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

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0270p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant/ -

DEJA VU OF CINCINNATI, L.L.C.,

Cross-Appellee, -

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Nos. 00-4420/4529

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v. >

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Defendants-Appellees, -

THE UNION TOWNSHIP BOARD OF TRUSTEES et al.,

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Intervenor-Appellee/ -

ATTORNEY GENERAL OF THE STATE OF OHIO,

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Cross-Appellant. -

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 99-00726—Sandra S. Beckwith, Chief District Judge.

Argued: December 8, 2004

Decided and Filed: June 21, 2005

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.

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COUNSEL

ARGUED: H. Louis Sirkin, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio,

Bradley J. Shafer, SHAFER & ASSOCIATES, Lansing, Michigan, for Appellant. Stephen P.

Carney, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Lawrence Edward

Barbiere, SCHROEDER, MAUNDRELL, BARBIERE & POWERS, Cincinnati, Ohio, for

Appellees. ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, SIRKIN, PINALES, MEZIBOV &

SCHWARTZ, Cincinnati, Ohio, Bradley J. Shafer, SHAFER & ASSOCIATES, Lansing, Michigan,

for Appellant. Stephen P. Carney, Douglas R. Cole, Sharon A. Jennings, OFFICE OF THE

ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Lawrence Edward Barbiere, SCHROEDER,

MAUNDRELL, BARBIERE & POWERS, Cincinnati, Ohio, for Appellees. Scott D. Bergthold,

LAW OFFICE OF SCOTT D. BERGTHOLD, Chattanooga, Tennessee, Jack R. Burns, Bellevue,

Washington, for Amici Curiae.

GILMAN, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER,

GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined. CLAY, J. (pp. 18-23), delivered a

separate opinion concurring in part and dissenting in part, in which DAUGHTREY and COLE, JJ.,

1

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 2

joined. MARTIN, J. (p. 24), delivered a separate opinion dissenting in part, in which

DAUGHTREY and MOORE, JJ., joined.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Deja Vu of Cincinnati, L.L.C. operates an adult

cabaret in Union Township, Clermont County, Ohio. In 1999, Union Township enacted an

ordinance (locally known as a resolution) in an attempt to minimize the adverse secondary effects

of sexually oriented businesses. Deja Vu filed a complaint in the United States District Court for

the Southern District of Ohio, alleging that the resolution violated the First and Fourteenth

Amendments to the United States Constitution. The district court granted in part and denied in part

Deja Vu’s subsequent motion for a preliminary injunction. In response to this decision, Union

Township amended the resolution to eliminate the provisions that the district court concluded were

likely to be held unconstitutional. Union Township also eliminated other provisions that were not

found to be suspect by the district court.

Deja Vu appealed, claiming that the district court erred in denying in part its motion for a

preliminary injunction. The Ohio Attorney General, who intervened in the lawsuit to defend the

constitutionality of Ohio’s enabling statute, filed a cross-appeal. A divided panel of this court ruled

in favor of Deja Vu on the following two points: (1) that the resolution was an unconstitutional prior

restraint on protected First Amendment expression because it failed to provide for prompt judicial

review of an adverse licensing decision, and (2) that the resolution’s more restrictive closing times

for adult cabarets without liquor licenses as compared to those with liquor licenses was a violation

of the First and Fourteenth Amendments. Deja Vu of Cincinnati, L.L.C. v. Union Township Bd. of

Trs., 326 F.3d 791 (6th Cir. 2003).

We granted a rehearing en banc to reconsider whether the resolution is consonant with both

the First and Fourteenth Amendments. For the reasons set forth below, we AFFIRM the district

court’s decision to deny in part the preliminary injunction, express NO OPINION on the district

court’s decision to grant in part the preliminary injunction in light of Union Township’s subsequent

modification of the resolution, and REMAND the case for further proceedings consistent with this

opinion.

I. BACKGROUND

Deja Vu began operating an adult cabaret in Union Township in April of 1999. The

nightclub features performances by clothed, semi-nude, and nude dancers.

In August of 1999, the Board of Trustees of Union Township (the Board) enacted Resolution

No. 99-15 to regulate the licensing of cabaret-style nightclubs that feature adult entertainment. The

resolution was enacted pursuant to the authority granted to Union Township by Ohio Revised Code

§ 503.51-59 for the purpose of protecting the “public health, safety and welfare.” Resolution No.

99-15 § A. In particular, the resolution states that it was passed on the basis of the Board’s “review

of other cities’ studies and citizen comments regarding the secondary effects of sexually oriented

businesses,” which provided “convincing evidence” that such businesses “have a deleterious effect

on both existing businesses around them and the surrounding residential areas . . . .” Id. § C.

Deja Vu filed its complaint in September of 1999, alleging that various provisions of

Resolution No. 99-15 violate the First and Fourteenth Amendments to the United States

Constitution. At the same time, Deja Vu filed a motion for a preliminary injunction. Consideration

of the motion was stayed pending a decision by the United States Supreme Court in City of Erie v.

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 3

Pap’s A.M., 529 U.S. 277 (2000) (holding that public indecency ordinances may be treated as if they

were content-neutral regulations). After the Supreme Court issued its decision in City of Erie, Deja

Vu renewed its motion for a preliminary injunction. The district court granted the motion in part,

enjoining Union Township from enforcing the sections of Resolution No. 99-15 that pertain to

warrantless health and safety inspections of the premises, §§ (L)(1) and (M)(2), and to the disclosure

of personal information concerning every partner and shareholder of the business, §§ (D)(5)(d) and

(e). In October of 2000, the district court denied Deja Vu’s motion to alter or amend the preliminary

injunction.

Deja Vu filed a timely appeal in November of 2000. The Attorney General of Ohio, who

intervened in the case to defend the constitutionality of Ohio Revised Code § 503.51-59, cross-

appealed the district court’s decision to enjoin the warrantless health and safety inspections. While

the appeal and cross-appeal were pending, Union Township enacted Resolution No. 00-22 to amend

and replace Resolution No. 99-15, thereby eliminating those provisions that the district court had

determined were likely to be held unconstitutional. The new resolution also modified other aspects

of the personal-disclosure and civil-disability provisions found in the older ordinance. For the

remainder of this opinion, the term “resolution” will be used to refer to current Resolution No. 00-

22.

II. ANALYSIS

A. Standard of review

Whether a preliminary injunction should be granted is a decision left to the sound discretion

of the district court. Allied Sys., Ltd. v. Teamsters Nat’l Auto. Transporters Indus. Negotiating

Comm., 179 F.3d 982, 985-86 (6th Cir. 1999). A district court, in deciding whether to grant an

injunction, “abuses its discretion when it applies the incorrect legal standard, misapplies the correct

legal standard, or relies upon clearly erroneous findings of fact.” Schenck v. City of Hudson, 114

F.3d 590, 593 (6th Cir. 1997). The following factors are to be considered by a district court in

deciding whether to grant a preliminary injunction:

(1) whether the plaintiff has established a substantial likelihood or probability of

success on the merits; (2) whether there is a threat of irreparable harm to the

plaintiff; (3) whether issuance of the injunction would cause substantial harm to

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

relief.

Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000). Like the parties, the district

court primarily focused on the first of these four factors—whether Deja Vu is likely to succeed on

the merits of its claims. We look at each of these claims in turn.

B. Prompt judicial review

1. Quasi-judicial proceeding

Deja Vu claims that the resolution is unconstitutional on its face because it fails to provide

for prompt judicial review when an application for a license is denied. Citing M.J. Kelley Co. v. City

of Cleveland, 290 N.E.2d 562 (Ohio 1972), Deja Vu contends that the resolution does not allow for

the type of “quasi-judicial proceeding” required for an appeal to lie pursuant to Ohio Revised Code

§ 2506. Id. at 563 (Syllabus ¶ 1) (“[A]dministrative actions of administrative officers and agencies

not resulting from quasi-judicial proceedings are not appealable to the Court of Common Pleas

under the provisions of R.C. 2506.01.”).

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 4

In its original memorandum and order, the district court did not address Deja Vu’s argument

on this point. It did, however, rule on the issue after Deja Vu again raised the argument in a motion

to alter or amend the judgment. After finding that the enabling legislation passed by Ohio to allow

townships to regulate adult cabarets, Ohio Rev. Code § 503.57, “provides for appeal of a denial or

revocation by the Board of Trustees of a permit to operate an adult cabaret,” the district court denied

Deja Vu’s request for a preliminary injunction on this basis.

Under the resolution, an applicant for an adult cabaret license is permitted to “present

information, evidence, and testimony to the Board, at a public hearing regarding the application.”

Resolution No. 00-22 § (F)(1). The Board must make a decision on the application within 30 days

of the application’s submission. Id. As set forth in the Ohio Revised Code, “[a]ny person adversely

affected by an order of the board denying or revoking a permit to operate an adult cabaret may

appeal from the order of the board to the court of common pleas . . . in accordance with Chapter

2506[] of the Revised Code.” Ohio Rev. Code § 503.57. Pursuant to Chapter 2506, “[e]very final

order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission,

department, or other division of any political subdivision of the state may be reviewed by the court

of common pleas,” but only if the final order, adjudication or decision is the product of a “quasi-

judicial proceeding.” Ohio Rev. Code § 2506.01; see M.J. Kelley Co., 290 N.E.2d at 563 (Syllabus

¶ 1).

