# Nightclubs, Inc.,plaintiff-Appellant v. City of Paducah

> Court of Appeals for the Sixth Circuit · February 2, 2000 · 202 F.3d 884

URL: https://www.frixlaw.com/law-library/cases/9492751

## Case

- **Full name:** NIGHTCLUBS, INC., Plaintiff-Appellant, v. CITY OF PADUCAH, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** February 2, 2000
- **Citations:** 202 F.3d 884; 2000 U.S. App. LEXIS 1245; 2000 WL 122184
- **Precedential status:** Published
- **Opinion:** Dissent by Merritt
- **Judges:** Merritt, Clay, Aldrich
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by 729, INC. v. Kenton County Fiscal Court, 515 F.3d 485 (2008).
- Negative treatments: 2
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492751

## How later opinions describe it (automated extraction)

- explaining that, in the context of a First Amendment claim, “the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits” because the “harm to the respective parties largely depend[s] on the constitutionality of the [state action]”
- noting that under Supreme Court case law, processes including judicial review with " 'potential delays of over five months are impermissible' " (citations omitted)
- noting that under Supreme Court case law, processes including judicial review with "`potential delays of over five months are impermissible'" (citations omitted)
- discussing Southeastern Promotions, 420 U.S. 546, 562, 95 S.Ct. 1239, 43 L.Ed.2d 448 and U.S. v. Thirty-Seven (37) Photographs, 402 U.S. 363, 373-74, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971)

