Gammoh v. City of La Labra

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BILL BADI GAMMOH, dba Taboo  No. 04-56072
Theater aka Pelican Theater; D.C. No.
LESLIE WEST; ARMINE MICHELLE CV-03-00911-GLT
BEDROSIAN; CHRISTINE JOHANNA
FENER; CHARBONESSE GARRETT; ORDER
HEATHER ELOISE ELAM; STACY JOY AMENDING
ANDRE; MEGHANN LARA ANN  OPINION AND
ONSELEN, DENYING
Plaintiffs-Appellants, PETITION FOR
REHEARING EN
v. BANC AND
CITY OF LA HABRA, AMENDED
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted
November 1, 2004—Pasadena, California
Filed January 26, 2005
Amended April 1, 2005
Before: A. Wallace Tashima, Raymond C. Fisher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
3907
3910 GAMMOH v. CITY OF LA HABRA
COUNSEL
Scott W. Wellman and Stuart Miller, Wellman & Warren,
Laguna Hills, California, for the plaintiffs-appellants.
GAMMOH v. CITY OF LA HABRA 3911
Deborah J. Fox and Dawn A. McIntosh, Fox & Sohagi, Los
Angeles, California, for the defendant-appellee.
Scott D. Bergthold, Chattanooga, Tennessee, for Amicus
Curiae League of California Cities.
ORDER
The court’s opinion, filed January 26, 2005, is amended as
follows:
The second paragraph on slip op. 1131, under heading “C”,
line 3: the words “leaves open” are deleted and replaced with,
“does not unreasonably limit”.
Slip op. 1135, first paragraph, line 2: the word “ample”
shall be inserted between “open” and “alternative”.
With these amendments, Judges Fisher and Tallman have
voted to deny the petition for rehearing en banc and Judge
Tashima so recommends. The full court has been advised of
the petition for rehearing en banc. No judge has requested a
vote on whether to rehear the matter en banc. Fed. R. App. P.
35.
The petition for rehearing en banc is DENIED. No further
petitions for rehearing or petition for rehearing en banc shall
be entertained.
OPINION
TALLMAN, Circuit Judge:
This case involves constitutional challenges to a city ordi-
nance requiring “adult cabaret dancers” to remain two feet
3912 GAMMOH v. CITY OF LA HABRA
away from patrons during performances. The district court
rejected these challenges by dismissing some of the Appel-
lants’ claims on the pleadings and granting summary judg-
ment as to other claims. We denied emergency motions for a
stay of enforcement of the Ordinance pending appeal and now
affirm.
I
The City of La Habra’s (City’s) Municipal Ordinance 1626
(“Ordinance”) regulates adult businesses. The first section of
the Ordinance contains extensive findings that adult busi-
nesses generate crime, economic harm, and the spread of sex-
ually transmitted diseases. These findings are based on studies
and police declarations from other jurisdictions, federal and
state judicial opinions, and public health data from surround-
ing southern California counties. Ordinance, § 1. Other sec-
tions of the Ordinance contain regulations purporting to
address the secondary effects described in the first section,
including a prohibition of physical contact between patrons
and performers (the “no-touch rule”) and a requirement that
adult cabaret dancers perform at least two feet away from
their patrons (the “two-foot rule”). Ordinance, §§ 4, 7.
The Appellants are Bill Badi Gammoh, the owner of an
adult establishment in the City, several dancers at Gammoh’s
club, and a dancer who has been offered employment at Gam-
moh’s club but has not yet accepted it. Gammoh’s establish-
ment, which does not serve alcoholic beverages, features
entertainment by dancers who perform nude on stage and then
dress in minimal clothing before offering one-on-one offstage
dances.1 The Appellants do not challenge the provisions of the
1
Early in this litigation before the district court the Appellants used the
term “lap dance” to refer to these performances. They later distanced
themselves from this term, preferring “clothed proximate dancing”
instead. We reference these individual, close-up performances using the
term “offstage dancing” because the City regulates nude on-stage perfor-
mances separately from partially-clothed offstage performances and it is
the latter set of regulations that are challenged here.
GAMMOH v. CITY OF LA HABRA 3913
Ordinance governing on-stage dancing and other aspects of
the operation of an adult cabaret; they challenge only the two-
foot rule.