Proceedings of an administrative agency “are not quasi-judicial where there is no

requirement for notice, hearing and the opportunity for introduction of evidence.” M.J. Kelley Co.,

290 N.E.2d at 563 (Syllabus ¶ 2). The Ohio Supreme Court determined that the administrative

proceeding before it in M.J. Kelley Co. was not appealable pursuant to Ohio Revised Code

§ 2506.01 because, in determining the lowest bidder for a city contract, the Board of Control of the

City of Cleveland “was not required to give advance notice of the meeting to the bidders[,] and

bidders were not required to be present at such a meeting,” and that, “[i]n fact, no notice” was given

to bidders. Id. at 565.

In contrast, the resolution in the present case provides that the “Board shall hear any

application for a permit or renewal permit, at a public hearing.” Resolution No. 00-22 § (F)(1).

Ohio Revised Code § 503.52 requires a board of trustees to publish “in at least one newspaper of

general circulation in the township notice of the public hearings, including the time, date, and place,

once a week for two weeks immediately preceding the hearings.” Moreover, the resolution states

that, during the public hearing, “[t]he applicant shall have the opportunity to present information,

evidence, and testimony to the Board . . . .” Resolution No. 00-22 § (F)(1). The resolution therefore

satisfies the three requirements that define a “quasi-judicial proceeding”: (1) a hearing, (2) notice,

and (3) the opportunity to introduce evidence. M.J. Kelley Co., 290 N.E.2d at 563 (Syllabus ¶ 2).

Deja Vu responds by citing the following four cases in support of its position that the

resolution does not provide for adequate judicial review: Local No. 2134 v. Bd. of Marion Township

Trs., 514 N.E.2d 1386 (Ohio Ct. App. 1986); Banjoff v. Township of Carlisle Bd. of Trs.,

No. 98CA007079, 1999 WL 239416 (Ohio Ct. App. Apr. 14, 1999) (unpublished); Ramacciatti v.

City of Cleveland, No. 66678, 1994 WL 326238 (Ohio Ct. App. July 7, 1994) (unpublished); and

City of Huber Heights v. Liakos, No. 2000 CV 03932 (Ohio Com. Pl. Sept 25, 2000) (unpublished).

All of these cases, however, are distinguishable on their facts from the present case.

In Local No. 2134, the Ohio Court of Appeals held that the proceedings on a grievance filed

by several employees of Marion Township were not “quasi-judicial” in nature. Local No. 2134, 514

N.E.2d at 1389. The Ohio Court of Appeals relied on the undisputed fact that the Marion Township

Board of Trustees did not hold a hearing or provide the employees with notice. Id. at 1388 (stating

that “at no time did [the board] hold a hearing with notice given to plaintiffs concerning the

grievance”). Unlike the employees in Local No. 2134, who challenged the grievance procedure as

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 5

it applied to them, Deja Vu is challenging the Union Township resolution on its face. Here the

resolution clearly provides for a hearing, notice, and the opportunity to introduce evidence, so that

the Board is acting as a quasi-judicial administrative body when it evaluates a request for a permit.

In Banjoff, the Ohio Court of Appeals held that an appeal was not available pursuant to Ohio

Revised Code § 2506.01 because, unlike in the case before us, the administrative proceeding

initiated by Banjoff to contest Carlisle Township’s failure to appoint him as a full-time firefighter

did not provide “for notice, a hearing, or the opportunity to present evidence . . . .” Banjoff, 1999

WL 239416, at *2. The Ohio Court of Appeals similarly held in Ramacciatti that an administrative

proceeding conducted by Cleveland’s Civil Service Commission did not constitute a “quasi-judicial

proceeding” because “[n]o official notice of a hearing was provided,” and the plaintiff was not

afforded the “opportunity to subpoena witness[es], to cross examine witnesses, or to have testimony

taken under oath.” Ramacciatti, 1994 WL 326238, at *4.

Finally, in City of Huber Heights, the court of common pleas’s decision concerning the

licensing of a sexually oriented business hinged on the biased nature of the individual who was the

relevant decisionmaker. City of Huber Heights, No. 2000 CV 03932 (slip op.), at 12-13 (“[I]t is

axiomatic that a hearing conducted before a biased individual . . . would not fulfill a requisite

requirement of fundamental fairness that must pre-dominate in all quasi-judicial proceedings.”). The

court of common pleas emphasized that the hearing was no more than a “reconsideration” by the

same individual—the City Manager—of his determination “‘that probable grounds exist for denial,

suspension, or revocation of a permit.’” Id. at 10-12 (quoting § 31 of Huber Height’s sexually

oriented business ordinance). In affirming the court of common pleas’s decision in City of Huber

Heights, the Ohio Court of Appeals recognized that combining the investigative and adjudicative

functions in a single individual, as opposed to an institutional agency, “undermines the quality of

neutrality that is the central purpose of a review process” because it gives the individual “unbridled

discretion.” City of Huber Heights v. Liakos, 761 N.E.2d 1083, 1091 (Ohio Ct. App. 2001).

Unlike in City of Huber Heights, the decisionmaking authority under the Union Township

resolution is vested in an administrative body rather than in an individual. The Union Township

resolution also takes the further precaution of vesting the investigative function in the police

department and the adjudicative function in the Board. Resolution No. 00-22 § (E) (providing that

the police department is responsible for preparing a written report of the results of an investigation

into the background of any applicant for a permit and anyone named in the application); id. § (F)(1)

(stating that the Board is responsible for considering “any application for a permit or renewal permit,

at a public hearing”).

We therefore hold that the administrative hearing provided for by the resolution constitutes

a “quasi-judicial proceeding” as that term has been defined by the Ohio Supreme Court in M.J.

Kelley Co., 290 N.E.2d at 563 (Syllabus ¶ 2).

2. Civil proceeding

Deja Vu also argues that the resolution does not provide for prompt judicial review because

many decisions by the Board to deny or revoke licenses will likely be “issued preliminary to or as

a result of a criminal proceeding,” and that such decisions are unreviewable under Ohio Revised

Code § 2506.01. In providing for judicial review of the Board’s determinations, the Union

Township resolution permits any applicant who is denied a license, or any licensee whose license

is revoked, to “appeal the action of the Board in accordance with chapter 2506 of the Ohio Revised

Code.” Resolution No. 00-22 §§ J(1)-(2). Ohio Revised Code § 503.57 further provides that “[a]ny

person adversely affected by an order of the board denying or revoking a permit to operate an adult

cabaret may appeal from the order of the board to the court of common pleas . . . in accordance with

Chapter 2506.[01] of the Revised Code.”

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Notwithstanding these explicit provisions for judicial review of the Board’s adverse licensing

decisions, Deja Vu contends that most decisions will be beyond the review of the Ohio courts

because Ohio Revised Code § 2506.01 prohibits appeals from “any order, adjudication, or decision

that is issued preliminary to or as a result of a criminal proceeding.” The resolution allows the

Board to deny or revoke a license if it finds that an applicant or licensee has been convicted within

the past three years of a sex offense under Ohio Revised Code § 2907, or convicted within the past

five years of an offense under Ohio Revised Code § 503.53(C), which prohibits adult cabaret

employees from touching, fondling, or displaying their own or another person’s genitals, pubic area,

buttocks, or (female) breasts. Resolution No. 00-22 § (I). Deja Vu insists that where a license is

denied or revoked because of a conviction under Ohio Revised Code § 2907 or § 503.53(C), the

Board’s public hearings and subsequent licensing decision are transformed into a “criminal

proceeding” and thus shielded from judicial review by Ohio Revised Code § 2506.01.

We reject this far-reaching argument because we agree with the Ohio State Attorney General

that, although not a model of clarity, the exclusionary language in Ohio Revised Code § 2506.01 is

aimed at preventing criminal defendants from circumventing normal appellate procedures by

precluding them from seeking interlocutory appeals in the Ohio Court of Common Pleas. Also

evident is the fact that the denial or revocation of a license by the Board, even if predicated on a

criminal act, is not “issued preliminary to or as a result of a criminal proceeding.” This is because

the Board’s authority under the resolution is civil, not criminal. See Ohio Rev. Code § 503.51-59,

the enabling statute that permits townships to regulate adult cabarets.

The dissenting opinion embraces Deja Vu’s argument and insists that the majority’s

“analysis is fundamentally misguided . . . because Ohio law does not provide for any judicial review

whatsoever for a substantial number of adverse licensing decisions.” Dissenting Op. at 18. But the

dissent is unable to cite any authority to support its broad interpretation of the exclusionary effect

of Ohio Revised Code § 2506.01, nor are we aware of any adverse licensing decisions by the Board

that have been denied judicial review in the Ohio Court of Common Pleas because the Board’s

decision was deemed to have been “issued preliminary to or as a result of a criminal proceeding.”

The Supreme Court instructs us that “every reasonable construction must be resorted to, in

order to save a [legislative act] from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657

(1895). Thus, “if an otherwise acceptable construction of a statute would raise serious constitutional

problems, and where an alternative interpretation of the statute is fairly possible, we are obligated

to construe the statute to avoid such problems.” INS v. St. Cyr, 533 U.S. 289, 299-300 (2001)

(citation and quotation marks omitted). This case presents such a situation. Absent any

interpretation of § 2506.01 by the Ohio courts to the contrary, we must interpret the resolution in

a manner that saves its constitutionality—that is, by concluding that Ohio Revised Code § 2506.01

permits an appeal from an adverse licensing decision by the Board whether or not the decision is

predicated upon a criminal act.

3. Prompt judicial decision

Deja Vu further maintains that the resolution’s provision for the issuance of a temporary

license pending appeal of an adverse licensing determination does not provide for the “prompt

judicial decision” that is required when the government imposes a prior restraint on the freedom of

expression. See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, 274

F.3d 377, 403 n.8 (6th Cir. 2001) (“Merely preserving the status quo, however, is not sufficient . . . .

