presumption against its
constitutional validity.” Id. at 558 (internal quotation marks and citations omitted). “The
presumption against prior restraints is heavier – and the degree of protection broader – than that
against limits on expression imposed by criminal penalties.” Id. at 558-59. Thus,”[t]he settled rule
is that a system of prior restraint ‘avoids constitutional infirmity only if it takes place under
procedural safeguards designed to obviate the dangers of a censorship system.’” Id. at 559 (quoting
Freedman v. Maryland, 380 U.S. 51, 58 (1965); other citations omitted). Among those required
safeguards is that the censor must assure “a prompt final judicial determination” of the propriety of
restraining the expression. Id. at 560 (following Freedman). The purpose of this safeguard is to
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 19
provide review of a censorship decision by an independent branch of government, which may be
more responsive to constitutionally protected interests in free expression. Id. at 560-61. Union
Township’s Resolution fails to provide this basic constitutional protection.
Under the Resolution, an individual desiring to operate an adult cabaret must file an
application with the Board and authorize an investigation into his or her background, “including any
criminal record, of the applicant and any person or entity named in the application, including
authorization to conduct subsequent investigations to supplement or update the information.”
Resolution No 00-22 § (D)(5)(g). Upon receipt of the application, the chief of the Union Township
police department conducts the prescribed criminal background check. Id. § (E).
After conducting a public hearing, the Board is required to approve the application for a
permit, unless, inter alia, (1) in the past three years, the applicant or any person named in the
application has been convicted of a sex offense under Ohio Revised Code Ch. 2907 (prohibiting
rape, sexual battery, unlawful sexual contact with a minor, sexual imposition, importuning,
voyeurism, and public indecency); (2) in the past five years, the applicant or any person named in
the application has been convicted of an offense under Ohio Revised Code § 503.53(C), which
prohibits adult cabaret employees from touching, fondling, massaging, or displaying their own or
any other person’s genitals, pubic area, buttocks, or (female) breasts; or (3) the applicant has
violated the Resolution’s regulations, which, among other things, make it unlawful for an adult
cabaret to employ a person under age 18 and prohibits the acts criminalized by Ohio Revised Code
§ 503.53(C). Resolution No. 00-22 §§ (F)(2)(e)-(g) and (N). The Board may revoke a permit after
a public hearing “upon discovery of a violation” of the Resolution’s regulations. Id. § (I).
The Resolution provides that an applicant denied a new permit or a renewal permit or an
individual whose permit is revoked by the Board “may appeal the action of the Board in accordance
with chapter 2506 of the Ohio Revised Code.” Resolution No. 00-22 §§ (J)(1)-(2). Similarly, the
Ohio Revised Code provides that “[a]ny person adversely affected by an order of the board denying
or revoking a permit to operate an adult cabaret may appeal from the order of the board to the court
of common pleas…in accordance with Chapter 2506[ ] of the Revised Code.” OHIO REV. CODE
ANN. § 503.57. Although Chapter 2506 of the Code authorizes the appeal of a final order,
adjudication, or decision of a municipality’s board of trustees, it does not permit the appeal of “any
order, adjudication, or decision that is issued preliminary to or as a result of a criminal proceeding.”
OHIO REV. CODE § 2506.01.
As explained below, the Resolution is structured so that the Board may refuse to grant new
permits, refuse to renew permits, or revoke current permits based not only on a final criminal
conviction for a sex offense (e.g., rape, sexual battery, sexual imposition, voyeurism, public
indecency, or touching or displaying one’s genitals or buttocks in an adult cabaret), but also on
merely the applicant’s pending criminal charges for a sex offense or the fact that the applicant is the
subject of a criminal investigation for such an offense. Consequently, many, if not most, of the
Board’s decisions to not renew or revoke permits for adult cabarets are likely to be unreviewable
because they are issued “preliminary to or as a result of a criminal proceeding.” Id.
First, new applicants for an adult cabaret permit must submit to a criminal background check
by the Union Township police, and will be denied a permit if found to have pled guilty to, or been
convicted of, an offense proscribed by Ohio Revised Code Ch. 2907 or § 503.53(C). Such
application denials are the “result of a criminal proceeding” under the most common-sense
interpretation of those words and, therefore, such denials are unreviewable. OHIO REV. CODE
§ 2506.01 (emphasis added). Similarly, current permit holders may have their permits revoked
should the Board “discover[]” a violation of the Resolution, which includes the aforementioned
criminal prohibitions. To the extent the Board revokes a permit as a consequence of a guilty plea
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 20
or a conviction for one of these offenses, this decision is unreviewable because it is “issued…as a
result of a criminal proceeding.” OHIO REV. CODE § 2506.01 (emphasis added).