Three weeks after the City Council passed the Ordinance,
the Appellants filed their constitutional challenge in the Supe-
rior Court of California for Orange County. The case was sub-
sequently removed to the United States District Court for the
Central District of California. The Appellants were unsuccess-
ful before the district court. In addition to other rulings that
the Appellants do not challenge on appeal, the district court
dismissed the Appellants’ overbreadth argument and part of
their vagueness challenge with prejudice, and entered sum-
mary judgment in favor of the City on their regulatory takings
claim, a First Amendment challenge, and the remaining
vagueness argument. The Appellants pursue their vagueness,
overbreadth, takings, and free speech and expression claims
on appeal.
II
The Ordinance’s two-foot rule applies exclusively to “adult
cabaret dancers.” The Ordinance defines an “adult cabaret
dancer” as:
any person who is an employee or independent con-
tractor of an “adult cabaret” or “adult business” and
who, with or without any compensation or other
form of consideration, performs as a sexually-
oriented dancer, exotic dancer, stripper, go-go
dancer or similar dancer whose performance on a
regular and substantial basis focuses on or empha-
sizes the adult cabaret dancer’s breasts, genitals, and
or buttocks, but does not involve exposure of “speci-
fied anatomical areas” or depicting or engaging in
“specified sexual activities.” Adult cabaret dancer
does not include a patron.
3914 GAMMOH v. CITY OF LA HABRA
Ordinance, § 4. The district court rejected the Appellants’
assertion that this definition is vague and overbroad because
it contains subjective terms. We review the district court’s rul-
ing de novo. See United States v. Rodriguez, 360 F.3d 949,
953 (9th Cir. 2004); United States v. Linick, 195 F.3d 538,
541 (9th Cir. 1999).
A
[1] To survive a vagueness challenge, a regulation must
“define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and dis-
criminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,
357 (1983); see also United States v. Adams, 343 F.3d 1024,
1035 (9th Cir. 2003), cert. denied, 123 S. Ct. 2871 (2004). A
greater degree of specificity and clarity is required when First
Amendment rights are at stake. Kev, Inc. v. Kitsap County,
793 F.2d 1053, 1057 (9th Cir. 1986).
The Appellants argue that the subjective language used to
define an “adult cabaret dancer” makes the definition, and
thus the Ordinance, unconstitutionally vague. Cf. City of Chi-
cago v. Morales, 527 U.S. 41, 56-64 (1999) (holding a provi-
sion criminalizing loitering, which is defined as “to remain in
any one place with no apparent purpose,” void for vagueness
because the provision was “inherently subjective because its
application depends on whether some purpose is ‘apparent’ to
the officer on the scene”); Tucson Women’s Clinic v. Eden,
379 F.3d 531, 554-55 (9th Cir. 2004) (holding a statute
requiring physicians to treat patients “with consideration,
respect, and full recognition of the patient’s dignity and indi-
viduality” void for vagueness because it “subjected physicians
to sanctions based not on their own objective behavior, but on
the subjective viewpoint of others”) (internal quotation and
citation omitted); Free Speech Coalition v. Reno, 198 F.3d
1083, 1095 (9th Cir. 1999), aff’d sub nom. Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002) (holding a provision
GAMMOH v. CITY OF LA HABRA 3915
that criminalized sexually explicit images that “appear[ ] to be
a minor” or “convey the impression” that a minor is depicted
unconstitutionally vague because it was unclear “whose per-
spective defines the appearance of a minor, or whose impres-
sion that a minor is involved leads to criminal prosecution”).
Several of the terms within the Ordinance’s definition of
“adult cabaret dancer” — “sexually oriented dancer,” “exotic
dancer,” “similar dancer,” “regular basis,” and “focuses on or
emphasizes” — are unarguably subjective. However, two
main factors distinguish the Ordinance from cases such as
Morales, Tucson Women’s Clinic, and Free Speech Coalition,
where the regulations were held to be too subjective to give
notice to ordinary people or guidance to law enforcement: 1)
the subjective terms in the Ordinance are used in combination
with other terms, and 2) the subjective terms do not define
prohibited conduct.
[2] This circuit has previously recognized that otherwise
imprecise terms may avoid vagueness problems when used in
combination with terms that provide sufficient clarity. See
Kev, 793 F.2d at 1057 (holding that an ordinance prohibiting
dancers from “caressing” and “fondling” patrons was not
vague “in the context of the other definitions provided in the
ordinance” at issue). In this case, the district court recognized
that the two-foot rule applies only to “adult cabaret dancers”
who meet the following five qualifications: 1) the individual
must perform at an “adult cabaret”;2 2) the performer must
2
The City of La Habra Code defines “adult cabaret” as:
a nightclub, bar or other establishment (whether or not serving
alcoholic beverages) which features live performances by topless
and/or bottomless dancers, go-go dancers, exotic dancers, strip-
pers, or similar entertainers, and where such performances are
distinguished or characterized by their emphasis on matter depict-
ing, describing or relating to “specified sexual activities” or
“specified anatomical areas.”