The decision whether or not to grant a license must still be made within a specified, brief period, and

the licensing scheme ‘must assure a prompt judicial decision.’”) (quoting Freedman v. Maryland,

380 U.S. 51, 59 (1965)) (emphasis in original).

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 7

The Supreme Court in Freedman held that three procedural safeguards are required in order

to ensure that a prior restraint on the freedom of expression is constitutional. First, “[a]ny restraint

imposed in advance of a final judicial determination on the merits must . . . be limited to

preservation of the status quo for the shortest fixed period compatible with sound judicial

resolution.” 380 U.S. at 59. Second, “the procedure must also assure a prompt final judicial

decision.” Id. And third, the burden of proving that the expression in question is unprotected must

rest on the government. Id. at 58.

The Sixth Circuit has held that “[l]icensing schemes in a city ordinance regulating sexually

oriented businesses constitute a prior restraint that must incorporate at least the first two Freedman

procedural safeguards.” Deja Vu of Nashville, Inc., 274 F.3d at 400-01 (holding that a Nashville

ordinance regulating the licensing of sexually oriented businesses did not provide for a prompt

judicial determination because it required “aggrieved applicants [to] proceed to court via a

discretionary route” instead of allowing for an appeal as of right); see also FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 228 (1990) (plurality opinion of O’Connor, J.) (stating that “the first two

[Freedman] safeguards are essential: the licensor must make the decision whether to issue the

license within a specified and reasonable time period during which the status quo is maintained, and

there must be the possibility of prompt judicial review in the event that the license is erroneously

denied”). In analyzing the constitutionality of an adult-business-licensing scheme, this court has

recognized that “any system of prior restraint carries a heavy presumption against its validity.” Deja

Vu of Nashville, Inc., 274 F.3d at 391.

Deja Vu maintains that the resolution in question fails to provide for prompt judicial review

because it does not mandate specific time limits within which the Ohio courts must complete their

review of an adverse licensing determination. This issue of what procedures are necessary in the

context of an adult-business-licensing scheme to “assure prompt judicial review of an administrative

decision denying a license” was recently explored by the Supreme Court in City of Littleton v. Z.J.

Gifts D-4, L.L.C., 124 S.Ct. 2219, 2221 (2004). The city ordinance at issue in Littleton required “an

applicant to provide certain basic information about the business,” directed that a license be denied

if an applicant had “been convicted of certain crimes within the prior five years,” required the city

to issue a decision within “about 40 days,” and permitted the city’s decision to be “appealed to the

[state] district court.” Id. at 2222, 2225 (alteration in original). After concluding that the “First

Amendment does not require special ‘adult business’ judicial review rules,” the Court accepted the

city’s invitation to modify FW/PBS by withdrawing its implication that Freedman’s special judicial

review rules apply to adult-business-licensing schemes. Id. at 2224 (finding that “Colorado’s

ordinary ‘judicial review’ rules offer adequate assurance, not only that access to the courts can be

promptly obtained, but also that a judicial decision will be promptly forthcoming”) (emphases in

original).

The Supreme Court was faced with a statute in Freedman that prohibited the exhibition of

any film until it was approved by a state censorship board, and the board’s denial of a license would,

“without any judicial participation, effectively bar[] exhibition of any disapproved film, unless and

until the exhibitor undert[ook] a time-consuming appeal to the Maryland courts and succeed[ed] in

having the Board’s decision reversed.” Freedman, 380 U.S. at 54-55. As the Supreme Court

explained in Littleton, the special characteristics of the statute before the court in Freedman

necessitated that strict time limits be placed on judicial review in order to prevent “undue delay

resulting in the unconstitutional suppression of protected speech.” Littleton, 124 S.Ct. at 2225

(observing that the statute in Freedman created “a scheme with rather subjective standards and

where a denial likely meant complete censorship”) (quoting FW/PBS, 493 U.S. at 228); see also

Freedman, 380 U.S. at 61 (finding “that films differ from other forms of expression,” and warning

“that the nature of the motion picture industry may suggest different time limits for a judicial

determination”).

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In contrast, the adult-business-licensing ordinance before the court in Littleton did “not seek

to censor material” and applied “reasonably objective, nondiscretionary criteria.” 124 S.Ct. at 2225

(emphasis in original). Finding that an “adult business licensing scheme does not present the grave

dangers of a censorship system,” the court concluded that “ordinary court procedural rules and

practices, in Colorado as elsewhere, provide reviewing courts with judicial tools sufficient to avoid

delay-related First Amendment harm.” Id. at 2224-26 (quotation marks omitted).

Like the ordinance in Littleton, the adult-cabaret-licensing resolution challenged by Deja Vu

“applies reasonably objective, nondiscretionary criteria.” Id. at 2225. The resolution states that the

Board “shall approve the application” for an adult cabaret license unless the application is false or

incomplete, the applicant is under the age of 18, the operation of the cabaret would violate existing

zoning laws, the applicant has committed certain civil offenses within the last three years, or the

applicant is a business entity that is not registered to do business in Ohio. Resolution No. 00-22

§ (F)(2)(a)-(g). Given that “[t]hese objective criteria are simple enough to apply and their

application simple enough to review,” and that Deja Vu has given us “no reason to doubt the

willingness of [Ohio]’s judges to exercise the[ir] powers wisely so as to avoid serious threats of

delay-induced First Amendment harm,” we conclude that the resolution fulfills Littleton’s

requirements for prompt judicial review. Littleton, 124 S.Ct. at 2225.

The resolution in the present case also provides for an additional First Amendment safeguard

not contained in the ordinance that was upheld by the court in Littleton— the issuance of a

temporary permit. Upon request, the Union Township Board must issue the applicant a temporary

permit that will allow the operation of the adult cabaret “until such time as the appeal process . . .

has been completed.” Resolution No. 00-22 § (J)(1). The inclusion of this provision may well have

been prompted by this court’s decisions suggesting that cities could avoid constitutional infirmities

in their adult-business-licensing schemes by issuing “provisional licenses” that “actually permit the

communication of protected expression until a judicial decision is rendered.” Nightclubs, Inc. v.

City of Paducah, 202 F.3d 884, 894 (6th Cir. 2000) (invalidating an adult-cabaret-licensing scheme

because it did not include such a provision); see also Currence v. City of Cincinnati, Nos. 00-

3985/4041, 2002 WL 104778, at *7 (6th Cir. Jan. 24, 2002) (per curiam) (unpublished) (noting that

our decisions have “suggested that a city enact an ordinance that: 1) requires a license to issue if

the court does not decide the issue within a certain period of time; or 2) issues a provisional license

to businesses or employees who seek judicial review”).

Temporary permits are one way to comply with Freedman’s requirement that “[a]ny restraint

imposed in advance of a final judicial determination on the merits must . . . be limited to the

preservation of the status quo.” Freedman, 380 U.S. at 59; see also Deja Vu of Nashville, Inc., 274

F.3d at 403 n.8 (finding that Freedman’s requirement of “preserving the status quo” could be met

by the issuance of temporary licenses that would allow “existing businesses to continue to operate

until an adjudication on the merits” of their appeals).

Although the resolution under consideration in this case provides for temporary licenses to

be issued while an appeal is pending, Deja Vu nevertheless maintains that the resolution fails to

preserve the status quo. In support of its argument, Deja Vu points to the provision that requires an

applicant operating under a temporary permit “to follow all other guidelines set forth in [the]

resolution.” Resolution No. 00-22 § (J)(1). We read this section as requiring Deja Vu to adhere to

the regulations governing duly licensed cabarets, such as complying with the hours-of-operation

provision or maintaining a list of employees with the Union Township Clerk.

Deja Vu is therefore correct that possession of a temporary license does not permit an adult

cabaret to operate without any governmental regulation. Compliance with the resolution’s minimal

requirements, however, falls far short of the kind of “complete censorship” that prompted the

Supreme Court in Freedman to fashion the status quo requirement. Littleton, 124 S.Ct. at 2225.

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 9

An adverse decision by the censorship board in that case would have barred the film from being

shown during the pendency of the lengthy appeal. Here, Deja Vu may still operate as an adult

cabaret even though it must close earlier than it would like. Such a regulation “is unlikely in

practice to suppress totally” Deja Vu’s protected expression. Id. (upholding the adult-business-

licensing ordinance even though it did not provide for temporary licences because “[s]ome license

applicants will satisfy the criteria even if others do not; hence the community will likely contain

outlets that sell protected adult material”). We therefore conclude that, in providing for temporary

permits, the resolution effectively preserves the status quo while appeals from the Board’s adverse

licensing decisions are pending.

C. Hours of operation

Deja Vu’s next contention is that the hours-of-operation provision in the resolution violates

the First Amendment. The district court denied Deja Vu a preliminary injunction on this issue after

finding that the hours-of-operation provision “furthers an important or substantial interest in the

protection of public safety,” and that it “is reasonable and no more repressive of protected speech

than is essential to serve Defendants’ legitimate interests.” In so ruling, the district court

emphasized that Deja Vu is still allowed to operate for 84 hours each week.

To analyze Deja Vu’s claim, we must first determine what level of scrutiny to apply to the

resolution. We are guided by the Supreme Court’s decision in City of Erie v. Pap’s A.M., 529 U.S.

277 (2000), in which the Court held that “government restrictions on public nudity . . . should be

evaluated under the framework set forth in [United States v.] O’Brien [391 U.S. 367 (1968),] for

content-neutral restrictions on symbolic speech.” City of Erie, 529 U.S. at 289, 293 (applying “the

‘less stringent’ standard from O’Brien” that is normally reserved for content-neutral regulations

because the “State’s interest in preventing harmful secondary effects is not related to the suppression

of expression”). Under the four-part test outlined in O’Brien, “a government regulation is

sufficiently justified if it is within the constitutional power of the Government; if it furthers an

important or substantial governmental interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance of that interest.” 391 U.S. at 377.