Second, a license revocation is unreviewable where the Board, working with the Union
Township police department and local prosecutors, discovers or becomes aware of a suspected
criminal offense for which a conviction has not yet materialized, such as where the permit holder
has been charged with a sex offense or is merely being investigated for such an offense See, e.g.,
J.A. 114-15 (Affidavit of Union Township Administrator, Kenneth Geis, at ¶ 8) (explaining the
Township’s concerns undergirding a prior version of the Resolution, and recounting an incident at
an adult cabaret where “a dancer and a patron were charged with prostitution and related offenses”
and “[a]nother person was charged with abduction, gross sexual imposition and felonious sexual
penetration for actions which occurred inside the cabaret”). The Board’s decision not to issue or to
revoke a permit on the ground that the applicant merely has been charged with, or is suspected of,
violating the criminal laws against, for example, sexual imposition, voyeurism, public indecency,
or touching or displaying genitals, is unreviewable as a decision issued “preliminary to…a criminal
proceeding.” Id. (emphasis added). In other words, under the present wording of the Resolution,
mere allegations of certain sex offenses may lead to a nonappealable permit revocation.
Try as it might, the majority cannot evade the plain language of § 2506.01 which, as shown
above, deprives the Ohio courts of jurisdiction over numerous adverse licensing decisions. The
majority makes much of the fact that there appears to be no published Ohio authority denying
judicial review of a licensing decision that was rendered preliminary to or as a result of a criminal
proceeding. Yet, the majority fails to mention that there similarly is no published authority
permitting judicial review of such a decision. Thus, the absence of Ohio authority proves nothing.
Moreover, it is the majority, not the dissent, which is “far-reaching” in ignoring the plain
language of § 2506.01 and holding, without any citation to Ohio authority, that the Ohio legislature
enacted § 2506.01 in order to prevent criminal defendants from circumventing normal appellate
procedures by precluding them from seeking interlocutory appeals in the Ohio Court of Common
Pleas. Although the majority is correct that we must resort to every reasonable construction in order
to save a legislative act from unconstitutionality, the majority’s construction of § 2506.01 is
unreasonable because it is divorced from the clear and plain meaning of the statute’s words and
relies entirely on an invented legislative intent. Accordingly, the majority has not saved § 2506.01
through an alternative, reasonable construction. It has completely (and inappropriately) re-written
the statute. See Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir. 1991) (“[T]he general federal
rule is that courts do not rewrite statutes to create constitutionality.”)
Because the purpose and structure of the Resolution authorizes the Township to revoke or
not to renew an adult cabaret’s license to operate as a result of an impending or final criminal
proceeding, it follows that Ohio Revised Code § 2506.01 is simply not applicable and that
Resolution No. 00-22 in reality does not provide for any judicial determination of an adverse
licensing decision in many cases. For this reason, and because any system of prior restraint comes
to this Court “bearing a heavy presumption against its constitutional validity,” Southeastern
Promotions, 420 U.S. at 558 (internal quotation marks and citations omitted), I would hold that
Union Township’s licensing scheme amounts to an unconstitutional prior restraint on Deja Vu’s
protected expression.
II.
HOURS OF OPERATION PROVISION
Under the First Amendment, content-neutral restrictions on expressive conduct, such as
regulations of nude dancing or adult theaters for their adverse secondary effects, must be “narrowly
tailored to serve a significant governmental interest.” Clark v. Community for Creative Non-
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 21
Violence, 468 U.S. 288, 293 (1984); see also City of Erie, 529 U.S. at 289-96; City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 48 (1986). Such restrictions “need not be the least restrictive
or least intrusive means” of serving the Township’s legitimate content-neutral interest, but the means
chosen cannot be “substantially broader than necessary” to achieve that interest. Ward v. Rock
Against Racism, 491 U.S. 781, 798-800 (1989). By requiring non-alcohol-serving cabarets to close
by midnight, but permitting alcohol-serving cabarets to offer nude dancing until 2:30 a.m., the
Resolution’s means of regulating the undesirable combination of nude dancing and alcohol
consumption is substantially broader than necessary1because it unnecessarily forecloses a substantial
amount of constitutionally-protected expression. Accordingly, the district court abused its
discretion2 in failing to enjoin the Township’s enforcement of the hours of operation provision.
