Nightclubs Inc v. Cty Paducah

RECOMMENDED FOR FULL-TEXT PUBLICATION

24 Nightclubs, Inc. v. City No. 98-6581 Pursuant to Sixth Circuit Rule 206

of Paducah, et al. ELECTRONIC CITATION: 2000 FED App. 0041P (6th Cir.)

File Name: 00a0041p.06

plaintiff does not even allege that in the case at hand the

avenues for prompt judicial review were somehow UNITED STATES COURT OF APPEALS

inadequate. Access to the federal courts in this case was

immediate, and a decision was rendered promptly (the FOR THE SIXTH CIRCUIT

ordinance was enacted on August 11, 1998, and after a _________________

hearing on October 1, 1998, the District Court for the Western

District of Kentucky entered a final order granting in part and

;

denying in part plaintiff’s motion for a preliminary injunction



on October 29, 1998). In addition, the spirit of the Freedman NIGHTCLUBS, INC.,



test, that undue suppression of constitutionally protected Plaintiff-Appellant,



speech be avoided, is satisfied on these facts because, as the



District Court pointed out in this case, the plaintiff may be No. 98-6581

v.



granted a temporary restraining order or injunction under the >



Kentucky procedural rules after it initiates the judicial action.

CITY OF PADUCAH, et al.,

Defendants-Appellees. 

For these reasons, I believe that we should not invalidate on

1

its face the section of the City of Paducah ordinance which

explicitly states that it allows prompt judicial review in any

court of competent jurisdiction for its failure to provide

prompt judicial review.

Appeal from the United States District Court

for the Western District of Kentucky at Paducah.

No. 98-00241—Thomas B. Russell, District Judge.

Argued: September 22, 1999

Decided and Filed: February 2, 2000

Before: MERRITT and CLAY, Circuit Judges;

ALDRICH,* District Judge.

*

The Honorable Ann Aldrich, United States District Judge for the

Northern District of Ohio, sitting by designation.

1

2 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 23

of Paducah, et al. of Paducah, et al.

_________________ must examine the swiftness of a state court’s procedures,

regardless of the language in the ordinance itself, before

COUNSEL deciding whether a prompt judicial determination on the

merits of the action could potentially be reached. I do not

ARGUED: Charlotte B. Scott, BRADLEY, BRYANT & believe that to be the intention of the Court in FW/PBS.

KAUTZ, Paducah, Kentucky, for Appellant. David L. Kelly,

DENTON & KEULER, Paducah, Kentucky, for Appellees. The broad language of FW/PBS holds only that “the

ON BRIEF: Charlotte B. Scott, William E. Scent, possibility of prompt judicial review” or “an avenue for

BRADLEY, BRYANT & KAUTZ, Paducah, Kentucky, for prompt judicial review” is required. See FW/PBS, 493 U.S.

Appellant. David L. Kelly, DENTON & KEULER, Paducah, at 228-29. While some language in Justice Brennan’s

Kentucky, for Appellees. concurring opinion indicating that a “prompt judicial

determination” might be required has caused discussion

ALDRICH, D. J., delivered the opinion of the court, in among the Circuit courts, several Circuits have agreed that

which CLAY, J., joined. MERRITT, J. (pp. 19-24), delivered “prompt judicial review” only means access to prompt

a separate dissenting opinion. judicial review. See, e.g., Boss Capital, Inc. v. City of

Casselberry, 187 F.3d 1251 (11th Cir. 1999); TK’s Video, Inc.

_________________ v. Denton County, 24 F.3d 705 (5th Cir. 1994); Graff v. City

of Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc); Jews for

OPINION Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319 (1st

_________________ Cir. 1993). In addition, the Second Circuit has intimated that

ALDRICH, District Judge. Plaintiff-Appellant Nightclubs, it would follow this line of reasoning. See, Beal v. Stern, 184

Inc. (“Nightclubs”) brought this action against the City of F.3d 117 (2d Cir. 1999) (noting, without deciding, that

Paducah, Kentucky; the City Commission of the City of prompt access to judicial review in state courts would satisfy

Paducah, Kentucky; Albert Jones, in his official capacity as the Freedman test). I do not believe the Court intended for a

the Mayor of Paducah, Kentucky; and James Zumwalt, in his prompt judicial determination to be required in a situation

official capacity as the City Manager of Paducah, Kentucky where the city has provided for the broadest type of judicial

(collectively “the City” or “Paducah”). Pursuant to 42 U.S.C. review within its powers. To find otherwise is to invalidate

§ 1983, Nightclubs challenges the constitutionality of a broadly-worded city ordinances on the basis of the swiftness

Paducah ordinance that provides for the licensing and or slowness of that particular state’s judicial procedures, a test

regulation of sexually oriented businesses and their that could force Circuits to come to seemingly arbitrary and

employees. The District Court denied Nightclubs’ motion for inconsistent decisions based on the various procedures of the

a preliminary injunction in substantial part. Nightclubs different state court systems within their reach. For these

appeals that denial, arguing that the ordinance’s licensing reasons, I do not believe FW/PBS requires the result the Court

scheme amounts to an unlawful prior restraint in violation of reaches here.

the First and Fourteenth Amendments to the United States Even if a prompt judicial determination is required, the

Constitution. This Court has jurisdiction pursuant to 28 plaintiff in this case does not meet the burden of proving that

U.S.C. § 1291 and § 1292(a)(1). Because the District Court it could not gain such a prompt judicial determination in some

erred in not enjoining the licensing scheme, we REVERSE, court of competent jurisdiction over the matter. In fact, the

VACATE, and REMAND.