The resolution’s hours-of-operation provision will pass muster under O’Brien so long as it

imposes only “reasonable time, place or manner restrictions” on protected speech. See Clark v.

Cmty for Creative Non-Violence, 468 U.S. 288, 293, 298 (1984) (noting that the “four-factor

standard of [O’Brien] for validating a regulation of expressive conduct . . . is little, if any, different

from the standard applied to time, place, or manner restrictions”); see also Richland Bookmart, Inc.

v. Nichols, 137 F.3d 435, 440 (6th Cir. 1998) (“Richland Bookmart I”) (analyzing a similar hours-of-

operation provision “as a form of time, place and manner regulation”). To be valid, however, the

resolution’s hours-of-operation provision must (1) “serve a significant government interest,” (2) be

“narrowly tailored” to that purpose, and (3) “leave open ample alternative channels for

communication of the information.” Clark, 468 U.S. at 293.

Deja Vu contends that the hours-of-operation provision, which requires that adult cabarets

close at midnight, does not serve a substantial governmental interest because there is no evidence

that additional operating hours would lead to negative secondary effects. A similar argument was

considered by this court in Richland Bookmart I, 137 F.3d 435, in which an adult bookstore

challenged a statute regulating the operating hours of adult-oriented establishments. Like the

resolution in this case, the statute in Richland Bookmart I had been enacted for the express purpose

of minimizing the adverse secondary effects of sexually oriented businesses. The court found that

“[r]educing crime, open sex and solicitation of sex and preserving the aesthetic and commercial

character of the neighborhoods surrounding adult establishments is a substantial government interest

. . . . It is not unreasonable to believe that such regulation of hours of shops selling sex literature

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 10

would tend to deter prostitution” and other negative secondary effects. Id. at 440 (quotation marks

omitted).

For the same reasons, we reject Deja Vu’s argument that the hours-of-operation provision

does not further Union Township’s substantial interest in protecting “the public health, safety and

welfare.” Union Township’s decision to regulate the hours of operation was based upon studies of

the adverse secondary effects of adult cabarets and other sexually oriented businesses. Resolution

No. 00-22 §§ B & C. As the Supreme Court has recognized, “[t]he asserted interests of . . .

combating the harmful secondary effects associated with nude dancing are undeniably important,”

and such “regulation furthers the government interest . . . since crime and other public health and

safety problems are caused by the presence of nude dancing establishments . . . .” City of Erie, 529

U.S. at 296, 300.

Deja Vu contends, in the alternative, that the hours-of-operation provision is not narrowly

tailored and that the resulting burden on protected First Amendment expression is greater than

necessary to further Union Township’s interest in minimizing the secondary effects of adult

cabarets. In support of its position, Deja Vu points to the fact that the resolution permits adult

cabarets that serve alcohol to stay open until 2:30 a.m., while those cabarets not serving alcohol are

prohibited from being open past midnight. Resolution No. 00-22 § (L)(1) (requiring an adult cabaret

to close at the later of midnight or the closing time required under its liquor permit). Because Deja

Vu is an adult cabaret that does not sell alcoholic beverages, it can operate only until midnight. Deja

Vu claims that such disparate treatment is unjustified, and points to the decisions of numerous courts

that have concluded that sexually oriented businesses that serve alcohol actually present an

increased risk of adverse secondary effects. See, e.g., New York State Liquor Auth. v. Bellanca, 452

U.S. 714, 718 (1981) (“Common sense indicates that any form of nudity coupled with alcohol in a

public place begets undesirable behavior.”).

That the resolution results in disparate treatment, however, does not necessarily raise First

Amendment concerns. If there were no reasonable explanation for the resolution’s distinction

between the two types of cabarets, the inference could be drawn that Union Township was acting

with some invidious motive in passing the resolution. But this is not the case here, where Union

Township can point to at least two plausible justifications for the different closing times. The first

is that Union Township wanted to institute a midnight closing time for all adult cabarets, but was

prevented from doing so by conflicting state liquor laws. Second, in enacting the resolution, Union

Township relied upon research suggesting that the patrons of alcohol-free adult cabarets are often

more unruly because these cabarets are frequently patronized later in the evening by customers who

have become intoxicated at other establishments. Although Union Township could have elected to

permit all adult cabarets to close at 2:30 a.m., thereby accommodating state liquor laws and

eliminating the disparate treatment concerns, the First Amendment does not require Union Township

to make this choice. See Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989) (holding that

although “a regulation of the time, place, or manner of protected speech must be narrowly tailored[,]

. . . it need not be the least restrictive or least intrusive means of doing so”).

The dissenting opinion, however, notes that “the Township has cited no research

whatsoever” in enacting the resolution. Admittedly, Union Township did not commission its own

in-depth study, but “[t]he First Amendment does not require a city, before enacting such an

ordinance, to conduct new studies or produce evidence independent of that already generated by

other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant

to the problem that the city addresses.” City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 50-

52 (1986).

As stated in the preamble to the resolution, Union Township relied upon studies from 12

different cities in determining that enactment of the resolution would curtail unwanted secondary

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 11

effects associated with adult cabarets, including increased crime. Union Township Administrator

Kenneth Geis further attested that documented instances of intoxicated patrons engaging in “serious

criminal activity in [a] cabaret” prior to the enactment of the resolution also led Union Township

to conclude that tighter regulation of the hours of operation of adult cabarets would likely decrease

criminal activity in the cabarets and surrounding neighborhoods. This evidence can be said to

“fairly support [Union Township]’s rationale for its ordinance” and therefore meets the requirements

of the narrow-tailoring test. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-439

(2002) (rejecting a First Amendment challenge to a zoning ordinance because the adult-business

plaintiffs failed to “demonstrat[e] that the municipality’s evidence does not support its rationale or

. . . furnish[] evidence that disputes the municipality’s factual findings”).

The resolution’s hours-of-operation provision also “leave[s] open ample alternative channels

for communication” of Deja Vu’s protected expression. See Clark, 468 U.S. at 293. In Richland

Bookmart I, this court found that “[a]ccess to adult establishments [wa]s not unduly restricted” by

legislation that required adult businesses to close at midnight. 137 F.3d at 441 (upholding the

closing law because adult businesses could “still be open many hours during the week”). We

similarly conclude that the resolution’s hours-of-operation provision, which permits Deja Vu to be

open for twelve hours a day, six days a week, passes First Amendment muster. See Ctr. for Fair

Pub. Policy v. Maricopa County, 336 F.3d 1153, 1159 (9th Cir. 2003) (noting, in upholding a

restriction on the operating hours of adult businesses, that “six other circuits have had occasion to

consider similar restrictions, and all have found such restrictions to be constitutional”).

In addition to its First Amendment challenge to the hours-of-operation provision, Deja Vu

also argues that the resolution in question violates the Equal Protection Clause because it applies to

the hours of operation of sexually oriented businesses that offer live entertainment but not to those

that offer only pictorial representations. These other “sexually oriented businesses,” such as adult

bookstores and theaters, are allowed to stay open until 2:30 a.m. pursuant to a different Union

Township resolution.

An analogous argument was addressed by this court in Richland Bookmart, Inc. v. Nichols,

278 F.3d 570, 572 (6th Cir. 2002) (“Richland Bookmart II”), where legislation limited the operating

hours of adult businesses, but made an exception for those businesses offering “only live, stage adult

entertainment in a theater, adult cabaret, or dinner show type setting.” The court found that the

legislation was subject to the relaxed standard of rational-basis scrutiny “[b]ecause adult-bookstore

owners are obviously not a suspect class entitled to heightened protection,” and because an

otherwise valid hours-of-operation restriction does not “implicate any fundamental right.” Id. at

574.

Deja Vu does not seriously dispute that the resolution’s hours-of-operation provision is

subject to rational-basis review. Rather, it contends that the provision’s distinction between live and

nonlive entertainment is irrational. The fact that the resolution’s hours-of-operation provision

contains an exception for establishments offering nonlive entertainment, however, is not a cause for

concern under rational-basis review because a government “may implement its program of reform

by gradually adopting regulations that only partially ameliorate a perceived evil.” Id. at 577

(citation omitted); see also Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955)

(finding that “the reform may take one step at a time, addressing itself to the phase of the problem

which seems most acute to the legislative mind . . . and apply a remedy there, neglecting the others”

without violating the Equal Protection Clause). Because the hours-of-operation provision furthers

a substantial government interest, as discussed above, and because there is no evidence of an

impermissible motive on the part of Union Township, the resolution withstands Deja Vu’s Equal-

Protection challenge. See Richland Bookmart II, 278 F.3d at 576 (stating that “an exemption will

rarely, if ever, invalidate a statute, unless the distinction created by the exemption is the result of

invidious discrimination”).

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 12

Deja Vu further argues, however, that the resolution violates the Equal Protection Clause

because adult cabarets that do not have a liquor license are required to close at midnight, while adult

cabarets that serve alcohol are permitted to remain open until the 2:30 a.m. closing time provided

under their state liquor licenses. The dissenting opinion accepts this argument and proposes as a

solution the more speech-restrictive alternative of “requir[ing] all cabarets to cease nude dancing

at midnight.” Dissenting Op. at 21 (emphasis in original). But because there is no evidence that

Union Township enacted the resolution with an impermissible motive, and because Union Township

may act incrementally to alleviate the harmful secondary effects of adult cabarets, we reject this

Equal Protection challenge to the resolution’s hours-of-operation provision.

