Daily Development for Tuesday, March 11, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ZONING AND PLANNING; USE RESTRICTIONS; ADULT BUSINESSES: Ordinance regulating licensing of adult bookstores was facially unconstitutional as prior restraint due to failure to provide prompt judicial review.

Baby Tam & Co. v. City of Las Vegas, 199 F3d 1111 (9th Cir 2000)

In Baby Tam & Co. v City of Las Vegas, 154 F3d 1097 (9th Cir 1998) (Baby Tam I), the city's licensing and zoning ordinance for operation of an adult bookstore was struck down by the Ninth Circuit as an unconstitutional prior restraint and suppression of speech because it did not provide for prompt judicial review. On remand, the district court issued an injunction enjoining enforcement of the ordinance.

To remedy the constitutional defects, the city amended various provisions of the municipal code and the State of Nevada made certain statutory amendments designed to provided that the applicant could seek judicial review of denial of a license through a mandamus action, and that if there were no judicial determination within thirty days, the director of zoning would be required to issue a conditional license. Further, it persuaded the local court to amend its rules to provide such review within thirty days when the action was designated a "free speech" appeal and adopted other procedural mechanisms to insure prompt judicial review.

As a result of these amendments, the district court found that the ordinance's deficiencies had been remedied, and dissolved the permanent injunction

The Ninth Circuit reversed. This time, the court acknowledged that the issue concerning judicial review, which was the primary issue justifying the first remand, had been resolved, but held that, nevertheless, other issues concerning the applicant's free speech rights also had been raised in the original challenge to the ordinance, and that these had not been addressed by the City.

holding that the provision allowing the Director to deny or issue a license "within thirty days" from receipt of a complete application and compliance with the requirements of the ordinance was unconstitutional. The court considered this provision analogous to the ordinance in FW/PBS, Inc. v City of Dallas, 493 US 215, 107 L Ed 2d 603, 110 S Ct 596 (1990) , which required an inspection of the business premises within 30days before approval of a license. Because no time limits were established within which the inspections had to be performed, the ordinance in FW/PBS thereby allowed for an indefinite postponement for issuance of a license, and was thus unconstitutional. "A scheme that fails to set reasonable time limits on the decision maker creates the risk of indefinitely suppressing permissible speech." 493 US at 227, 107 L Ed 2d at 619.

Accordingly, the Ninth Circuit struck down the ordinance in Baby Tam because no time limits were set for ensuring an applicant's compliance with all of its requirements, thus allowing the Director to postpone indefinitely issuing a license. The case was remanded to the district court to enjoin the city from denying a license to Baby Tam until all constitutional defects on the face of the business and zoning license scheme for adult bookstores were remedied.

Baby Tam & Co. v. City of Las Vegas, 199 F3d 1111 (9th Cir 2000)

As a result of these amendments, the district court found that the ordinance's deficiencies had been remedied, and dissolved the permanent injunction

The court held that the provision requiring the Director to deny or issue a license "within thirty days" from receipt of a complete application and compliance with the requirements of certain sections of the city code was unconstitutional. The court considered this provision analogous to the ordinance in FW/PBS, Inc. v City of Dallas, 493 US 215, 107 L Ed 2d 603, 110 S Ct 596 (1990) , which required an inspection of the business premises within 30days before approval of a license. Because no time limits were established within which the inspections had to be performed, the ordinance in FW/PBS thereby allowed for an indefinite postponement for issuance of a license, and was thus unconstitutional. "A scheme that fails to set reasonable time limits on the decision maker creates the risk of indefinitely suppressing permissible speech." 493 US at 227, 107 L Ed 2d at 619.

Here, the requirement that there be compliance with various other requirements of the code before the Director was required to pass on the license application left unresolved the method by which satisfaction of these other requirements could be established. If an inspection is required, as the court clearly suspects, then the city, by manipulation of the inspection process may delay the time at which the thirty day decision period begins to run.

One of the judges in the three judge panel dissented, pointing out that the city conceded that the ordinance should be read to provide that if the director, upon receipt of an application, the director must proceed to make a decision within thirty days, and cannot defer for the completion of planned inspections. Consequently, the denial of a license can be promptly appealed.

Comment 1: Note that the licensing requirements at issue here, unlike the specialized judicial review procedures, are general in character, not particular to licenses having free speech ramifications. Is the city really accurate in saying that it intends to complete all necessary inspections and evaluations of all pending licensees within thirty days of first contact? If not, then what is the standard?

Comment 2: The world over, local licensing and inspections requirements have been used as tools by those in power against political enemies, against dissidents, or merely for purposes of extortion or "social control." It is appropriate that local ordinances be subject to special review when free speech concerns are at stake.

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