22 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 3

of Paducah, et al. of Paducah, et al.

meaning of § 11-7(a), nor given it a sensible meaning that I.

would uphold its validity.

Nightclubs, Inc., doing business as “Regina’s House of

* * * Dolls,” is a Kentucky corporation that owns and operates an

adult entertainment business featuring performances by

The Court’s opinion also erroneously concludes that the female dancers. The business has been operating

City of Paducah ordinance fails to provide for “prompt continuously in Paducah, Kentucky since 1987. On August

judicial review” as required by FW/PBS, Inc. v. City of Dallas 11, 1998, the City of Paducah enacted Ordinance No. 98-8-

and our own Sixth Circuit precedent. 5925 (“the ordinance”), which is designed to regulate sexually

oriented businesses. Regina’s House of Dolls qualifies as an

Nightclubs, Inc. bears the burden of proving to the court “adult cabaret” under § 11-2(3) of the ordinance.1

that the ordinance does not provide an avenue for prompt

judicial review. See FW/PBS, 493 U.S. at 229-30 (explicitly In addition to regulating the substantive operation of

declining to shift the burden of proof to the government in sexually oriented businesses, the ordinance requires such

licensing scheme cases). The plaintiff has failed to meet that businesses to obtain licenses from the City prior to operation.

burden. Specifically, the plaintiff has failed to address the See Ord. § 11-6(a). The ordinance also requires individuals

fact that this ordinance provides for prompt judicial review in who work as managers and entertainers in sexually oriented

any court of competent jurisdiction, including federal courts. businesses to obtain employee licenses from the City. See id.

The Court argues that the Kentucky procedures at issue Section 11-6 delineates the licensing application procedures.

provide for even more potential delay than do the Tennessee See Ord. §§ 11-6(b)-(g). An applicant for a sexually oriented

procedures this court found to require undue delay in East business license must submit various pieces of information to

Brook Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. the City, including a complete set of fingerprints “on forms as

1995). But the ordinance in that case, unlike the ordinance prescribed by the Chief of Police,” his or her social security

before us today, provided for appeal from an adverse decision number and/or tax identification number, and a description of

by common law writ of certiorari to the state courts of “the nature of the activity or activities to be engaged in at the

Tennessee. See id. at 225. Where judicial review is limited establishment.” Ord. § 11-6(e). The applicant must also

in that manner, certainly a facial challenge that the limiting disclose certain details regarding any crime(s) that he or she

language precludes “prompt judicial review” has more of a has been convicted of “relating to prostitution, solicitation, or

chance of success. But how can an ordinance which allows sexual offenses” within the three years prior to the date of the

judicial review “in any court of competent jurisdiction,” and application. Ord. § 11-6(e)(3). Section 11-6(e)(11) states that

further urges that the matter be “promptly reviewed” by the

courts be declared to be facially invalid for not providing an

avenue for prompt judicial review? Certainly East Brooks 1

Books is distinguishable on that basis. The ordinance defines “adult cabaret” as “a night club, bar,

restaurant, or similar commercial establishment which regularly features:

The Court relies on FW/PBS for the proposition that (a) Persons who appear in a state of nudity or semi-nude; or (b) Live

“prompt judicial review” requires more than access, without performance [sic] which are characterized by the exposure of ‘specified

anatomical areas’ or by ‘specified sexual activities’; or (c) Films, motion

interference, to the judicial system. Instead, the Court pictures, video cassettes, slides or other photographic reproductions which

essentially argues that in each case before it a federal court are characterized by the depiction or description of ‘specified sexual

activities’ or ‘specified anatomical areas’.” See Ord. § 11-2(3).

4 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 21

of Paducah, et al. of Paducah, et al.

the applicant must already possess a current “City business the face of the ordinance was “more than remedied by the

license,” and that “the premises must be inspected and found city’s narrowing construction.” Id.

to be in compliance with health, fire, zoning, plumbing and

building codes of the City.” Ord. § 11-6(e)(11). Rock Against Racism is not the only example of the federal

courts’ reluctance to strike an ordinance, even on a First

Section 11-7(a) provides as follows: Amendment facial challenge, unless absolutely necessary.