D. Disclosure of personal information

Deja Vu also claims that the resolution violates the First Amendment by requiring an

applicant for an adult-cabaret license to furnish the Board with certain personal information. An

applicant must provide his or her “full name, residence address and date of birth,” Resolution No.

00-22 § (D)(5)(c), and an “[a]uthorization for an investigation into the background, including any

criminal record, of the applicant and any person or entity named in the application . . . .” Id. at

(D)(5)(g). In addition, “a list of employees” must be filed by a licensee that states “the name, date

of birth, and position of each employee.” Id. at (M)(3). Deja Vu maintains that requiring the

disclosure of this information “as a prerequisite for being able to engage in First Amendment

protected activities” is unconstitutional.

The district court applied the four-part test outlined in United States v. O’Brien, 391 U.S. 367

(1968), to evaluate whether the information-disclosure provisions were permissible. After

concluding that the above-mentioned disclosure requirements were sufficiently related to the

legitimate governmental interests supporting the resolution and were not impermissibly broad, the

district court upheld the provision. The district court did, however, strike down as impermissibly

broad the portions of Resolution No. 99-15 that required the disclosure of personal information

related to every partner or shareholder of an applicant. As amended, the resolution no longer

contains these disclosure provisions and neither Union Township nor the Attorney General has

appealed the district court’s holding on this issue. The amended resolution also omits the provision

that required an applicant to disclose the residential address and social security number of each

adult-cabaret employee. Resolution No. 99-15 § (D)(5)(f). As noted above, however, the resolution

still requires a licensee to maintain a list of employees with the Clerk, including “the name, date of

birth, and position of each employee.” Resolution No. 00-22 § (M)(3).

On appeal, Deja Vu contends that the collection of personal information from an adult-

cabaret applicant does not further a substantial governmental interest. This court has declared,

however, that disclosure provisions even broader than those contained in Resolution No. 00-22 § (D)

further a substantial governmental interest in minimizing the secondary effects of sexually oriented

businesses. See Deja Vu of Nashville, Inc., 274 F.3d at 393 (holding that an ordinance requiring

applicants to “divulge such personal information as full name, height, weight, hair color, eye color,

date of birth, current residential address, and all residential addresses for the prior three years”

furthers Nashville’s “substantial governmental interest in eradicating the secondary effects of

sexually oriented businesses”). This argument by Deja Vu is therefore without merit.

Deja Vu further maintains that the personal information gathered is not narrowly tailored to

achieve Union Township’s purported interest in promoting the general health, safety, and welfare

of its citizens. In support of this argument, Deja Vu cites Schultz v. City of Cumberland, 228 F.3d

831, 852 (7th Cir. 2000), in which the Seventh Circuit invalidated a provision requiring an applicant

to disclose his or her residential address, concluding that such information “is not narrowly tailored

to the government’s interest in the time, place or manner of adult entertainment.” Deja Vu also

claims that the collection of personal information creates a substantial danger because, pursuant to

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 13

Ohio’s Public Records Act, Ohio Revised Code § 149.43(A)(1) and (B), such disclosures would be

considered to be public records. Given that public records can be reviewed by anyone, Deja Vu

contends that the personal safety of individuals applying for an adult cabaret license might be

jeopardized.

This tension between the legitimate governmental need for such information and the

reasonable concerns of adult-cabaret licensees for their personal safety was resolved by this court

in Deja Vu of Nashville, Inc., 274 F.3d at 394. The court upheld the Nashville ordinance’s required

disclosures, but only after concluding that Kallstrom v. City of Columbus, 136 F.3d 1055, 1064-65

(6th Cir. 1998), prohibits public release of the applicants’ names and current and past residential

addresses. Deja Vu of Nashville, Inc., 274 F.3d at 394. Like the plaintiffs in Deja Vu of Nashville,

Inc., the plaintiffs in the present case have presented “significant evidence that the requirement that

applicants submit their names and . . . addresses to a public forum poses serious risks to their

personal security.” Id. We therefore conclude that the resolution’s disclosure provisions are

constitutional, but that the names and other information that are gathered pursuant to those

provisions constitute protected private information that are exempted from Ohio’s Public Records

Act. See Ohio Rev. Code § 149.43; see also Deja Vu of Nashville, Inc., 274 F.3d at 395 (holding

that “all sexually oriented business license and permit applicants’ names and current and past

residential addresses constitute protected private information and are therefore exempted from

Tennessee’s Open Records Act”).

E. Civil disability

Deja Vu also claims that the civil-disability provisions included in the resolution violate the

First Amendment. The current resolution states that an application will be denied if “[t]he applicant

or any person named in the application for an initial or renewal permit to operate an adult cabaret”

has been convicted of or pled guilty to (1) a violation of Ohio Revised Code § 503.53(C) within the

past five years, or (2) a sex offense covered by Ohio Revised Code § 2907 within the past three

years. Resolution No. 00-22 § (F)(2)(e) and (f).

Ohio Revised Code § 503.53(C) prohibits certain sexual conduct from taking place within

an adult cabaret, including restrictions on the display or touching of the entertainers’ breasts,

buttocks, or genitals. Along with sexual assaults and prostitution, Ohio Revised Code

§§ 2907.02-.34 also prohibit public indecency, disseminating matter harmful to juveniles, pandering

obscenity, and compelling the acceptance of objectionable materials. Because the civil-disability

provisions implicate the behavior of “[t]he applicant or any person named in the application,” Deja

Vu claims that the ability to operate an adult cabaret is conditioned on the criminal record of not

only the applicant, but also on the record of the owners, partners, and employees of the business.

In evaluating whether the civil-disability provisions are permissible, the district court applied

the four-part test outlined in United States v. O’Brien, 391 U.S. 367 (1968). The district court

focused on (1) whether the civil disabilities actually further the asserted governmental interest, and

(2) whether the burden imposed by the provisions is greater than necessary to accomplish its

purpose. Union Township relied upon two studies that specifically focused on the adverse

secondary effects of adult cabarets. After reviewing these studies, the district court concluded that

the civil-disability provisions “further[] an important or substantial interest in the protection of

public safety.” The district court then decided that the civil-disability provisions do not “unduly

restrict the right of persons in Union Township to express an erotic message and leaves available

the alternative avenue of expression.” (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 587

(1991)).

On appeal, the defendants contend that Deja Vu does not have standing to challenge the

civil-disability provisions because “it has not yet applied for a permit and there is no allegation that

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 14

the person or entity applying for the permit is subject to either of the[] disability provisions.” To

have constitutional standing necessary to maintain a lawsuit, “(1) a plaintiff must have suffered some

actual or threatened injury due to the alleged illegal conduct of the defendant; (2) the injury must

be ‘fairly traceable’ to the challenged action; and (3) there must be a substantial likelihood that the

relief requested will redress or prevent the plaintiff’s injury.” Deja Vu of Nashville, Inc., 274 F.3d

at 389.

Deja Vu claims that it has standing on this issue because Jane Roe II, a female dancer who

performs at Deja Vu, was “convicted in April 1997 of an offense substantially equivalent to Ohio

Revised Code [§] 2907 (obscenity and various sexual offenses).” After the district court issued its

decision, however, the original resolution was amended so that the employment restrictions now

apply only to those individuals who have committed § 2907 sex offenses within the last three years.

Resolution No. 00-22 § (F)(2)(e). Jane Roe II’s 1997 conviction is thus insufficient to give Deja Vu

standing to challenge the civil-disability provisions. For the same reason, neither the 1989 obscenity

conviction of John Doe I, who has a two-percent ownership interest in Deja Vu, nor the 1992

obscenity conviction of John Doe II, who is employed by Deja Vu as a disc jockey, is sufficient to

establish Article III standing for Deja Vu.

Moreover, Union Township points out that the resolution no longer requires the disclosure

of employees in the application or provides for the revocation of a license based upon prior criminal

convictions of employees. The original resolution provided that “[a]n application for an initial

permit to operate an adult cabaret shall contain . . . [t]he full name, residence address, date of birth,

and social security number of each person employed by the adult cabaret . . . .” Resolution No. 99-

15 § (D)(5)(f). This requirement was eliminated, however, from the new resolution. Resolution 00-

22 § (D). Although, as noted above, the resolution still requires a licensee to maintain a list of

employees with the Clerk, Resolution No. 00-22 § (M)(3), employees are no longer “named in the

application for an initial or renewal permit to operate an adult cabaret.” Id. § (F)(2)(e)-(f). As a

result, the civil-disability provisions do not apply to employees. The criminal record of Jane Roe

II or any other employee is therefore insufficient to subject Deja Vu to a permit denial or revocation

based on the civil-disability provisions. Deja Vu has thus not alleged sufficient injury in fact to

establish Article III standing on this issue.

We recognize that “a defendant’s voluntary cessation of a challenged practice does not

deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v.

Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). In the present case, however, Union Township

eliminated the challenged provisions even though the district court held that there was a substantial

likelihood that the provisions were in fact valid. This is in contrast to the more typical situation

presented by Deja Vu of Nashville, Inc., in which the municipality amended its ordinance only after

certain provisions were voided by the district court, and where the municipality “repeatedly

expressed its intention to reenact those portions of the Ordinance judged unconstitutional . . . at the

earliest opportunity.” 274 F.3d at 387. Under those circumstances, this court held that the

amendments did not moot the issues on appeal. Id.

In the present case, the civil-disability provisions in question were not held unconstitutional

by the district court, and Union Township has not announced an intention to reenact those provisions

if the issue is dismissed as moot. The principle announced in Mesquite is therefore inapplicable.

See Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997) (concluding that “the City’s

announced intention to reenact the unconstitutional ordinance if the case was dismissed as moot”

was “[c]ritical to the Court’s decision” in Mesquite).

Deja Vu still contends, however, that the civil-disability provisions are unconstitutional

because “the rapid turnover of entertainers and others in this industry insures that this issue is

capable of repetition, yet evading review . . . .” See Int’l Org. of Masters, Mates & Pilots v. Brown,

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 15

498 U.S. 466, 473 (1991). This argument focuses on the transient nature of employment by adult

cabarets. But, as noted above, the resolution no longer requires the disclosure of employees in the

application or provides for the revocation of a license based upon any prior criminal convictions of

employees. The fact that Jane Roe II committed a sex crime more than three years ago is thus

irrelevant to the determination of whether Deja Vu has standing.

For all of the above reasons, we conclude that Deja Vu does not have standing to challenge

the resolution’s civil-disability provisions.

F. Health and safety inspections

After concluding that Deja Vu was likely to establish that the warrantless health-and-safety-

inspection provisions contained in §§ (L)(1) and (M)(2) of Resolution No. 99-15 violated the Fourth

Amendment, the district court enjoined Union Township from enforcing those provisions.

Resolution No. 99-15 § (L)(1) provided that “Township personnel or agents may at all reasonable

times inspect permit premises to insure continued compliance with the laws of Ohio and these

regulations.” Section (M)(2) stated that “[t]he owner, operator, or person in charge of the adult

cabaret shall allow state or local authorities, including law enforcement officers, access to any and

all parts of the premises for the purpose of making any health or safety inspection pursuant to these

regulations, and shall cooperate in any background investigation.”

Union Township amended the resolution in response to the district court’s ruling that Deja

Vu was likely to prevail in its argument that the warrantless health and safety inspections violate the

Fourth Amendment. The current resolution no longer contains those provisions, and Union

Township has not appealed the district court’s order enjoining it from performing health and safety

inspections. Ohio’s Attorney General, however, has filed a cross-appeal in the present case, asking

us to reverse the district court’s injunction on this ground. But the Attorney General’s ability to seek

appellate review of this issue, when neither Union Township nor Deja Vu has appealed from the

district court’s decision, is limited by his status as an intervenor. The controlling statute is 28 U.S.C.

§ 2403(b), which provides in pertinent part as follows:

In any action, suit, or proceeding in a court of the United States to which a State . . .

is not a party, wherein the constitutionality of any statute of that State affecting the

public interest is drawn in question, the court . . . shall permit the State to intervene

for presentation of evidence . . . and for argument on the question of

constitutionality. The State shall, subject to the applicable provisions of law, have

all the rights of a party . . . to the extent necessary for a proper presentation of the

facts and law relating to the question of constitutionality.

The Ohio Attorney General was permitted to intervene in the present suit in order to defend

the constitutionality of Ohio’s enabling statute, Ohio Revised Code §§ 503.51-59. This is the statute

that permits townships to pass local ordinances regulating the operations of adult cabarets within

their borders. In finding that the warrantless health and safety inspections provided for by the Union

Township resolution were violative of the Fourth Amendment, the district court made no ruling with

respect to the constitutionality of the Ohio enabling statute. See Int’l Paper Co. v. Inhabitants of

the Town of Jay, 887 F.2d 338, 342 (1st Cir. 1989) (“[T]he relevant authority as well as the statutory

language indicate that a local ordinance is not a statute within section 2403(b), and we are not aware

of any substantial support for [a] broader interpretation.”).

Absent from the district court’s discussion is any mention whatsoever of Ohio Revised Code

§§ 503.53 or 503.56, the sections of the enabling statute that permit townships to conduct health and

safety inspections of adult cabarets. The district court concluded that the Union Township

resolution was likely to be unconstitutional because the resolution required adult cabarets to submit

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 16

to warrantless inspections “at all reasonable times.” Resolution No. 99-15 § (L)(1). Because it

failed to define “reasonable,” the district court found that the Union Township resolution “vest[ed]

unfettered discretion in township officials.” Ohio’s enabling statute, in contrast, contains no such

language, and instead simply requires that adult cabarets “[u]ndergo periodic health and safety

inspections to determine continual compliance with applicable health and safety codes.” Although

it enjoined the enforcement of the Union Township resolution, the district court left open the

possibility that a township might enact a local resolution pursuant to the Ohio enabling statute that

was in fact constitutional.

Because neither Union Township nor Deja Vu has raised this issue on appeal, and because

the constitutionality of the Ohio enabling statute is not at issue, we decline to review the district

court’s grant of a preliminary injunction against the enforcement of the health-and-safety-inspection

provisions of now-repealed Union Township Resolution No. 99-15. See Blair v. Shanahan, 38 F.3d

1514, 1522 (9th Cir. 1994) (holding that “28 U.S.C. § 2403(b) does not allow a State standing to

participate in a motion where questions of constitutionality [of a state statute] are not among the

issues argued”); see also Ruotolo v. Ruotolo, 572 F.2d 336, 339 (1st Cir. 1978) (“There is . . . a

difference between permitting the [§ 2403 intervenor] to play an active role during the pendency of

private litigation, and permitting it to go forward with the litigation in its own right after the private

parties have composed their differences.”).

Even though we express no opinion on the constitutionality of the warrantless health and

safety inspections, the district court’s temporary injunction remains in effect, and we find nothing

in the record to indicate that Union Township will attempt to reenact the provisions already deemed

offensive to the Fourth Amendment. If the district court should abruptly change course on remand

and fail to permanently enjoin Union Township from conducting the warrantless health and safety

inspections, that determination would of course be reviewable by this court on appeal from a final

judgment below.

G. Vagueness

Deja Vu finally claims that several of the resolution’s provisions are unconstitutionally

vague. Specifically, Deja Vu complains that the resolution completely fails to define the phrases

“adequate supervision” in § (M)(4) or “reasonable cause” in § (L), and fails to adequately define the

terms “employee” in § (A)(3), “touching” in § (N)(4)(b), or “uncover” in § (N)(4)(c).

“[A]n enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned

v. City of Rockford, 408 U.S. 104, 108 (1972) (holding that Rockford’s antinoise ordinance was not

unconstitutionally vague). Vague laws are problematic because they (1) “may trap the innocent by

not providing fair warning,” (2) fail to “provide explicit standards for those who apply them,” and

(3) threaten “to inhibit the exercise of [First Amendment] freedoms.” Id. at 108-09 (quotation marks

and footnote omitted). A law must therefore “give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may act accordingly.” Id. at 108.

The Supreme Court has explained that, “[c]ondemned to the use of words, we can never

expect mathematical certainty from our language.” Id. at 110. With this point in mind, we are of

the opinion that, although the specific terms may not be defined with “meticulous specificity, . . .

it is clear what the ordinance as a whole prohibits.” Id. (citation and quotation marks omitted).

Each of the terms challenged by Deja Vu is commonly used in both legal and common parlance, and

is thus sufficiently clear so that a reasonable person can understand its meaning. We therefore

conclude that the challenged terms are not unconstitutionally vague.

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 17

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the district court’s decision to deny in

part the preliminary injunction, express NO OPINION on the district court’s decision to grant in

part the preliminary injunction in light of Union Township’s subsequent modification of the

resolution, and REMAND the case for further proceedings consistent with this opinion.

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 18

_______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_______________________________________________________

CLAY, Circuit Judge, with whom Judges DAUGHTREY and COLE join, concurring in part

and dissenting in part. I concur in Parts II.D (Disclosure of personal information), II.E (Civil

disability), II.F. (Health and safety inspections), and II.G (Vagueness) of the majority opinion. For

the reasons that follow, however, I dissent with respect to Parts II.B (Prompt judicial review) and

Part II.C (Hours of operation).

I.

RIGHT TO PROMPT JUDICIAL REVIEW

OF ADVERSE LICENSING DECISION

Deja Vu argues that Resolution No. 00-22 creates an unlawful prior restraint on its First

Amendment right to free speech because it fails to provide for prompt judicial review of an adverse

decision by the Union Township Board of Trustees (“Board” or “Township”) to refuse to grant or

renew, or to revoke, a permit to operate an adult cabaret. The majority rejects this argument,

reasoning that not only does Ohio law provide for the same type of judicial review mechanism that

the Supreme Court endorsed in City of Littleton v. Z.J. Gifts D-4, L.L.C., 124 S. Ct. 2221 (2004), but

also that the Resolution provides an additional First Amendment safeguard by requiring the issuance

of a temporary permit pending judicial review. The majority’s analysis is fundamentally misguided,

however, because Ohio law does not provide any judicial review whatsoever for a substantial

number of adverse licensing decisions.

Resolution No. 00-22 § (C) prohibits any person from engaging in, conducting, or carrying

on an adult cabaret “without a valid, current permit” issued pursuant to the Resolution’s regulations.

Resolution No. 00-22 § (A)(1) defines an “adult cabaret” to mean an establishment “in which

persons appear in a state of nudity in the performance of their duties,” and Section (N)(4) prohibits

an employee of an adult cabaret, “in the performance of his or her duties,” from touching or fondling

certain specified anatomical areas of his or her body or on any other person. The Resolution’s

preamble acknowledges that adult cabarets may engage in “activities protected by the First

Amendment.” Resolution No. 00-22, Preamble at ¶ E; see also City of Erie v. Pap’s A.M., 529 U.S.