City of La Habra Code §18.60.010.
3916 GAMMOH v. CITY OF LA HABRA
perform as a sexually-oriented dancer, exotic dancer, stripper,
or similar dancer; 3) the performance must focus on or
emphasize the performer’s breasts, genitals, and/or buttocks;
4) the performance must have this focus or emphasis on a reg-
ular basis; and 5) the performance must have this focus or
emphasis on a substantial basis. Thus, an “adult cabaret danc-
er” is defined by a combination of features, not by any one
subjective term. The combined terms outline the performer,
the place of the performance, and the type of performance.
Each of the five limitations provides context in which the
other limitations may be clearly understood. The definition as
a whole gives notice to performers and ample guidance to law
enforcement officers as to who is and who is not an “adult
cabaret dancer.”
Furthermore, although the definition of an “adult cabaret
dancer” contains subjective terms, the prohibited conduct is
defined objectively. It is not illegal to be an adult cabaret
dancer; only to be an adult cabaret dancer performing within
two feet of a patron. This distinction introduces additional
objectivity into the Ordinance because the act that is prohib-
ited — being within two feet of a patron — is certainly not
vague.3
[3] Vagueness doctrine cannot be understood in a manner
that prohibits governments from addressing problems that are
difficult to define in objective terms. See Grayned v. City of
Rockford, 408 U.S. 104, 110 (1972) (“we can never expect
mathematical certainty from our language”). In this case, a
combination of subjective and objective terms is used to give
a clear picture of an “adult cabaret dancer” and the conduct
3
The appellant dancers argue that they will not relinquish their proxim-
ity to patrons, and thus need to know how not to be “adult cabaret danc-
ers.” In other words, they assert that they need to know how to continue
their sexually expressive performances within two feet of their patrons.
This, however, is exactly what the Ordinance prohibits. The fact that the
regulation will necessarily alter the dancers’ conduct does not make it
vague.
GAMMOH v. CITY OF LA HABRA 3917
prohibited of such a dancer is defined objectively. Thus, the
definition of “adult cabaret dancer” is sufficiently clear to
give notice to performers and guidance to law enforcement.
See Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141,
1150 (9th Cir. 2001) (“perfect clarity is not required even
when a law regulates protected speech”).
B
[4] The Appellants claim that the definition of “adult caba-
ret dancer” is overbroad because it could apply to mainstream
or avant-garde performances as well as adult entertainment.
The Supreme Court and this circuit have emphasized that
“where a statute regulates expressive conduct, the scope of the
statute does not render it unconstitutional unless its over-
breadth is not only real, but substantial as well, judged in rela-
tion to the statute’s plainly legitimate sweep.” World Wide
Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186,
1198 (9th Cir. 2004) (quoting Osborne v. Ohio, 495 U.S. 103,
112 (1990) (internal quotations omitted)). In this case, poten-
tially overbroad applications of the Ordinance are minimal
because performances occurring outside of an adult cabaret
are unaffected by the Ordinance, and those occurring in an
adult cabaret and containing the sexual emphasis that defines
an “adult cabaret dancer” are within the Ordinance’s legiti-
mate sweep.
The Appellants were unable to cite any example of a per-
formance that would fall within the Ordinance to which appli-
cation of the Ordinance’s restrictions would be overbroad.
The examples proffered — including a duet, a tango, and an
Elvis impersonator — are unpersuasive. A pas de deux, a ball-
room dance, and an impersonation of the King each escapes
the two-foot limitation unless performed in an establishment
which features live performances by “topless and/or bottom-
less dancers, go-go dancers, exotic dancers, strippers or simi-
lar entertainers” characterized by an emphasis on “ ‘specified
sexual activities’ or ‘specified anatomical areas.’ ” See supra
3918 GAMMOH v. CITY OF LA HABRA
note 2 (quoting City of La Habra Code § 18.60.010(C)). How-
ever, if they occur within an adult cabaret and the performer
meets all five prongs of the definition of “adult cabaret danc-
er,” these performances fall within the statute’s legitimate
sweep.