When the Supreme Court first announced its intention to

Upon receipt of an application properly filed with the allow First Amendment facial challenges, it tempered that

Director and upon payment of the non-refundable decision by noting that “we believe that the overbreadth of a

application fee, the Director or his/her designee shall statute must not only be real, but substantial as well, judged

immediately stamp the application as received and shall in relation to the statute’s plainly legitimate sweep.”

immediately thereafter initiate an investigation of the Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). This

application and the proposed sexually oriented business language in Broadrick was quoted by the Court when it held

by all appropriate City departments and agencies. The that “there must be a realistic danger that the statute itself will

City shall approve or deny the issuance of a license to an significantly compromise recognized First Amendment

applicant within ten (10) business days after receipt of a protections of parties not before the Court for it to be facially

completed sexually oriented business application. challenged on overbreadth grounds.” City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)

Ord. § 11-7(a). Thus, once an applicant submits a (finding that an ordinance could not be challenged facially

“completed” business license application in accordance with when there was no proof that it would be applied any

§ 11-6, the City Manager must immediately instruct various2 differently to others than it had been applied to plaintiffs).

City departments to conduct the appropriate investigations. There is no realistic danger that this ordinance will

Section 11-7(a) further declares that the City “shall approve” compromise First Amendment rights of third parties when the

the issuance of a sexually oriented business license “unless” enforcing organization, the City of Paducah, has agreed to

the City determines that the application is deficient in one of interpret the statute in a way that comports with the First

eight specified ways. Id. That is, Paducah will deny a Amendment.

business license if the applicant is overdue on any payments

to the City, has failed to provide requisite information on the When we analyze the mandatory language of the ordinance

application, has failed to pay the license fee, or otherwise “has itself and take into account the City’s own interpretation of its

failed to comply with any provision or requirement of this duties under the ordinance, I agree with the District Court that

ordinance.” Id. A business license will also be denied if the there is no problem here with delay. Our Court has gone out

premises to be used for the sexually oriented business is not of its way to give the ordinance an unreasonable

in compliance with zoning requirements or with applicable interpretation. Instead of emasculating the ordinance in order

to hold it invalid, it is our responsibility to give the law a

“rational and sensible construction” that will uphold its

2

Although the ordinance continuously refers to “the Director” of the validity. American Tobacco Co. v. Patterson, 456 U.S. 63

City, the ordinance defines the Director as “the City Manager or his/her (1982). See SUTHERLAND, STATUTORY CONSTRUCTION

designee.” As the City Manager is a defendant in this action, the Court §§ 45.11—45.12 (5th ed. 1992). Our Court has not

will refer to this individual as “the City Manager” rather than “the interpreted the ordinance in accordance with the plain

Director.”

20 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 5

of Paducah, et al. of Paducah, et al.

Court noted in FW/PBS, “[a]lthough facial challenges to health, fire, building, and plumbing codes. Id. Licenses are

legislation are generally disfavored, they have been permitted to be renewed annually under these same procedures. See

in the First Amendment context where the licensing scheme Ord. §§ 11-10(a)-(b).

vests unbridled discretion in the decision maker and where the

regulation is challenged as overbroad.” FW/PBS, Inc. v. City Sections 11-15 and 11-17 govern appeals from the denial,

of Dallas, 493 U.S. 215, 223 (1990) (citing City Council of suspension, or revocation of licenses. Section 11-15 provides

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 and that an aggrieved applicant may appeal the denial of a license

n.15 (1984)). to the Board of Commissioners (“the Board”) within ten days

of receiving notice that his or her application was denied. See

But that is not the end of the matter. It is the policy of the Ord. § 11-15(b). The Board must hold a hearing on the

federal courts, even in the First Amendment context, to appeal within ten days of the filing of the notice of appeal. Id.

consider any limiting constructions which the government The applicant may be represented by counsel, present

places on its own regulations. Even if the ordinance were not evidence, and cross-examine witnesses at the hearing; the

pluperfectly clear on its face that the City has only 10 days, City Manager has the burden to prove that denial of the

the City has stated that its interpretation of the ordinance is license was appropriate. See Ord. § 11-15(c). The Board

that the City has 10 days within which to complete the must render a decision in writing within five days of hearing

inspections necessary for the issuance of a license--precisely the appeal. See Ord. § 11-15(d). If the Board chooses to

the construction which Nightclubs, Inc. concedes completely remand the matter to the City Manager “for further review

satisfies the definite and specific time limits requirement of and action,” the City Manager must complete further review

FW/PBS. within ten days of the remand. Id. Section 11-15(e) states,

“The applicant shall have the right to seek prompt judicial

In a similar situation a few years ago, the Supreme Court review of the Board of Commissioners’ decision in any court

was faced with a facial invalidity challenge on First of competent jurisdiction as provided by law. The action

Amendment grounds in conjunction with a concession by the shall be promptly reviewed by the court.” Ord. § 11-15(e).

government enforcement agency (in that case, the City of Section 11-17 prescribes almost identical appeal rights for a

New York) that they would interpret the ordinance in a way license holder seeking an appeal of the suspension or

which would cure the ordinance of its defects. The Court revocation of a license. See Ord. § 11-17(a)-(f).

noted that “the city has interpreted the guideline in such a

manner as to provide additional guidance to the officials Soon after the Paducah ordinance went into effect,

charged with its enforcement.” Ward v. Rock Against Racism, Nightclubs filed this action, challenging the constitutionality

491 U.S. 781, 795 (1989). The Court then found that of the ordinance both on its face and as applied.3 After

“[a]dministrative interpretation and implementation of a conducting a hearing on the plaintiff’s motion for a

regulation are, of course, highly relevant to our analysis, for preliminary injunction, the District Court enjoined only those

‘[i]n evaluating a facial challenge to a state law, a federal sections of the ordinance pertaining to the high cost of

court must . . . consider any limiting construction that a state licensing fees and the requirement that landowners submit

court or enforcement agency has proffered.’” Id. at 795-96

(quoting Hoffman Estates v. The Flipside, Inc., 455 U.S. 489,

494 (1982)). Finally, the Court concluded that any defect on 3

Adult World, a store that sells books, magazines, and films, filed a

companion case, but that case is not before us on appeal.