277, 289 (2000) (holding that nude erotic dancing is constitutionally-protected, even though it “falls

only within the outer ambit of the First Amendment’s protection”); Schultz v. City of Cumberland,

228 F.3d 831, 836, 843 (7th Cir. 2000) (holding that the term “performances” in a city ordinance that

regulated “live performances which are characterized by the exposure of ‘specified anatomical

areas’ or ‘specified sexual activities’… undeniably denotes communicative content and applies

explicitly to expression, not mere conduct”). Consequently, Union Township’s licensing scheme

is a classic “prior restraint” on constitutionally protected expression because the Resolution gives

“public officials the power to deny use of a forum in advance of actual expression.” Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975).

Any system of prior restraint comes to this Court “bearing a heavy presumption against its

constitutional validity.” Id. at 558 (internal quotation marks and citations omitted). “The

presumption against prior restraints is heavier – and the degree of protection broader – than that

against limits on expression imposed by criminal penalties.” Id. at 558-59. Thus,”[t]he settled rule

is that a system of prior restraint ‘avoids constitutional infirmity only if it takes place under

procedural safeguards designed to obviate the dangers of a censorship system.’” Id. at 559 (quoting

Freedman v. Maryland, 380 U.S. 51, 58 (1965); other citations omitted). Among those required

safeguards is that the censor must assure “a prompt final judicial determination” of the propriety of

restraining the expression. Id. at 560 (following Freedman). The purpose of this safeguard is to

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 19

provide review of a censorship decision by an independent branch of government, which may be

more responsive to constitutionally protected interests in free expression. Id. at 560-61. Union

Township’s Resolution fails to provide this basic constitutional protection.

Under the Resolution, an individual desiring to operate an adult cabaret must file an

application with the Board and authorize an investigation into his or her background, “including any

criminal record, of the applicant and any person or entity named in the application, including

authorization to conduct subsequent investigations to supplement or update the information.”

Resolution No 00-22 § (D)(5)(g). Upon receipt of the application, the chief of the Union Township

police department conducts the prescribed criminal background check. Id. § (E).

After conducting a public hearing, the Board is required to approve the application for a

permit, unless, inter alia, (1) in the past three years, the applicant or any person named in the

application has been convicted of a sex offense under Ohio Revised Code Ch. 2907 (prohibiting

rape, sexual battery, unlawful sexual contact with a minor, sexual imposition, importuning,

voyeurism, and public indecency); (2) in the past five years, the applicant or any person named in

the application has been convicted of an offense under Ohio Revised Code § 503.53(C), which

prohibits adult cabaret employees from touching, fondling, massaging, or displaying their own or

any other person’s genitals, pubic area, buttocks, or (female) breasts; or (3) the applicant has

violated the Resolution’s regulations, which, among other things, make it unlawful for an adult

cabaret to employ a person under age 18 and prohibits the acts criminalized by Ohio Revised Code

§ 503.53(C). Resolution No. 00-22 §§ (F)(2)(e)-(g) and (N). The Board may revoke a permit after

a public hearing “upon discovery of a violation” of the Resolution’s regulations. Id. § (I).

The Resolution provides that an applicant denied a new permit or a renewal permit or an

individual whose permit is revoked by the Board “may appeal the action of the Board in accordance

with chapter 2506 of the Ohio Revised Code.” Resolution No. 00-22 §§ (J)(1)-(2). Similarly, the

Ohio Revised Code provides that “[a]ny person adversely affected by an order of the board denying

or revoking a permit to operate an adult cabaret may appeal from the order of the board to the court

of common pleas…in accordance with Chapter 2506[ ] of the Revised Code.” OHIO REV. CODE

ANN. § 503.57. Although Chapter 2506 of the Code authorizes the appeal of a final order,

adjudication, or decision of a municipality’s board of trustees, it does not permit the appeal of “any

order, adjudication, or decision that is issued preliminary to or as a result of a criminal proceeding.”

OHIO REV. CODE § 2506.01.

As explained below, the Resolution is structured so that the Board may refuse to grant new

permits, refuse to renew permits, or revoke current permits based not only on a final criminal

conviction for a sex offense (e.g., rape, sexual battery, sexual imposition, voyeurism, public

indecency, or touching or displaying one’s genitals or buttocks in an adult cabaret), but also on

merely the applicant’s pending criminal charges for a sex offense or the fact that the applicant is the

subject of a criminal investigation for such an offense. Consequently, many, if not most, of the

Board’s decisions to not renew or revoke permits for adult cabarets are likely to be unreviewable

because they are issued “preliminary to or as a result of a criminal proceeding.” Id.

First, new applicants for an adult cabaret permit must submit to a criminal background check

by the Union Township police, and will be denied a permit if found to have pled guilty to, or been

convicted of, an offense proscribed by Ohio Revised Code Ch. 2907 or § 503.53(C). Such

application denials are the “result of a criminal proceeding” under the most common-sense

interpretation of those words and, therefore, such denials are unreviewable. OHIO REV. CODE

§ 2506.01 (emphasis added). Similarly, current permit holders may have their permits revoked

should the Board “discover[]” a violation of the Resolution, which includes the aforementioned

criminal prohibitions. To the extent the Board revokes a permit as a consequence of a guilty plea

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 20

or a conviction for one of these offenses, this decision is unreviewable because it is “issued…as a

result of a criminal proceeding.” OHIO REV. CODE § 2506.01 (emphasis added).

Second, a license revocation is unreviewable where the Board, working with the Union

Township police department and local prosecutors, discovers or becomes aware of a suspected

criminal offense for which a conviction has not yet materialized, such as where the permit holder

has been charged with a sex offense or is merely being investigated for such an offense See, e.g.,

J.A. 114-15 (Affidavit of Union Township Administrator, Kenneth Geis, at ¶ 8) (explaining the

Township’s concerns undergirding a prior version of the Resolution, and recounting an incident at

an adult cabaret where “a dancer and a patron were charged with prostitution and related offenses”

and “[a]nother person was charged with abduction, gross sexual imposition and felonious sexual

penetration for actions which occurred inside the cabaret”). The Board’s decision not to issue or to

revoke a permit on the ground that the applicant merely has been charged with, or is suspected of,

violating the criminal laws against, for example, sexual imposition, voyeurism, public indecency,

or touching or displaying genitals, is unreviewable as a decision issued “preliminary to…a criminal

proceeding.” Id. (emphasis added). In other words, under the present wording of the Resolution,

mere allegations of certain sex offenses may lead to a nonappealable permit revocation.

Try as it might, the majority cannot evade the plain language of § 2506.01 which, as shown

above, deprives the Ohio courts of jurisdiction over numerous adverse licensing decisions. The

majority makes much of the fact that there appears to be no published Ohio authority denying

judicial review of a licensing decision that was rendered preliminary to or as a result of a criminal

proceeding. Yet, the majority fails to mention that there similarly is no published authority

permitting judicial review of such a decision. Thus, the absence of Ohio authority proves nothing.

Moreover, it is the majority, not the dissent, which is “far-reaching” in ignoring the plain

language of § 2506.01 and holding, without any citation to Ohio authority, that the Ohio legislature

enacted § 2506.01 in order to prevent criminal defendants from circumventing normal appellate

procedures by precluding them from seeking interlocutory appeals in the Ohio Court of Common

Pleas. Although the majority is correct that we must resort to every reasonable construction in order

to save a legislative act from unconstitutionality, the majority’s construction of § 2506.01 is

unreasonable because it is divorced from the clear and plain meaning of the statute’s words and

relies entirely on an invented legislative intent. Accordingly, the majority has not saved § 2506.01

through an alternative, reasonable construction. It has completely (and inappropriately) re-written

the statute. See Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir. 1991) (“[T]he general federal

rule is that courts do not rewrite statutes to create constitutionality.”)

Because the purpose and structure of the Resolution authorizes the Township to revoke or

not to renew an adult cabaret’s license to operate as a result of an impending or final criminal

proceeding, it follows that Ohio Revised Code § 2506.01 is simply not applicable and that

Resolution No. 00-22 in reality does not provide for any judicial determination of an adverse

licensing decision in many cases. For this reason, and because any system of prior restraint comes

to this Court “bearing a heavy presumption against its constitutional validity,” Southeastern

Promotions, 420 U.S. at 558 (internal quotation marks and citations omitted), I would hold that

Union Township’s licensing scheme amounts to an unconstitutional prior restraint on Deja Vu’s

protected expression.

II.

HOURS OF OPERATION PROVISION

Under the First Amendment, content-neutral restrictions on expressive conduct, such as

regulations of nude dancing or adult theaters for their adverse secondary effects, must be “narrowly

tailored to serve a significant governmental interest.” Clark v. Community for Creative Non-

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 21

Violence, 468 U.S. 288, 293 (1984); see also City of Erie, 529 U.S. at 289-96; City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 48 (1986). Such restrictions “need not be the least restrictive

or least intrusive means” of serving the Township’s legitimate content-neutral interest, but the means

chosen cannot be “substantially broader than necessary” to achieve that interest. Ward v. Rock

Against Racism, 491 U.S. 781, 798-800 (1989). By requiring non-alcohol-serving cabarets to close

by midnight, but permitting alcohol-serving cabarets to offer nude dancing until 2:30 a.m., the

Resolution’s means of regulating the undesirable combination of nude dancing and alcohol

consumption is substantially broader than necessary1because it unnecessarily forecloses a substantial

amount of constitutionally-protected expression. Accordingly, the district court abused its

discretion2 in failing to enjoin the Township’s enforcement of the hours of operation provision.

