# Opposition Brief — Tennessee v. Dja Vu of Nashville, Inc. (No. 05-1194) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0605%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2005 ## Text effort to cure the constitutional deficiencies pointed out in the PlaintitfS* briefing. App. I[9-I6I. The second motions for preliminary injunction were litigated in a three-day evidentiary hearing between April 13 and April 15, 1999. Following the evidentiary hearing, but before the district court ruled on the motions, Metro enacted fifty-two additional changes to Ch. 6.54. App. 162- 175. The district court thereafter granted the second motions for preliminary injunction, enjoining the Ordi- nance in its entirety. Pet. App. 109a-16la. The Plaintiffs then filed a motion for leave to file a second motion for interim attorney fees, which was granted. The district court then conducted a status conference to inform the parties of its intent to convert the preliminary injunction into a permanent injunction, which it ultimately did by entering a final judgment to that effect. Pet. App. 107a- 108a. Consequently, Chapter 6.54 was permanently enjoined in its entirety. On January 18, 2000, Metro enacted an additional seven amendments to Ch. 6.54 to supposedly address the various rulings of the district court. App. 176-181. Six days after these amendments were enacted, Metro filed a Notice of Appeal in regard to the Order granting a perma- nent injunction, and the Plaintiffs then filed a Notice of Cross-Appeal. Plaintiffs also filed their second motion for “interim” attorney fees on January 21, 2000, which by that time constituted a request for fees and costs in furtherance of a final judgment. At oral argument on the initial appeal (regarding the lifting of the first injunction), a panel of the Sixth Circuit concluded from the bench that the various then-pending 6 appeals should be consolidated, and declined to hear argument at that time. On May 5, 2000, Metro filed a Motion to Vacate or Dissolve Injunction pursuant to Fed.R.Civ.P. Rule 60(b), predicated upon the seven latest amendments to the Ordinance. The district court denied that motion, finding that it was without jurisdiction to hear the matter in view of the filing of Metro’s Notice of Appeal. App. 4. On June 23, 2000, Metro then filed a Notice of Appeal in regard to that ruling (this being the fourth then-pending appeal). - Metro then filed a motion in the Sixth Circuit Court (as part of the fourth appeal) for a limited remand so as to permit the district court to rule on the Rule 60(b) motion. That motion was denied by an Order entered October 4, 2000, although that appeal was then consolidated with the three other appeals. App. 5-6. After a hearing on the four appeals, the Sixth Circuit issued an opinion on December 6, 2001, affirming in part and reversing in part, but maintaining the injunction in place. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nash- ville and Davidson County, Tennessee, 274 F.3d 377 (6th Cir. 2001), (“Deja Vu I”). Pet. App. 28a-75a. In addition, the Sixth Circuit did not fault the district court for denying the Rule 60(b) motion, noting Metro’s concession at oral argument that the filing of that appeal had been a “proce- dural misstep.” Jd. at 403. A petition by the Defendant for rehearing and suggestion for rehearing en banc was denied by the Sixth Circuit on February 5, 2002. App. 7. On January 7, 2002, Plaintiffs filed a third motion for attorney fees and costs, predicated primarily upon work expended on the various appeals. In light of the various rulings by the Sixth Circuit, Metro enacted an additional series of amendments to Ch. 6.54, with the revised codified version of the Ordinance appearing at App. 182-241. In addition, the Tennessee legislature adopted conditional revisions to T.C.A. § 27-9- 11l(e) — the procedural statute enacted after the first ruling of the district court enjoining Ch. 6.54 — which were to take effect, however, only in the event that this Court denied Metro's petition for a writ of certiorari on that issue. See, e.g., App. 22-23 (discussed in the Historical and Statutory Notes), and Pet. App. 212a. Indeed, the Defendant filed a petition for a writ of certiorari in this Court, which was denied on May 13, 2002. Metro. Govt of Nashville and Davidson County v. Deja Vu of Nashville, Inc., 535 U.S. 1073 (2002). This ruling essentially ended the “merits” portion of this litigation, with Plaintiffs being “prevailing parties” pursu- ant to 42 U.S.C. § 1988 in that Ch. 6.54 was — in its entirety — permanently enjoined from enforcement. After this Court denied the petition for a writ of certrorari, Plaintiffs filed their fourth motion for attorney fees and costs, which sought reimbursement for work primarily involved in responding to that petition and working on that fee request. Defendant never objected to the hourly rates charged by the primary attorneys representing the Plaintiffs. In addition, because one of the Plaintiffs’ attorneys was on “retainer” with his client, absolutely no claim for reim- bursement of his time was sought. App. 274-275, 7 1-5; App. 298-299, 491-5. Plaintiffs also substantiated, by affidavit, that not all time incurred had been requested for reimbursement; that billing