6 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 19

of Paducah, et al. of Paducah, et al.

notarized acknowledgments along with4 license applications. _________________

See Ord. §§ 11-6(e)(13), 11-9(a)-(d). The District Court

declined to enjoin the remaining operational and licensing DISSENT

provisions of the ordinance. Nightclubs appeals that denial _________________

with respect to the licensing scheme, arguing that on its face,

the scheme is an unconstitutional prior restraint upon one’s MERRITT, Circuit Judge, dissenting. This appeal is a First

freedom of expression. Amendment facial challenge to Paducah’s ordinance

regulating the issuance of licenses for sexually-oriented

II. businesses, including nude dancing night clubs like plaintiff’s.

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) is

In deciding whether to grant a preliminary injunction, a controlling. In that case, the Supreme Court set out two

district court must consider and balance four factors: (1) requirements for such licensing schemes: The scheme must

whether the plaintiff has established a substantial likelihood provide for definite and specific time limits within which a

or probability of success on the merits; (2) whether there is a license is to be granted or denied, and an avenue for prompt

threat of irreparable harm to the plaintiff; (3) whether judicial review must be established. The Paducah ordinance

issuance of the injunction would cause substantial harm to satisfies both requirements.

others; and (4) whether the public interest would be served by

granting injunctive relief. See Connection Distrib. Co. v. * * *

Reno, 154 F.3d 281, 288 (6th Cir. 1998), cert. denied, 119

S.Ct. 1496 (1999). This Court reviews the grant or denial of The ordinance itself is clear enough on its face. Section 11-

a preliminary injunction for an abuse of discretion. Id. “‘The 79(a) requires an “immediate” investigation “upon receipt of

district court’s determination will be disturbed only if the an application,” and “the City shall approve or deny the

district court relied upon clearly erroneous findings of fact, issuance of a license to an applicant within ten (10) business

improperly applied the governing law, or used an erroneous days.” The ordinance on its face requires Paducah’s various

legal standard.’” Id. (quoting Blue Cross & Blue Shield administrative investigations and its final decision to take

Mutual of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d place “within ten (10) business days.” So I do not see any

318, 322 (6th Cir. 1997)). In cases involving the First problem on the issue of delay. Even if there were some

Amendment, the crucial inquiry is usually whether the ambiguity, the City has conceded that it must finish its work

plaintiff has demonstrated a likelihood of success on the and issue a decision within the 10-day period. If the City

delays beyond that time, the plaintiff would be entitled

immediately to an injunction.

4

Section 11-6(e)(13) requires a business license applicant to submit

a notarized statement from the landowner of record “acknowledging that In addition, the Court’s opinion proceeds under the

a sexually oriented business establishment is permitted to be located on incorrect assumption that challenging this city ordinance on

the real property.” Ord. § 11-6(e)(13). The District Court found this its face is the appropriate course of action under the

provision burdensome because the landowner is not legally obligated to circumstances. It is true that our First Amendment case law

give such a statement, and concluded that the City had failed to show how

this requirement furthers a substantial government interest. The District has long allowed facial challenges to regulations implicating

Court enjoined § 11-9, which deals with application and annual license First Amendment rights, even in situations where facial

fees, because Paducah had failed to justify the high cost of the fees. The challenges would otherwise be deemed inappropriate. As the

City did not cross-appeal the District Court’s decision on these issues.

18 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 7

of Paducah, et al. of Paducah, et al.

Paducah’s ordinance lacks such an assurance, it is merits. Id. This is so because, as in this case, the issues of

unconstitutional. the public interest and harm to the respective parties largely

depend on the constitutionality of the statute. Id.

IV.

III.

We hold that the City’s licensing scheme, on its face,

violates the First Amendment because it fails to provide that The sole issue raised on appeal is whether Paducah’s

the City will make a licensing decision within a brief licensing scheme, on its face, contains adequate procedural

specified time period, that the status quo will be maintained safeguards as required by the First Amendment. We conclude

during this period and during judicial review, and that a that it does not.

prompt judicial determination will be available. Accordingly,

we conclude that the District Court erred in denying the As an initial matter, we note that Nightclubs has standing

plaintiff’s request to preliminarily enjoin the licensing to bring a facial attack against the City’s licensing scheme.

scheme, and we REVERSE and VACATE the District “In the area of freedom of expression it is well established

Court’s order in this regard. We also REMAND the case for that one has standing to challenge a statute on the ground that

a determination of whether the licensing scheme is severable it delegates overly broad licensing discretion to an

from the remainder of the ordinance, and for further administrative office, whether or not his conduct could be

proceedings consistent with this opinion. proscribed by a properly drawn statute, and whether or not he

applied for a license.” Freedman v. Maryland, 380 U.S. 51,

56 (1965). A form of unbridled discretion is the failure to

place brief, specific time limits on the decision-making

process. See id. at 57; East Brooks Books, Inc. v. City of

Memphis, 48 F.3d 220, 224, reh’g denied (6th Cir.), cert.

denied, 516 U.S. 909 (1995). The rationale for permitting a

facial challenge is that when a licensing scheme allegedly

contains a risk of delay, “‘every application of the statute

create[s] an impermissible risk of suppression of ideas.’”