[5] Regardless of whether the dance is a tango or more typ-
ical adult entertainment, requiring a two-foot separation
between dance partners in this highly-charged sexual atmo-
sphere may reasonably advance the City’s legitimate goal of
reducing secondary effects of adult entertainment. The two-
foot rule may, for example, provide a line of sight for enforce-
ment of the “no touch” rule and prevent exchanges of money
and drugs. When performed in an adult cabaret, these perfor-
mances, even if done in an Elvis costume, are thus within the
statute’s legitimate reach.
[6] Even if the Appellants were able to identify perfor-
mances that fulfill all aspects of an “adult cabaret dancer” but
are not tied to the secondary effects the statute is designed to
address, “the mere fact that one can conceive of some imper-
missible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge.” Members of City
Council of City of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 800 (1984). Although we recognize that “the First
Amendment needs breathing space,” World Wide Video, 368
F.3d at 1198, in this situation there is no “realistic danger that
the statute itself will significantly compromise recognized
First Amendment protections of parties not before the Court.”
Taxpayers for Vincent, 466 U.S. at 801. If an overbroad appli-
cation of the Ordinance exists, it is insubstantial when
“judged in relation to the statute’s plainly legitimate sweep.”
See Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973).
III
The district court dismissed the Appellants’ regulatory tak-
ings claim on summary judgment. We review this decision de
GAMMOH v. CITY OF LA HABRA 3919
novo. Cal. First Amend. Coalition v. Calderon, 150 F.3d 976,
980 (9th Cir. 1998). We “must determine, viewing the evi-
dence in the light most favorable to the non-moving party,
whether there are any genuine issues of material fact and
whether the district court correctly applied the substantive
law.” Id.
[7] The takings clause of the Fifth Amendment protects pri-
vate property from being taken for public use without just
compensation. U.S. CONST. amend. V (emphasis added). “In
order to state a claim under the Takings Clause, a plaintiff
must first demonstrate that he possesses a ‘property interest’
that is constitutionally protected.” Schneider v. Cal. Dep’t
Corr., 151 F.3d 1194, 1198 (9th Cir. 1998) (internal citation
omitted). The Appellants have not here pointed to a “property
interest” interfered with by the City of La Habra’s regulation
of the dancers’ conduct.4 The district court thus properly dis-
missed the Appellants’ takings claim.
IV
The Appellants argue that the Ordinance violates the First
Amendment’s guarantees of freedom of speech and expres-
sion. The district court evaluated the Ordinance under inter-
mediate scrutiny and determined that the Appellants’ First
Amendment rights had not been violated. We review the dis-
trict court’s decision to grant summary judgment de novo,
viewing the evidence in the light most favorable to the Appel-
lants and looking for genuine issues of material fact. See Cal-
deron, 150 F.3d at 980.
4
Certainly Mr. Gammoh and the dancers may suffer economic losses if
patrons are unwilling to pay for dances that must be at least two feet away
from customers. Their claim of right to this stream of income was essen-
tially the basis of the vested rights argument that the Appellants made
before the district court. The district court rejected this argument on sum-
mary judgment, and Appellants did not appeal that ruling.
3920 GAMMOH v. CITY OF LA HABRA
A
First, we must determine whether the Ordinance is a com-
plete ban on protected expression. See Ctr. for Fair Pub. Pol-
icy v. Maricopa County, 336 F.3d 1153, 1164 (9th Cir. 2003)
(plurality opinion) (citing City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425, 434 (2002), and Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 46 (1986)). We conclude that it
is not.
[8] The two-foot rule merely requires that dancers give
their performances from a slight distance; it does not prohibit
them from giving their performances altogether. The rule lim-
its the dancers’ freedom to convey their erotic message but
does not prohibit them from performing erotic one-on-one-
dances for patrons. See Renton, 475 U.S. at 46. Because the
dancers’ performances may continue, albeit from a slight dis-
tance, this case stands in sharp contrast to our recent decision
in Dream Palace v. County of Maricopa, where we applied
strict scrutiny to an ordinance regulating adult businesses
because even the county conceded that the ordinance was a
complete ban on nude and semi-nude dancing. 384 F.3d 990,
1018 (9th Cir. 2004). Here, the Ordinance prescribes where
offstage dancing can occur (at least two feet away from
patrons) but it does not ban any form of dance.