Although the Township claims that the hours of operation regulation is “an attempt to close
adult cabarets before the bars and taverns in the area close to avoid unruly and intoxicated men from
entering during the late night hours,” Defs’ Br. at 30, it fails to adequately explain the disparate
treatment accorded adult cabarets that have liquor licenses and those that do not. Because both Ohio
law and the Resolution allow adult cabarets that serve alcohol to stay open until 2:30 a.m., there is
no reason why the Resolution’s greater limitation on the hours of operation of other adult cabarets
is necessary to further the Township’s interest in minimizing the secondary effects of sexually
oriented businesses. As Deja Vu has pointed out, numerous courts have concluded that sexually
oriented businesses that serve alcohol actually present an increased risk of adverse secondary
effects. See, e.g., N.Y. State Liquor Auth. v. Bellanca, 452 U.S. 714, 718 (1981) (“Common sense
indicates that any form of nudity coupled with alcohol in a public place begets undesirable
behavior.”). The more restrictive limitation on the hours of operation of adult cabarets that do not
serve alcohol is thus unwarranted.
The Township’s purported inability to regulate the hours of alcohol-serving cabarets due to
conflicting state liquor laws3 is irrelevant to the constitutional analysis. If the Township’s true
concern is limiting the secondary effects of nude dancing after midnight, then it logically would
have required all cabarets to cease nude dancing at midnight, even though the cabarets that serve
alcohol legally could remain open later pursuant to their liquor permits (but not offer nude dancing
after midnight). Instead, the Resolution addresses the secondary effects illogically, by permitting
patrons of alcohol-serving cabarets to increase their level of intoxication after midnight while
simultaneously eliminating an alcohol-free option after midnight for people who have consumed
liquor at other local bars and taverns. Under the Resolution, patrons of bars and taverns who wish
to frequent an adult cabaret after midnight have no choice but to go to a cabaret that not only serves
liquor but which already may have a contingent of intoxicated patrons in attendance, thereby
exacerbating the purportedly volatile mix of alcohol and erotica. The Township’s willingness to
tolerate – and, indeed, encourage – this far more palpable and obvious risk of negative secondary
1
See J.A. 67 (Affidavit of Jason Garvey, general manager of the Deja Vu club in Cincinnati) (stating that “the
most popular time of the day for customers to visit are the late evening hours, and specifically between 10:00 p.m. and
3:00 a.m.”; further opining that, based on his experience, the club would not recapture the dances that the customers
would normally purchase after midnight from customers coming to the club earlier in the evening).
2
We review the grant or denial of a preliminary injunction for an abuse of discretion. Allied Sys., Ltd. v.
Teamsters Nat’l Auto. Transporters Indus. Negotiating Comm., 179 F.3d 982, 985 (6th Cir. 1999) (citation omitted).
“An abuse of discretion exists when the district court applies the incorrect legal standard, misapplies the correct legal
standard, or relies upon clearly erroneous findings of fact.” Id. at 985-86 (internal quotation marks and citation omitted).
A district court’s findings of fact are reviewed for clear error, and its conclusions of law de novo. Id. (citation omitted).
3
See Maj. Op. at 10; Resolution No. 00-22 § M(1) (“Adult cabarets shall close no later than 12:00 Midnight
or not later than the closing time required under its permit to sell alcoholic beverages, whichever is later….”).
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 22
effects demonstrates the complete mismatch between the Township’s interest in ameliorating
negative secondary effects and the means it has chosen to achieve that end.
Contrary to the majority’s mischaracterization, I do not “propose[] as a solution the more
speech-restrictive alternative” of requiring all cabarets to cease nude dancing at midnight. Maj. Op.
at 12. I only point out the patently ridiculous and irrational manner in which the Township has
attempted to address its purported goal of minimizing the secondary effects associated with the
combination of nude dancing and alcohol. Because the Township has failed to articulate any logical,
let alone empirically supported, basis for requiring non-alcohol-serving cabarets to close several
hours earlier than those that serve alcohol, my only “proposal” is that the midnight closing time for
non-alcohol-serving cabarets is unconstitutional. The implication of this proposal is that, on this
record, non-alcohol-serving cabarets should be permitted to remain open at least as late as their
alcohol-serving counterparts. Although the Township can act incrementally to alleviate negative
secondary effects, it cannot act arbitrarily, which it has done in this case.
The majority also is misguided in asserting that Union Township has “relied upon research
suggesting that the patrons of alcohol-free adult cabarets are often more unruly because these
cabarets are frequently patronized later in the evening by customers who have become intoxicated
at other establishments.” Maj. Op. at 10 (emphasis added). The Township has cited no such
research whatsoever. The only justification that Union Township has proffered on the subject of
closing times is contained in the affidavit of Union Township’s administrator, Kenneth Geis. The
Geis affidavit states, in relevant part:
The closing time of Midnight was included in an effort to insure the adult cabaret
would close before the closing time of the bars and taverns in the area. There was
concern that during the hours after Midnight there was a greater chance that
intoxicated male patrons would cause a danger to themselves and to the employees
of the adult cabarets and would cause increased criminal activity in the surrounding
neighborhood.