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24 (1990)

(plurality op.) (quoting City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 798 n.15 (1984))

(brackets in original). Because Nightclubs claims that

Paducah’s licensing scheme creates an impermissible risk of

delay and lacks constitutionally-required safeguards,

Nightclubs has standing to challenge the ordinance on its

face.5

5

Paducah does not dispute that the plaintiff engages in activity

protected by the First Amendment. See, e.g., Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 566 (1991) (erotic dancing constitutes expressive

8 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 17

of Paducah, et al. of Paducah, et al.

A “prior restraint” exists when speech is conditioned upon rendered affirming a denial of a special permit”). For

the prior approval of public officials. See, e.g., Southeastern example, an ordinance could provide that a license shall issue

Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) (denial if a reviewing court fails to reach a decision within a

of use of public forum without procedural safeguards is reasonably brief period of time. Similarly, a city could also

unconstitutional prior restraint). Although prior restraints issue provisional licenses to those businesses and employees

“are not unconstitutional per se,” they come to court bearing who choose to seek judicial review of license denials. As

a heavy presumption against their validity. Id. at 558 discussed previously, the Paducah ordinance fails to even

(citations omitted). Prior restraints are presumptively invalid maintain the status quo, let alone consider the practicalities

because they typically involve “two evils that will not be involved with the necessity of prompt judicial review.

tolerated”: (1) the risk of censorship associated with the

vesting of unbridled discretion in government officials; and There are other measures that a city may institute to help

(2) “the risk of indefinitely suppressing permissible speech” ensure that judicial review will be expeditious. An ordinance

when a licensing law fails to provide for the prompt issuance may provide that an administrative transcript must be

of a license. FW/PBS, 493 U.S. at 225-27. submitted to a court within a brief, specified period of time.

Cities may also petition their state legislatures to pass laws

In Freedman, the Supreme Court invalidated a Maryland that would obligate state courts to resolve municipal

film censorship statute under the First Amendment because administrative appeals within a reasonably short period of

the statute lacked necessary procedural safeguards. time. While these measures may seem burdensome on first

Freedman, 380 U.S. at 59-60. The Court held that three blush, they are reasonable in light of the great11importance this

procedural safeguards are required to avoid constitutional nation attaches to the freedom of expression. It is precisely

infirmity. Id. at 58-59. First, the decision whether to issue a because of this importance that prior restraints upon speech

license must be made within a “specified brief period,” and, are strongly disfavored and presumptively invalid in the first

if judicial review is sought, the status quo must be preserved place. As courts long have recognized, the procedural

pending “a final judicial determination on the merits.” Id. at safeguards outlined in Freedman, FW/PBS, and their progeny

59. Second, the scheme “must also assure a prompt final are necessary to prevent licensing-scheme prior restraints

judicial decision, to minimize the deterrent effect of an from being used as instruments for the suppression of

interim and possibly erroneous denial of a license.” Id. expression.

Third, a censorship scheme must place the burden of

instituting judicial proceedings and proving that expression is In sum, a system of prior restraint that fails to ensure a

unprotected on the censor rather than the exhibitor. Id. at 58. reasonably prompt decision by a judicial officer cannot be

The holding of Freedman has been reaffirmed and applied in squared with the First Amendment. See Baby Tam, 154 F.3d

at 1101-02; East Brooks Books, 48 F.3d at 225. Because

activity “within the outer perimeters of the First Amendment”). 11

Nonetheless, the dissent posits that a facial challenge is not “the It is worth noting that cities have other ways to regulate the

appropriate course of action” in this case because, in effect, the City’s secondary effects of sexually-oriented businesses besides imposing

attorney promised at oral argument that the City would apply the licensing schemes upon them. The Paducah ordinance itself includes a

ordinance in a constitutional manner. However, there is no evidence in number of substantive regulations, such as a requirement that performers

the record to support the limiting construction that the dissent is so eager remain six feet away from patrons. Zoning requirements are another

to read into the ordinance. common way of regulating sexually-oriented businesses.

16 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 9

of Paducah, et al. of Paducah, et al.