The Appellants argue that close propinquity to patrons is a
key element of the dancers’ expressive activity, and that the
Ordinance is therefore a complete ban on a form of expres-
sion: “proximate dancing.” This argument has been made and
rejected in this circuit. See Colacurcio v. City of Kent, 163
F.3d 545, 549, 555 (9th Cir. 1998) (rejecting the argument
that because “table dancing” is a unique form of dancing
requiring proximity, a ten-foot separation requirement is a
complete ban on this form of expression). It is true that if the
dancers’ expressive activity is considered “erotic dance within
two feet of patrons” and not merely “erotic dance,” this activ-
ity is completely banned. However, virtually no ordinance
GAMMOH v. CITY OF LA HABRA 3921
would survive this analysis: the “expression” at issue could
always be defined to include the contested restriction. See id.
at 556 (rejecting the idea that the applicable “forum” for a
table dance is the area within ten feet of the performer). Pro-
tected expression is not so narrowly defined. See Dream Pal-
ace, 384 F.3d at 1019-20 (recognizing that the regulations in
Renton and its progeny did not “proscribe absolutely certain
types of adult entertainment” and instead enacted regulations
that “avoid[ed] a total ban on protected expression”).
[9] “While the dancer’s erotic message may be slightly less
effective from [two] feet, the ability to engage in the protected
expression is not significantly impaired.” Kev, 793 F.2d at
1061. We hold that the Ordinance is not a complete ban on
a protected form of expression.
B
Next, we must determine what level of scrutiny properly
applies. See Ctr. for Fair Pub. Policy, 336 F.3d at 1164. Tra-
ditionally, the Court has utilized a distinction between
content-based and content-neutral regulations to determine the
appropriate level of scrutiny. See e.g., Renton, 475 U.S. at 46-
47. Time, place, and manner restrictions on adult businesses
were considered content-neutral. Id. at 48.
Recently, however, the Supreme Court has recognized that
virtually all regulation of adult businesses is content-based.
See Alameda Books, 535 U.S. at 448 (Kennedy, J., concur-
ring); see also Ctr. for Fair Pub. Policy, 336 F.3d at 1161
(recognizing Justice Kennedy’s opinion in Alameda Books as
controlling because it is the narrowest opinion joining the plu-
rality’s judgment). Content-based regulations are normally
subject to strict scrutiny. See Simon & Schuster, Inc. v. Mem-
bers of N.Y. State Crime Victims Bd., 502 U.S. 105, 118
(1991) (describing the “necessary to serve a compelling state
interest” strict scrutiny test).
3922 GAMMOH v. CITY OF LA HABRA
However, designating regulation of adult establishments as
content-based does not end the inquiry as to the appropriate
standard of review. Content-based regulations may be ana-
lyzed under intermediate scrutiny if two conditions are met:
1) the ordinance regulates speech that is sexual or porno-
graphic in nature; and 2) the primary motivation behind the
regulation is to prevent secondary effects. Ctr. for Fair Pub.
Policy, 336 F.3d at 1164-65 (citing Alameda Books, 535 U.S.
at 434, 448).
1
The Appellants differ from plaintiffs in previous cases
regarding the regulation of adult businesses in that they wear
minimal clothing for their offstage performances (although
they perform nude on stage). The Appellants argue that the
dancers’ expressive activity is not sexual or pornographic
because the dancers are “fully clothed.” However, the appel-
lant dancers testified that their outfits for offstage dancing
include bikinis and g-strings, sometimes paired with a sheer
skirt or top; at the very least, these accouterments stretch the
term “fully-clothed.” The dancers do cover their breasts and
genitalia, but their argument that this removes their perfor-
mances from the sphere of “sexual speech” ignores the con-
text in which their offstage performances occur — in an adult
cabaret, minutes after the dancers have performed nude on
stage. See Kev, 793 F.2d at 1061 n.12 (noting that “consider-
ation of a forum’s special attributes is relevant to the constitu-
tionality of a regulation since the significance of the
governmental interest must be assessed in light of the charac-
teristic nature and function of the particular forum involved”)
(quoting Heffron v. Int’l Soc’y for Krishna Consciousness,
452 U.S. 640, 650-51 (1981)).
There is certainly a point along the continuum where sug-
gestive speech no longer falls within the “sexual or porno-
graphic” exception to the requirement of strict scrutiny. We
are mindful that this case pushes us closer to that point than
GAMMOH v. CITY OF LA HABRA 3923
those cases where performers are nude or topless. “Sexual
speech” has never been explicitly defined, but the appellant
dancers’ performances, which “focus[ ] on or emphasize[ ]
. . . breasts, genitals, and or buttocks,” occur in adult estab-
lishments, are conducted by dancers who also perform nude,
and involve minimal clothing, are certainly within the limits
of “sexual speech.” We therefore review the Ordinance as a
regulation of “sexual or pornographic speech” and proceed to
consider whether reducing the secondary effects of adult
establishments is the Ordinance’s primary purpose.