## Opinion text

MERRITT, Circuit Judge,
dissenting.
This appeal is a First Amendment facial challenge to Paducah’s ordinance regulating the issuance of licenses for sexually-oriented businesses, including nude dancing night clubs like plaintiffs. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 , 110 S.Ct. 596 , 107 L.Ed.2d 603 (1990) is controlling. In that case, the Supreme Court set out two requirements for such licensing schemes: The scheme must provide for definite and specific time limits within *895 which a license is to be granted or denied, and an avenue for prompt judicial review must be established. The Paducah ordinance satisfies both requirements.
******
The ordinance itself is clear enough on its face. Section ll-79(a) requires an “immediate” investigation “upon receipt of an application,” and “the City shall approve or deny the issuance of a license to an applicant within ten (10) business days.” The ordinance on its face requires Paducah’s various administrative investigations and its final decision to take place “within ten (10) business days.” So I do not see any problem on the issue of delay. Even if there were some ambiguity, the City has conceded that it must finish its work and issue a decision within the 10-day period. If the City delays beyond that time, the plaintiff would be entitled immediately to an injunction.
In addition, the Court’s opinion proceeds under the incorrect assumption that challenging this city ordinance on its face is the appropriate course of action under the circumstances. It is true that our First Amendment case law has long allowed facial challenges to regulations implicating First Amendment rights, even in situations where facial challenges would otherwise be deemed inappropriate. As the Court noted in FW/PBS, “[although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decision maker and where the regulation is challenged as overbroad.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 , 110 S.Ct. 596 , 107 L.Ed.2d 603 (1990) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 , 798 and n. 15, 104 S.Ct. 2118 , 80 L.Ed.2d 772 (1984)).
But that is not the end of the matter. It is the policy of the federal courts, even in the First Amendment context, to consider any limiting constructions which the government places on its own regulations. Even if the ordinance were not perfectly clear on its face that the City has only 10 days, the City has stated that its interpretation of the ordinance is that the City has 10 days within which to complete the inspections necessary for the issuance of a license — precisely the construction which Nightclubs, Inc. concedes completely satisfies the definite and specific time limits requirement of FW/PBS.
In a similar situation a few years ago, the Supreme Court was faced with a facial invalidity challenge on First Amendment grounds in conjunction with a concession by the government enforcement agency (in that case, the City of New York) that they would interpret the ordinance in a way which would cure the ordinance of its defects. The Court noted that “the city has interpreted the guideline in such a manner as to provide additional guidance to the officials charged with its enforcement.” Ward v. Rock Against Racism, 491 U.S. 781, 795 , 109 S.Ct. 2746 , 105 L.Ed.2d 661 (1989). The Court then found that “[a]d-ministrative interpretation and implementation of a regulation are, of course, highly relevant to our analysis, for ‘[i]n evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state court or enforcement agency has proffered.’ ” Id. at 795-96 , 109 S.Ct. 2746 (quoting Hoffman Estates v. The Flipside, Inc., 455 U.S. 489, 494 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982)). Finally, the Court concluded that any defect on the face of the ordinance was “more than remedied by the city’s narrowing construction.” Id.
Rock Against Racism is not the only example of the federal courts’ reluctance to strike an ordinance, even on a First Amendment facial challenge, unless absolutely necessary. When the Supreme Court first announced its intention to allow First Amendment facial challenges, it tempered that decision by noting that “we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. *896 Oklahoma, 413 U.S. 601, 615 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973). This language in Broadrick was quoted by the Court when it held that “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” City, Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 , 104 S.Ct. 2118 , 80 L.Ed.2d 772 (1984) (finding that an ordinance could not be challenged facially when there was no proof that it would be applied any differently to others than it had been applied to plaintiffs). There is no realistic danger that this ordinance will compromise First Amendment rights of third parties when the enforcing organization, the City of Paducah, has agreed to interpret the statute in a way that comports with the First Amendment.
When we analyze the mandatory language of the ordinance itself and take into account the City’s own interpretation of its duties under the ordinance, I agree with the District Court that there is no problem here with delay. Our Court has gone out of its way to give the ordinance an unreasonable interpretation. Instead of emasculating the ordinance in order to hold it invalid, it is our responsibility to give the law a “rational and sensible construction” that will uphold its validity. American Tobacco Co. v. Patterson, 456 U.S. 63 , 102 S.Ct. 1534 , 71 L.Ed.2d 748 (1982). See Sutherland, Statutory Construction §§ 45.11 — 45.12 (5th ed.1992). Our Court has not interpreted the ordinance in accordance with the plain meaning of § ll-7(a), nor given it a sensible meaning that would uphold its validity.
‡ ‡ ‡ ‡ ❖
The Court’s opinion also erroneously concludes that the City of Paducah ordinance fails to provide for “prompt judicial review” as required by FW/PBS, Inc. v. City of Dallas and our own Sixth Circuit precedent.
Nightclubs, Inc. bears the burden of proving to the court that the ordinance does not provide an avenue for prompt judicial review. See FW/PBS, 493 U.S. at 229-30 , 110 S.Ct. 596 (explicitly declining to shift the burden of proof to the government in licensing scheme cases). The plaintiff has failed to meet that burden. Specifically, the plaintiff has failed to address the fact that this ordinance provides for prompt judicial review in any court of competent jurisdiction, including federal courts. The Court argues that the Kentucky procedures at issue provide for even more potential delay than do the Tennessee procedures this court found to require undue delay in East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir.1995). But the ordinance in that case, unlike the ordinance before us today, provided for appeal from an adverse decision by common law writ of certiorari to the state courts of Tennessee. See id. at 225 . Where judicial review is limited in that manner, certainly a facial challenge that the limiting language precludes “prompt judicial review” has more of a chance of success. But how can an ordinance which allows judicial review “in any court of competent jurisdiction,” and further urges that the matter be “promptly reviewed” by the courts be declared to be facially invalid for not providing an avenue for prompt judicial review? Certainly East Brooks Books is distinguishable on that basis.
The Court relies on FW/PBS for the proposition that “prompt judicial review” requires more than access, without interference, to the judicial system. Instead, the Court essentially argues that in each case before it a federal court must examine the swiftness of a state court’s procedures, regardless of the language in the ordinance itself, before deciding whether a prompt judicial determination on the merits of the action could potentially be reached. I do not believe that to be the intention of the Court in FW/PBS .
-The broad language of FW/PBS holds only that “the possibility of prompt judicial review” or “an avenue for prompt judicial review” is required. See FW/PBS, *897 493 U.S. at 228-29 , 110 S.Ct. 596 . Whüe some language in Justice Brennan’s concurring opinion indicating that a “prompt judicial determination” might be required has caused discussion among the Circuit courts, several Circuits have agreed that “prompt judicial review” only means access to prompt judicial review. See, e.g., Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir.1999); TK’s Video, Inc. v. Denton County, 24 F.3d 705 (5th Cir.1994); Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc); Jews for Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319 (1st Cir.1993). In addition, the Second Circuit has intimated that it would follow this line of reasoning. See, Beal v. Stern, 184 F.3d 117 (2d Cir.1999) (noting, without deciding, that prompt access to judicial review in state courts would satisfy the Freedman test). I do not believe the Court intended for a prompt judicial determination to be required in a situation where the city has provided for the broadest type of judicial review within its powers. To find otherwise is to invalidate broadly-worded city ordinances on the basis of the swiftness or slowness of that particular state’s judicial procedures, a test that could force Circuits to come to seemingly arbitrary and inconsistent decisions based on the various procedures of the different state court systems within their reach. For these reasons, I do not believe FW/PBS requires the result the Court reaches here.
Even if a prompt judicial determination is required, the plaintiff in this case does not meet the burden of proving that it could not gain such a prompt judicial determination in some court of competent jurisdiction over the matter. In fact, the plaintiff does not even allege that in the case at hand the avenues for prompt judicial review were somehow inadequate. Access to the federal courts in this case was immediate, and a decision was rendered promptly (the ordinance was enacted on August 11, 1998, and after a hearing on October 1, 1998, the District Court- for the Western District of Kentucky entered a final order granting in part and denying in part plaintiffs motion for a preliminary injunction on October 29, 1998). In addition, the spirit of the Freedman test, that undue suppression of constitutionally protected speech be avoided, is satisfied on these facts because, as the District Court pointed out in this case, the plaintiff may be granted a temporary restraining order or injunction under the Kentucky procedural rules after it initiates the judicial action. For these reasons, I believe that we should not invalidate on its face the section of the City of Paducah ordinance which explicitly states that it allows prompt judicial review in any court of competent jurisdiction for its failure to provide prompt judicial review.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492751. Public record. Not legal advice.