The phrase ‘judicial review’ compels this conclusion. a long line of prior restraint cases. See, e.g., Riley v. National

The phrase necessarily has two elements--(1) Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 802 (1988)

consideration of a dispute by a judicial officer, and (2) a (invalidating state licensing requirement for fundraisers that

decision. Without consideration, there is no review; permitted indefinite delays); Southeastern Promotions, 420

without a decision, the most exhaustive review is U.S. at 560 (reaffirming Freedman requirements and striking

worthless. In baseball terms it would be like throwing a down system regulating use of public forum); United States

pitch and not getting a call. As legendary major league v. Thirty-Seven Photographs, 402 U.S. 363, 374 (1971)

umpire Bill Klem once said to an inquisitive catcher: ‘It (applying Freedman requirements to forfeiture proceedings

ain’t nothin’ till I call it.’ This is also true of judicial for obscene materials).

review. Until the judicial officer makes the call, it ain’t

nothin’. In FW/PBS, the Supreme Court applied Freedman to a

Dallas, Texas ordinance similar to the Paducah ordinance at

Baby Tam, 154 F.3d at 1101-02. issue here. The Dallas ordinance required sexually oriented

businesses to pass municipal inspections in order to obtain

Quite obviously, a municipality has no authority to control mandatory licenses. FW/PBS, 493 U.S. at 227. In a plurality

the period of time in which a state court will adjudicate a opinion, Justice O’Connor, joined by Justices Stevens and

matter.10 Indeed, a city does not even possess the authority to Kennedy, held that two of the three Freedman safeguards “are

create a mere “avenue” for prompt judicial review; the essential” to prevent a licensing scheme from causing undue

availability of judicial review is, in effect, dependent upon delay in the issuance of a license: “the licensor must make the

state law. We recognize that, as a practical matter, the decision whether to issue the license within a specified and

requirement of prompt judicial review means that a city reasonable time period during which the status quo is

seeking to impose a licensing scheme must take certain steps maintained, and there must be the possibility of prompt

to avoid constitutional infirmities. Specifically, a city may judicial review in the event that the license is erroneously

very well have to go beyond merely maintaining the status denied.” Id. at 228. The plurality concluded that the third

quo and actually permit the communication of protected Freedman requirement--that the censor bear the burden of

expression until a judicial decision is rendered on a matter. going to court and proving the unprotected nature of the

See 11126 Baltimore, 58 F.3d at 1001 n.18 (county could speech--is inapplicable when a system of prior restraint does

entirely avoid constitutional problem “by permitting adult not require a public official to pass judgment on the content

bookstores to operate until a judicial determination is of any speech. Id. at 229-30. In a concurring opinion, Justice

Brennan, joined by Justices Marshall and Blackmun,

expressed the belief that all three of the procedural safeguards

10

Only a state legislature has the power to pass legislation requiring outlined in Freedman must be applied to any system of prior

state courts to resolve certain types of cases within a particular period of restraint. Id. at 239 (Brennan, J., concurring).

time. For example, legislatures have mandated statutorily that, to ensure

one’s right to a speedy trial, courts must conduct criminal trials within a Although the status of the third Freedman requirement

certain amount of time. See, e.g., K.R.S. § 421.510 (when defendant is remains unclear in the licensing context, this Circuit has

charged with sexual abuse of a person under 16 years of age, defendant

must be tried within 90 days of hearing); K.R.S. § 500.110 (Kentucky previously noted that, under FW/PBS, at least the first two

court must try prisoner facing indictment on additional charges within 180 Freedman safeguards are essential for a licensing scheme to

days of prisoner’s request); Ky. RCr. 9.02 (trials of all criminal comport with the First Amendment. See East Brooks Books,

defendants in Kentucky shall be held as promptly as possible).

10 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 15

of Paducah, et al. of Paducah, et al.

48 F.3d at 224 (invalidating Memphis, Tennessee sexually Freedman’s requirement of “a prompt final judicial decision.”

oriented business ordinance that failed to ensure prompt Freedman, 380 U.S. at 59. See Baby Tam, 154 F.3d at 1102

judicial review). Thus, a licensing scheme must remove (“plurality took issue only with Freedman’s requirement that

standardless discretion from government officials and contain the censor bear the cost of going to court obtain judicial

two procedural safeguards: (1) the decision whether to issue review; otherwise, FW/PBS offered nothing different from

a license must be made within a specified brief period, and Freedman’s concept of what ‘judicial review’ meant”); 11126

the status quo must be maintained during that period and Baltimore, 58 F.3d at 1000 (“Justice O’Connor’s decision in

during judicial review, and (2) there must be a “guarantee of FW/PBS cannot properly be read to relax the Freedman

prompt judicial review.” Id. at 225. prompt judicial review requirement”). Justice O’Connor

described the first two Freedman requirements as “essential”;

Nightclubs argues that Paducah’s ordinance lacks both of she gave no indication that she was modifying the second

these mandatory safeguards. We agree. First, on its face, the requirement of prompt judicial review. See FW/PBS, 493

ordinance fails to ensure that the City will decide whether to U.S. at 228-29. Although she spoke of “the possibility of”

issue a license within a brief specified time period during and “an avenue for” prompt judicial review, see id., Justice

which the status quo is maintained. Although the ordinance O’Connor in no way altered what “judicial review” clearly

states that Paducah will approve or deny an application within means under Freedman and 9its progeny: “a final judicial

ten days, the ordinance also states that no license will issue determination on the merits.” Freedman, 380 U.S. at 59.