2
[10] We generally accept that a regulation’s purpose is to
combat secondary effects if the enactment can be justified
without reference to speech. See Colacurcio, 163 F.3d at 551-
52 (citing Kev, 793 F.2d at 1058-59). We have recognized
that “so long as the regulation is designed to combat the sec-
ondary effects of [adult] establishments on the surrounding
community, namely [ ] crime rates, property values, and the
quality of the city’s neighborhoods . . . then it is subject to
intermediate scrutiny.” Ctr. for Fair Pub. Policy, 336 F.3d at
1164-65 (internal citation and quotation omitted); see also
Colacurcio, 163 F.3d at 551 (9th Cir. 1998) (noting that an
ordinance is subject to intermediate scrutiny if its “predomi-
nant purpose” is combating secondary effects). For plaintiffs,
this is “a difficult standard to overcome.” Colacurcio, 163
F.3d at 552.
To determine the purpose of the Ordinance, we look to “ob-
jective indicators of intent.” Id. at 552; see also Ctr. for Fair
Pub. Policy, 336 F.3d at 1165. In this case we have the mate-
rials that the City Council considered in determining whether
to enact the Ordinance and the Ordinance itself. These indica-
tors demonstrate that secondary effects were the City Coun-
cil’s concern.
[11] The record indicates that the City Council was pres-
ented with several volumes of materials prior to enacting the
3924 GAMMOH v. CITY OF LA HABRA
Ordinance. These included studies of secondary effects, dec-
larations from police officers, reports on sexually transmitted
diseases, and various other evidence. In a report to the City
Council, the City Attorney recommended action to address
the secondary effects reported in these resources: “[i]n
reviewing the City’s existing regulations and in light of the
extensive existing case law and supporting studies, we con-
clude that this Ordinance is necessary to reduce and/or pre-
clude these secondary effects.” Our review of the materials
that the City Council considered indicates that concern about
secondary effects, as opposed to the content of the dancers’
expression, motivated the challenged Ordinance.
[12] The Ordinance itself also demonstrates that the City
Council’s purpose was to combat secondary effects. The
Ordinance states that it is:
necessary for the protection of the welfare of the
people, as a result of the potential negative second-
ary effects of adult businesses, including crime, the
protection of the city’s retail trade, the prevention of
blight in neighborhoods and the maintenance of
property values, protecting and preserving the qual-
ity of the city’s neighborhoods and the city’s com-
mercial districts, the protection of the city’s quality
of life, the increased threat of the spread of sexually
transmitted diseases, and the protection of the peace,
welfare and privacy of persons who patronize adult
businesses.
Ordinance, §1(A). This statement of purpose is supported by
regulatory provisions that are logically linked to the second-
ary effects, such as solicitation of prostitution and drug trans-
actions, that the City identified: the Ordinance forbids contact
between patrons and performers and, to make this rule
enforceable, requires a two-foot separation between patrons
and performers. Both the two-foot rule and the no-touching
GAMMOH v. CITY OF LA HABRA 3925
rule are reasonably linked to the secondary effects that the
City identifies as its purpose in enacting the Ordinance.
We are not persuaded by the Appellants’ argument that a
speech-reducing motive is demonstrated by the fact that prox-
imity between patrons and dancers is allowed when the danc-
ers are not performing. The City may reasonably have decided
that such regulations were impractical or unnecessary. The
Appellants presented no evidence to support their speculation
that the City chose only to regulate dancers when they are
performing because it wished to regulate the performances’
expressive content.
We are also unpersuaded by the Appellants’ argument that
a speech-reducing motive is demonstrated by a City employ-
ee’s testimony that he overheard someone in staff meetings
say that they wanted to drive appellant Gammoh out of busi-
ness. The Appellants presented no evidence that the person
who made these comments was on the City Council or
affected the Council’s decision to pass the Ordinance. Noth-
ing connects this testimony to the process by which the Ordi-
nance was passed. The testimony therefore does not create a
genuine issue of material fact as to whether the City’s stated
goal of preventing secondary effects of adult businesses was
its true purpose in enacting the Ordinance.