(J.A. 105, ¶ 12.) The affidavit does not refer to any “research” showing that (a) alcohol-free
cabarets are more unruly after midnight and (b) customers who have become intoxicated elsewhere
are responsible for this purported increase in unruliness after midnight. Instead, the affidavit
references only the speculative “concern” of some unidentified persons that there was “a greater
chance” that drunken men would leave local bars after midnight, frequent adult cabarets, and
become unruly. The Resolution’s preamble also fails to mention any research in support of these
hypotheses.4
Although the First Amendment did not require the Township, before enacting the Resolution,
to conduct new studies or produce evidence independent of that already generated by other
municipalities, it nevertheless had to rely on some “evidence” that was “reasonably believed to be
relevant to the problem” that the midnight closing time for non-alcohol-serving cabarets was
designed to address. Renton, 475 U.S. at 51-52; accord Weinberg v. City of Chicago, 310 F.3d
1029, 1038 (7th Cir. 2002) (“In the context of a First Amendment challenge under the narrowly
tailored test, the government has the burden of showing that there is evidence supporting its
4
The majority correctly notes that Geis’s affidavit documents instances of patrons engaging in criminal activity
in an adult cabaret. Maj. Op. at 10-11. The majority fails to mention, however, that the criminal activity took place at
an alcohol-serving cabaret and that the consumption of alcohol exacerbated the activity. See J.A. 104-05, at ¶ 8 (“There
were numerous liquor law violations associated with the operation of the establishment.… A police officer attempting
to effect an arrest of an intoxicated patron was seriously assaulted. The patron pled guilty to assault, resisting arrest, and
DUI.”). Thus, this empirical evidence does not support an earlier closing time for adult cabarets that do not serve
alcohol. In addition, because Geis does not indicate the time of day during which this criminal activity took place, this
empirical evidence also does not justify a midnight closing time.
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 23
proffered justification.”) (citing DiMa Corp. v. Town of Hallie, 185 F.3d 823, 829 (7th Cir. 1999)).
The Township cannot “get away with shoddy data or reasoning.” City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425, 438 (2002). Its “evidence must fairly support the municipality’s rationale
for its ordinance.” Id. Here, there is no empirical evidence – let alone, “research” – that rationally
supports a substantially earlier closing time for non-alcohol-serving cabarets. Cf. Executive Arts
Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 796-97 (6th Cir. 2004) (holding that zoning
ordinance for adult book sellers was facially invalid because it was not narrowly tailored; reasoning
that “the City has cited no basis, study or third party experience that would lead one to believe that
such a broad ordinance is needed to control undesirable blight rather than merely being an attempt
to control undesired speech”).
For similar reasons, the Resolution’s hours of operation provision runs afoul of the Equal
Protection Clause of the Fourteenth Amendment. It does not bear “a rational relationship to a
legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).
Deja Vu correctly argues that the Township seeks to regulate and possibly prevent operators of adult
cabarets that do not serve liquor from engaging in constitutionally protected conduct during certain
times, midnight to 2:30 a.m., while arbitrarily excluding operators of adult cabarets that serve liquor
from this hours of operation restriction. Such a difference in classification and application of the
resolution is irrational, and thus unconstitutional under the Equal Protection Clause, because it fails
to advance the Township’s legitimate interests in minimizing the adverse secondary effects of
sexually oriented businesses. See id. at 447-48.
For the foregoing reasons, I would hold that the Resolution’s hours of operation provision
violates the First Amendment and Equal Protection Clause of the Fourteenth Amendment.
III.
CONCLUSION
In summary, the Township’s Resolution is unconstitutional because it does not provide for
judicial review of a significant number of adverse licensing decisions. As a consequence, it
constitutes a prior restraint on freedom of expression as guaranteed under the First Amendment of
the United States Constitution. In addition, Deja Vu is entitled to a preliminary injunction as to the
Resolution’s hours of operation provision because it violates both the First Amendment and the
Equal Protection Clause of the Fourteenth Amendment. For all of the reasons set forth above, I
would affirm in part and reverse in part the district court’s order granting a preliminary injunction.
Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 24
___________________________
DISSENTING IN PART
___________________________
BOYCE F. MARTIN, JR., Circuit Judge, with whom Judges DAUGHTREY and MOORE
join, dissenting in part. We join Judge Clay’s dissent concluding that the ordinance amounts to an
unconstitutional prior restraint on protected expression. The ordinance simply fails to provide for
judicial review of a Board decision to not renew or to revoke a permit for an adult cabaret when the
decision is issued “preliminary to or as a result of a criminal proceeding.” We also agree with Judge
Clay that the hours of operation provision fails the constitutional standard of being “narrowly
tailored to serve a significant governmental interest.” The ordinance therefore violates the First
Amendment. Because we would invalidate the hours of operation provision on First Amendment
grounds, we would not reach the parties’ Equal Protection challenge.