unless the City executes, and the premises passes, a variety of

building inspections. See Ord. § 11-7(a). No specific time Indeed, if mere access to a judicial forum were sufficient,

limits for completion of these inspections are placed on the then the second Freedman safeguard would be rendered

“appropriate City departments and agencies.” Id. Further, the virtually meaningless. See Baby Tam, 154 F.3d at 1101.

ordinance does not indicate that a license shall issue if any of Justice O’Connor observed in FW/PBS that “the core policy

the City departments fails to complete a mandatory inspection underlying Freedman is that the license for a First

within a timely period.6 In this regard, the Paducah ordinance Amendment-protected business must be issued within a

reasonable period of time,” and that the first two Freedman

safeguards work together to ensure that the entire review

6

process will be expeditious. FW/PBS, 493 U.S. at 228. As

At oral argument, defendants’ counsel “conceded” that the the Ninth Circuit pointed out in Baby Tam,

ordinance requires the City to issue a license within ten days even if the

City fails to complete the necessary inspections. The dissenting opinion

interprets this “concession” as a limiting construction that binds this

Court. Both the City and the dissent fail to recognize that any limiting

construction must “be made explicit by textual incorporation, binding

judicial or administrative construction, or well-established practice.” City 9

of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988) Even if Justice O’Connor’s plurality opinion could be read as

(ordinance vesting unbridled discretion in city official is unconstitutional reducing the prompt judicial review requirement, it was joined by only

on its face). First Amendment rights would rest on a very thin reed two other justices, and, therefore, could not have overruled Freedman.

indeed if the promises of a city attorney at oral argument were alone Further, there is no doubt that in FW/PBS, Justice Brennan, along with the

sufficient to authoritatively limit the meaning of an ordinance. The record two justices joining his concurring opinion, unequivocally maintained that

in this case is devoid of any evidence that a state court has construed the all three Freedman requirements should apply, including the requirement

Paducah ordinance or that “a well-understood and uniformly applied of “a prompt judicial determination.” FW/PBS, 493 U.S. at 239

practice has developed that has virtually the force of a judicial (Brennan, J., concurring) (emphasis added).

14 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 11

of Paducah, et al. of Paducah, et al.

Moreover, this Circuit and a number of other circuits have is indistinguishable from the Dallas ordinance struck down in

held that a licensing scheme must reasonably ensure a prompt FW/PBS. See FW/PBS, 493 U.S. at 227 (although ordinance

judicial determination, and not mere access to judicial review. stated license would issue within 30 days of application,

See Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d ordinance did not “set a time limit within which the

1097, 1101 (9th Cir. 1998) (“‘prompt judicial review’ means [necessary] inspections must occur”). Moreover, § 11-6(e)

the opportunity for a prompt hearing and a prompt decision by delineates the information that comprises a “completed”

a judicial officer”); 11126 Baltimore Blvd., Inc. v. Prince business license application. See Ord. § 11-6(e). The

George’s County, Maryland, 58 F.3d 988, 1000-01 (4th Cir.) eleventh item in this list is that the applicant “must have a

(en banc), cert. denied, 516 U.S. 1010 (1995) (under FW/PBS current City business license, and the premises must be

and its progeny, prompt judicial determination is required); inspected and found to be in compliance with health, fire,

East Brooks Books, 48 F.3d at 225 (prompt judicial zoning, plumbing and building codes.” Ord. § 11-6(e)(11).

adjudication required). Although the First, Fifth, and Thus, § 11-6(e)(11) seems to require these inspections to be

Eleventh Circuits have concluded that “for licensing completed before the ten-day investigatory period in § 11-7(a)

ordinances, prompt judicial review only means access to will be triggered. The ordinance does not explain how

prompt judicial review,” Boss Capital, Inc. v. City of inspections can be conducted prior to submission of a

Casselberry, 1999 WL 688046, slip op. at *4 (11th Cir. Sept. completed license application, and such a requirement is

3, 1999),8 this Court remains persuaded that Supreme Court plagued with the risk of indefinite delays. Even if § 11-

precedent requires a sufficiently prompt determination on the 6(e)(11) can be read to merely foreshadow the City’s

merits. responsibilities under § 11-7(a), these sections fail to ensure

that a license will be issued within a brief specified time

Like the Fourth and Ninth Circuits, we do not read Justice period for the reasons discussed above.

O’Connor’s plurality opinion in FW/PBS as relaxing

Furthermore, the ordinance fails to preserve the status quo

either during the administrative process for license renewals

or pending judicial review of decisions to suspend, revoke, or

as a dispute over whether the applicant falsely answered a question on the not renew licenses. If Paducah chooses not to renew a

application. See Ord. §§ 11-7(a)(3), 11-8(2). Because any denial of a sexually oriented business license, that business must cease

license would necessarily implicate the First Amendment, a licensing

scheme must, on its face, ensure that all aggrieved applicants will be

granted a prompt review--even those employees and business owners who

do not have the wherewithal to launch costly constitutional attacks against construction.” Id. at n.11. For that reason, the dissent’s reliance on Ward

the ordinance. v. Rock Against Racism, 491 U.S. 781 (1989), is totally misplaced. In