[13] The Appellants have not raised a genuine issue as to
the City’s motivation in enacting the Ordinance. As Justice
Kennedy wrote in Alameda Books, “[t]he ordinance may be
a covert attack on speech, but we should not presume it to be
so.” 535 U.S. at 447. The objective indicators of the City’s
intent demonstrate a desire to combat secondary effects, and
the Appellants have adduced no evidence that draws this
motivation into question. The Ordinance must therefore be
evaluated using intermediate scrutiny.
C
[14] A statute will survive intermediate scrutiny if it: 1) is
designed to serve a substantial government interest; 2) is nar-
3926 GAMMOH v. CITY OF LA HABRA
rowly tailored to serve that interest; and 3) does not unreason-
ably limit alternative avenues of communication. Ctr. for Fair
Pub. Policy, 336 F.3d at 1166; see also Renton, 475 U.S. at
50.
1
[15] Reducing the negative secondary effects of adult busi-
nesses is a substantial governmental interest. See Ctr. for Fair
Pub. Policy, 336 F.3d at 1166 (“It is beyond peradventure at
this point in the development of the doctrine that a state’s
interest in curbing the secondary effects associated with adult
entertainment establishments is substantial.”). The Appellants
concede that preventing secondary effects is a substantial gov-
ernment interest, but argue that the City’s evidence of second-
ary effects is flawed and inapplicable. We disagree.
[16] The pre-enactment record in this case is substantial.
Cf. id. at 1167-68 (describing the record as “a slim one” and
“hardly overwhelming” but concluding that the studies and
public hearings relied on by the legislature were sufficient to
demonstrate a connection between the regulated activity and
secondary effects). The City Council was presented with,
inter alia, seventeen studies on secondary effects of adult
businesses, a summary of some of these studies, the 1986
Attorney General’s Report on Pornography, declarations from
investigating vice officers, an interview with nude dancers, a
presentation on the harmful effects of pornography in nearby
Los Angeles, numerous reports on AIDS and other sexually
transmitted diseases, and thirty-nine judicial decisions in the
area of regulation of adult businesses. These studies and
reports meet the City’s burden to produce evidence demon-
strating a connection between its regulations and the second-
ary effects that the Ordinance is intended to address. See
Alameda Books, 535 U.S. at 441; Ctr. for Fair Pub. Policy,
336 F.3d at 1166.
Because the City has met this burden, “[i]f plaintiffs fail to
cast direct doubt on this rationale, either by demonstrating
GAMMOH v. CITY OF LA HABRA 3927
that the municipality’s evidence does not support its rationale
or by furnishing evidence that disputes the municipality’s fac-
tual findings, the municipality meets the standard set forth in
Renton.” Alameda Books, 535 U.S. at 438-39, cited in Ctr. for
Fair Pub. Policy, 336 F.3d at 1160. The Appellants attempt
to cast doubt by arguing that the studies on which the City
relies are flawed and irrelevant.
The Appellants’ proffered expert declared that the City’s
evidence was flawed because “systematically collecting
police call-for-service information” and adhering to the
Appellants’ suggested methodological standards were “the
only reliable information” that could have supported the
City’s concern. This is simply not the law. “[S]o long as
whatever evidence the city relies upon is reasonably believed
to be relevant to the problem that the city addresses[,]” it is
sufficient to support the Ordinance. Renton, 475 U.S. at 51-52.5
While we do not permit legislative bodies to rely on shoddy
data, we also will not specify the methodological standards to
which their evidence must conform. See id. at 51; see also
Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring)
(“As a general matter, courts should not be in the business of
second-guessing fact-bound empirical assessments of city
planners.”). The Appellants have failed to create a genuine
issue of material fact as to the reliability of the collection of
evidence upon which the City relied.
5
The Seventh Circuit has succinctly explained why clear proof of sec-
ondary effects is not required:
A requirement of Daubert-quality evidence would impose an
unreasonable burden on the legislative process, and further would
be logical only if Alameda Books required a regulating body to
prove that its regulation would — undeniably — reduce adverse
secondary effects. Alameda Books clearly did not impose such a
requirement.
G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d 631, 640 (7th Cir.
2003).