Although the Township claims that the hours of operation regulation is “an attempt to close

adult cabarets before the bars and taverns in the area close to avoid unruly and intoxicated men from

entering during the late night hours,” Defs’ Br. at 30, it fails to adequately explain the disparate

treatment accorded adult cabarets that have liquor licenses and those that do not. Because both Ohio

law and the Resolution allow adult cabarets that serve alcohol to stay open until 2:30 a.m., there is

no reason why the Resolution’s greater limitation on the hours of operation of other adult cabarets

is necessary to further the Township’s interest in minimizing the secondary effects of sexually

oriented businesses. As Deja Vu has pointed out, numerous courts have concluded that sexually

oriented businesses that serve alcohol actually present an increased risk of adverse secondary

effects. See, e.g., N.Y. State Liquor Auth. v. Bellanca, 452 U.S. 714, 718 (1981) (“Common sense

indicates that any form of nudity coupled with alcohol in a public place begets undesirable

behavior.”). The more restrictive limitation on the hours of operation of adult cabarets that do not

serve alcohol is thus unwarranted.

The Township’s purported inability to regulate the hours of alcohol-serving cabarets due to

conflicting state liquor laws3 is irrelevant to the constitutional analysis. If the Township’s true

concern is limiting the secondary effects of nude dancing after midnight, then it logically would

have required all cabarets to cease nude dancing at midnight, even though the cabarets that serve

alcohol legally could remain open later pursuant to their liquor permits (but not offer nude dancing

after midnight). Instead, the Resolution addresses the secondary effects illogically, by permitting

patrons of alcohol-serving cabarets to increase their level of intoxication after midnight while

simultaneously eliminating an alcohol-free option after midnight for people who have consumed

liquor at other local bars and taverns. Under the Resolution, patrons of bars and taverns who wish

to frequent an adult cabaret after midnight have no choice but to go to a cabaret that not only serves

liquor but which already may have a contingent of intoxicated patrons in attendance, thereby

exacerbating the purportedly volatile mix of alcohol and erotica. The Township’s willingness to

tolerate – and, indeed, encourage – this far more palpable and obvious risk of negative secondary

1

See J.A. 67 (Affidavit of Jason Garvey, general manager of the Deja Vu club in Cincinnati) (stating that “the

most popular time of the day for customers to visit are the late evening hours, and specifically between 10:00 p.m. and

3:00 a.m.”; further opining that, based on his experience, the club would not recapture the dances that the customers

would normally purchase after midnight from customers coming to the club earlier in the evening).

2

We review the grant or denial of a preliminary injunction for an abuse of discretion. Allied Sys., Ltd. v.

Teamsters Nat’l Auto. Transporters Indus. Negotiating Comm., 179 F.3d 982, 985 (6th Cir. 1999) (citation omitted).

“An abuse of discretion exists when the district court applies the incorrect legal standard, misapplies the correct legal

standard, or relies upon clearly erroneous findings of fact.” Id. at 985-86 (internal quotation marks and citation omitted).

A district court’s findings of fact are reviewed for clear error, and its conclusions of law de novo. Id. (citation omitted).

3

See Maj. Op. at 10; Resolution No. 00-22 § M(1) (“Adult cabarets shall close no later than 12:00 Midnight

or not later than the closing time required under its permit to sell alcoholic beverages, whichever is later….”).

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 22

effects demonstrates the complete mismatch between the Township’s interest in ameliorating

negative secondary effects and the means it has chosen to achieve that end.

Contrary to the majority’s mischaracterization, I do not “propose[] as a solution the more

speech-restrictive alternative” of requiring all cabarets to cease nude dancing at midnight. Maj. Op.

at 12. I only point out the patently ridiculous and irrational manner in which the Township has

attempted to address its purported goal of minimizing the secondary effects associated with the

combination of nude dancing and alcohol. Because the Township has failed to articulate any logical,

let alone empirically supported, basis for requiring non-alcohol-serving cabarets to close several

hours earlier than those that serve alcohol, my only “proposal” is that the midnight closing time for

non-alcohol-serving cabarets is unconstitutional. The implication of this proposal is that, on this

record, non-alcohol-serving cabarets should be permitted to remain open at least as late as their

alcohol-serving counterparts. Although the Township can act incrementally to alleviate negative

secondary effects, it cannot act arbitrarily, which it has done in this case.

The majority also is misguided in asserting that Union Township has “relied upon research

suggesting that the patrons of alcohol-free adult cabarets are often more unruly because these

cabarets are frequently patronized later in the evening by customers who have become intoxicated

at other establishments.” Maj. Op. at 10 (emphasis added). The Township has cited no such

research whatsoever. The only justification that Union Township has proffered on the subject of

closing times is contained in the affidavit of Union Township’s administrator, Kenneth Geis. The

Geis affidavit states, in relevant part:

The closing time of Midnight was included in an effort to insure the adult cabaret

would close before the closing time of the bars and taverns in the area. There was

concern that during the hours after Midnight there was a greater chance that

intoxicated male patrons would cause a danger to themselves and to the employees

of the adult cabarets and would cause increased criminal activity in the surrounding

neighborhood.

(J.A. 105, ¶ 12.) The affidavit does not refer to any “research” showing that (a) alcohol-free

cabarets are more unruly after midnight and (b) customers who have become intoxicated elsewhere

are responsible for this purported increase in unruliness after midnight. Instead, the affidavit

references only the speculative “concern” of some unidentified persons that there was “a greater

chance” that drunken men would leave local bars after midnight, frequent adult cabarets, and

become unruly. The Resolution’s preamble also fails to mention any research in support of these

hypotheses.4

Although the First Amendment did not require the Township, before enacting the Resolution,

to conduct new studies or produce evidence independent of that already generated by other

municipalities, it nevertheless had to rely on some “evidence” that was “reasonably believed to be

relevant to the problem” that the midnight closing time for non-alcohol-serving cabarets was

designed to address. Renton, 475 U.S. at 51-52; accord Weinberg v. City of Chicago, 310 F.3d

1029, 1038 (7th Cir. 2002) (“In the context of a First Amendment challenge under the narrowly

tailored test, the government has the burden of showing that there is evidence supporting its

4

The majority correctly notes that Geis’s affidavit documents instances of patrons engaging in criminal activity

in an adult cabaret. Maj. Op. at 10-11. The majority fails to mention, however, that the criminal activity took place at

an alcohol-serving cabaret and that the consumption of alcohol exacerbated the activity. See J.A. 104-05, at ¶ 8 (“There

were numerous liquor law violations associated with the operation of the establishment.… A police officer attempting

to effect an arrest of an intoxicated patron was seriously assaulted. The patron pled guilty to assault, resisting arrest, and

DUI.”). Thus, this empirical evidence does not support an earlier closing time for adult cabarets that do not serve

alcohol. In addition, because Geis does not indicate the time of day during which this criminal activity took place, this

empirical evidence also does not justify a midnight closing time.

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 23

proffered justification.”) (citing DiMa Corp. v. Town of Hallie, 185 F.3d 823, 829 (7th Cir. 1999)).

The Township cannot “get away with shoddy data or reasoning.” City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425, 438 (2002). Its “evidence must fairly support the municipality’s rationale

for its ordinance.” Id. Here, there is no empirical evidence – let alone, “research” – that rationally

supports a substantially earlier closing time for non-alcohol-serving cabarets. Cf. Executive Arts

Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 796-97 (6th Cir. 2004) (holding that zoning

ordinance for adult book sellers was facially invalid because it was not narrowly tailored; reasoning

that “the City has cited no basis, study or third party experience that would lead one to believe that

such a broad ordinance is needed to control undesirable blight rather than merely being an attempt

to control undesired speech”).

For similar reasons, the Resolution’s hours of operation provision runs afoul of the Equal

Protection Clause of the Fourteenth Amendment. It does not bear “a rational relationship to a

legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).

Deja Vu correctly argues that the Township seeks to regulate and possibly prevent operators of adult

cabarets that do not serve liquor from engaging in constitutionally protected conduct during certain

times, midnight to 2:30 a.m., while arbitrarily excluding operators of adult cabarets that serve liquor

from this hours of operation restriction. Such a difference in classification and application of the

resolution is irrational, and thus unconstitutional under the Equal Protection Clause, because it fails

to advance the Township’s legitimate interests in minimizing the adverse secondary effects of

sexually oriented businesses. See id. at 447-48.

For the foregoing reasons, I would hold that the Resolution’s hours of operation provision

violates the First Amendment and Equal Protection Clause of the Fourteenth Amendment.

III.

CONCLUSION

In summary, the Township’s Resolution is unconstitutional because it does not provide for

judicial review of a significant number of adverse licensing decisions. As a consequence, it

constitutes a prior restraint on freedom of expression as guaranteed under the First Amendment of

the United States Constitution. In addition, Deja Vu is entitled to a preliminary injunction as to the

Resolution’s hours of operation provision because it violates both the First Amendment and the

Equal Protection Clause of the Fourteenth Amendment. For all of the reasons set forth above, I

would affirm in part and reverse in part the district court’s order granting a preliminary injunction.

Nos. 00-4420/4529 Deja Vu of Cincinnati v. Union Township et al. Page 24

___________________________

DISSENTING IN PART

___________________________

BOYCE F. MARTIN, JR., Circuit Judge, with whom Judges DAUGHTREY and MOORE

join, dissenting in part. We join Judge Clay’s dissent concluding that the ordinance amounts to an

unconstitutional prior restraint on protected expression. The ordinance simply fails to provide for

judicial review of a Board decision to not renew or to revoke a permit for an adult cabaret when the

decision is issued “preliminary to or as a result of a criminal proceeding.” We also agree with Judge

Clay that the hours of operation provision fails the constitutional standard of being “narrowly

tailored to serve a significant governmental interest.” The ordinance therefore violates the First

Amendment. Because we would invalidate the hours of operation provision on First Amendment

grounds, we would not reach the parties’ Equal Protection challenge.