8 Rock Against Racism, which was not a prior restraint case, but, rather, a

The Eleventh Circuit recently held in Boss Capital, as the First and case involving a time, place, or manner regulation, the District Court had

Fifth Circuits previously have held, that the mere availability of a judicial “expressly found” that the city engaged in policies and practices that

forum may satisfy the prompt judicial review requirement. See Boss limited the discretion of public officials. Id. at 795. There is no such

Capital, 1999 WL 688046, slip op. at *5; TK’s Video, Inc. v. Denton finding in this case. We can neither presume that municipal officials will

County, Texas, 24 F.3d 705, 709 (5th Cir. 1994); Jews for Jesus, Inc. v. act in good faith and respect a speaker’s First Amendment rights, nor read

Massachusetts Bay Transp. Auth., 984 F.2d 1319, 1327 (1st Cir. 1993). a requirement into an ordinance that is not fairly and evidently present.

When the Seventh Circuit was presented with the question, an en banc See City of Lakewood, 486 U.S. at 770, n.11; United Food & Commercial

panel of that court sharply split on the issue. See Graff v. City of Chicago, Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163

9 F.3d 1309 (7th Cir. 1993), cert. denied, 511 U.S. 1085 (1994). F.3d 341, 359 (6th Cir. 1998).

12 Nightclubs, Inc. v. City No. 98-6581 No. 98-6581 Nightclubs, Inc. v. City 13

of Paducah, et al. of Paducah, et al.

operation immediately. The previous license does not remain decisions, but no time limits were placed on the city’s

in effect while an appeal proceeds before the Board or, later, obligation to provide an administrative transcript. Id.

while an action is pending in court. See Ord. §§ 11-10, 11-15. Moreover, although the appeal would have had “precedence

In addition, if the City suspends or revokes a license for one over other litigation,” there was no assurance that the

of the reasons provided in § 11-16, that decision will be Tennessee court would have resolved the appeal in a timely

stayed while an appeal proceeds before the Board, but it will manner. Id. We noted that under Supreme Court case law,

not be stayed pending judicial review. See Ord. § 11-17(b), judicial review processes with “potential delays of over five

11-17(f). Accordingly, the ordinance fails to maintain the months are impermissible.” Id. (discussing Southeastern

status quo pending review as the First Amendment requires. Promotions, 420 U.S. at 562, and Thirty-Seven Photographs,

See Freedman, 380 U.S. at 59 (“[a]ny restraint imposed in 402 U.S. at 373-74). Kentucky law fails to guarantee judicial

advance of a final judicial determination on the merits must review of Paducah’s licensing decisions within any particular

. . . be limited to preservation of the status quo for the shortest period of time, let alone within five months.

fixed period compatible with sound judicial resolution”).

The defendants argue, and the District Court concluded,

The second Freedman safeguard--the guarantee of prompt that the requirement of prompt judicial review is satisfied

judicial review--is also lacking in this case. The ordinance because an aggrieved applicant or licensee may seek

provides that an applicant, or licensee whose license has been preliminary injunctive relief soon after filing an original

suspended or revoked, may seek a review of the Board’s action in Kentucky court. This argument both misinterprets

decision “in any court of competent jurisdiction.” Ord. §§ 11- a long line of legal precedent in the area of prior restraints and

15(e), 11-17(f). Although Kentucky law does not provide for minimizes the importance of the First Amendment freedoms

judicial appeals from administrative decisions, an aggrieved at stake. As previously discussed, Freedman, FW/PBS, and

applicant or licensee may file “an original action” in East Brooks Books require an assurance of prompt judicial

Kentucky court. See K.R.S. § 23A.010(4) (review of review; a theoretical possibility of expeditious judicial review

administrative decision constitutes not appeal, but original is not constitutionally sufficient. A guarantee of prompt

action). The case then proceeds according to standard court judicial review is necessary “because undue delay results in

rules, with the state court conducting a “limited trial de novo, the unconstitutional suppression of protected speech.”

including review of the record of the board and other FW/PBS, 493 U.S. at 228. If an applicant challenges the

evidence.” City of Covington v. Tranter, 673 S.W.2d 744, Board’s decision to uphold the denial of a license, there is

748 (Ky. Ct. App. 1984). The person seeking review of the nothing in Kentucky law requiring the state court to swiftly

administrative decision generally bears the burden of schedule a hearing on a motion for injunctive relief. While

furnishing the transcript to the state court. Id. Kentucky law we trust state courts to exercise due diligence, we cannot be

does not in any way limit the time for furnishing transcripts, sure that a state judge, who often is elected and toiling under

conducting a court hearing, or rendering a judicial decision. a busy docket, will7 conduct a hearing and render a decision in

a prompt manner.

This procedure for judicial review contains an even greater

potential for indefinite delays than the Memphis scheme this

Court found unconstitutional in East Brooks Books. See East 7

The District Court not only assumed that the state court would

Brooks Books, 48 F.3d at 225. In that case, Tennessee law speedily issue injunctive relief, but also assumed that a judicial appeal

expressly authorized judicial review of administrative would be brought on First Amendment grounds. There could, of course,

be non-constitutional reasons for challenging the denial of a license, such