3928 GAMMOH v. CITY OF LA HABRA
The Appellants also argue that even if the City’s evidence
is reliable, it is irrelevant because it does not measure the sec-
ondary effects of clothed performances. No precedent requires
the City to obtain research targeting the exact activity that it
wishes to regulate: the City is only required to rely on evi-
dence “reasonably believed to be relevant” to the problem
being addressed. Alameda Books, 535 U.S. at 438. The studies
upon which the City relied evaluate the secondary effects of
a variety of adult businesses — a category encompassing any
business that would be affected by the Ordinance — and are
therefore unquestionably relevant.
The presence or absence of minimal clothing is not relevant
to whether separation requirements fulfill the stated purpose
of the Ordinance. This circuit recognizes that municipalities
may reasonably find that separation requirements serve the
interest of reducing the secondary effects of adult establish-
ments. “Buffers” between patrons and performers prevent the
exchange of money for prostitution or drug transactions and
allow enforcement of “no touching” provisions, which would
otherwise be virtually unenforceable. See Colacurcio, 163
F.3d at 554. There is no reason to believe that minimal cloth-
ing obviates the need for these measures when the atmosphere
is equally charged — money exchanges and touching are no
more difficult if the dancer is wearing minimal clothing than
if she is partially or fully nude.6
[17] The Appellants have not presented evidence sufficient
to create a genuine issue of material fact as to whether the
two-foot rule is designed to serve a substantial governmental
interest in preventing the secondary effects of adult establish-
ments. The Ordinance therefore survives the first prong of the
Renton test.
6
The City Council was presented with a report documenting an inter-
view with former adult dancers from another jurisdiction in which the
dancers indicated that solicitations for sexual favors occurred “whether the
club is nude or not” and that drugs were frequently passed during tipping.
GAMMOH v. CITY OF LA HABRA 3929
2
[18] Our next consideration is whether the City’s two-foot
rule is narrowly tailored to address the problem of secondary
effects from adult entertainment. See Ctr. for Fair Pub. Pol-
icy, 336 F.3d at 1166. The Ordinance’s two-foot separation
requirement is more narrow than other separation require-
ments that the Ninth Circuit has upheld. See Colacurcio, 163
F.3d at 553-54 (upholding a ten-foot separation requirement);
BSA, Inc. v. King County, 804 F.2d 1104, 1110-11 (9th Cir.
1986) (upholding a six-foot separation requirement); Kev, 793
F.2d at 1061-62 (upholding a ten-foot separation require-
ment). These earlier cases involved nude or topless dancing,
and therefore differ from the case before us. Nonetheless, they
guide us in now holding that in the context of a club that fea-
tures on-stage nude dancing and offstage minimally clothed
dancing, the City’s two-foot separation requirement is nar-
rowly tailored to prevent the exchange of money or drugs and
to allow enforcement of the “no touching” provisions.
3
[19] Finally, we consider whether the Ordinance leaves
open ample alternative avenues of communication. See Ctr.
for Fair Pub. Policy, 336 F.3d at 1166. This inquiry is analo-
gous to that in Section IV(A), supra, which concluded that the
Ordinance is not a complete ban on protected expression. The
challenged Ordinance leaves dancers free to convey their
erotic message as long as they are two feet away from
patrons. Although the message may be slightly impaired from
this distance, it cannot be said that a dancer’s performance
“no longer conveys eroticism” from two feet away. Dream
Palace, 384 F.3d at 1021 (internal citation and quotation
omitted). Because the dancer’s erotic message may still be
communicated from a slight distance, the Ordinance survives
this final prong of the Renton analysis.
[20] As detailed above, the Ordinance’s two-foot rule is
narrowly tailored to address the City’s concerns about the sec-
3930 GAMMOH v. CITY OF LA HABRA
ondary effects of adult establishments and leaves alternate
channels of communication open by allowing dancers to per-
form at a two-foot distance. The Ordinance survives interme-
diate scrutiny.
V
The Ordinance was thoroughly researched and narrowly
tailored to combat the negative side-effects of adult busi-
nesses that the City’s research identified. Regulating adult
businesses will always place the City’s concerns in tension
with First Amendment protections. In this case, however, the
City of La Habra designed an Ordinance that falls within what
has previously been accepted as constitutional in this circuit,
despite the minimal amount of clothing that the appellant
dancers wear when performing. The Ordinance is not vague
or overbroad, and the Appellants have raised no genuine issue
of material fact regarding their takings or First Amendment
claims. The judgment of the district court is therefore
AFFIRMED.