judgment had been exercised; 8 and that counsels had coordinated with one-another to negate, or at least minimize, duplication of effort. See, e.g., App. 281-283, qf 8, 11-12; App. 278, 6; and App. 288-291, pp. 2-5. On September 30, 2002, Magistrate Judge Juliet Griffin issued her Report and Recommendation granting, in part, the first three motions for attorney fees. Pet. App. 79a-106a. Specifically finding that it was impossible to accurately apportion the time spent on various issues, since the work on the issues upon which Plaintiffs pre- vailed had to have been intertwined with work on issues upon which the Plaintiffs did not prevail, she reduced the attorney fee claim for work done on the appeal to the Sixth Circuit by two thirds. Pet. App. 104a-105a. In addition, the Magistrate disallowed a significant portion of fees for work that was either performed regarding issues upon which Plaintiffs did not prevail in the district court, or work that was not specifically characterized. Pet. App. 95a-102a. She also denied Plaintiffs’ requests for costs, with leave to refile these claims accompanied by a detailed explanation of the necessity and propriety of the expenses. Both Plaintiffs and Defendant filed objections to this Report and Recommendation. App. 300-302 and 303-315. Additionally, Plaintiffs refiled their motion for costs and expenses, seeking reimbursement of $58,565.66 in costs. The Defen- dant never filed a response to that motion. On December 5, 2002, District Court Judge Todd J. Campbell issued an Order adopting the Report and Rec- ommendation, but since Magistrate Griffin had not in- cluded a final total of the amount owed, Judge Campbell requested that the parties stipulate to that figure. Pet. App. 77a-78a. In furtherance of that Order, the parties submitted a Stipulated Notice stating that $367,080.37 9 was awarded to Shafer & Associates. P.-C.; $10,928.36 was awarded to the law firm of Michael Pleasants; and $53,090.83 was awarded to Sirkin, Pinales, Mezibov & Schwartz. App. 316-318. Magistrate Griffin later issued a second Report and Recommendation on September 16, 2003, granting Plain- tiffs’ fourth motion for attorney fees in the amount of $46,870.00. Pet. App. 26a. In addition, noting that the Defendant had failed to file any opposition to the refiled motion for costs, the Magistrate awarded Plaintiffs their expenses in the amount of $58,565.66. Pet. App. 27a. Judge Campbell approved this Report and Recommenda- tion by an Order entered on September 30, 2003. Pet. App. 18a. On the same day that Order was issued, Defendant filed what can only be described as a perfunctory objection to the second Report and Recommendation. App. 319-321. Defendant raised no objection therein to the attorney fees claimed in the proceedings before this Court. Rather, Metro objected to certain fees claimed for work done on Plaintiffs’ second and third fee petitions, and simply claimed — in a conclusory fashion — that those fees should be reduced “by at least two-thirds.” App. 320. Pursuant to a motion to amend or alter the final order on attorney fees to reflect the fact that Defendant had, indeed, timely objected to the Report and Recommendation, the district court acknowledged the objections but found nothing in them to justify changing its prior order. Pet. App. 76a. Metro appealed. During the pendency of the attorney fee award appeal, this Court rendered its ruling in City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004). 10 On February 25, 2005, which was over eight months following the ruling by this Court in Z.J. Gifts, but five years and one month after Chapter 6.54 was amended to purportedly correct the constitutional deficiencies affirmed by the Sixth Circuit in Deja Vu J, and two years and nine months from the date that the amendments to T.C.A. § 27- 9-111(e) went into effect (that being as of this Court’s denial of Metro’s petition for a writ of certiorari), Metro filed a motion to lift the permanent injunction predicated, in part, upon this Court’s ruling in Z.J. Gifts. App. 322- 325. The district court granted the motion, but declined to rule on Z.J. Gifts’ applicability to these circumstances because it found the Ordinance and statutory amendments enacted as a direct result of this litigation had cured the constitutional infirmities noted by the Sixth Circuit. App. 15. Subsequently, the Sixth Circuit conducted oral argu- ment on the fee appeal and affirmed the attorney fees and costs awards. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville and Davidson County, Tennessee, 421 F.3d 417, 418 (6th Cir. 2005) (“Deja Vu IT”). Pet. App. 1la-17a. The majority held that, even assuming the applicability of Z.J. Gifts, Plaintiffs did not lose their status as “prevailing parties.” It reached this conclusion by observing that rulings of this Court do not apply retroactively to cases that were not then open on “direct review,” and that this case was not so open at the time of the ruling in Z.J. Gifts because direct review had been completed when this Court denied certiorari. Jd. at 420-21. Moreover, the Court of Appeals held that this case did not present any “special circumstances” that would render the award of attorneys’ fees unjust under 42 U.S.C. § 1988, and that Z.J. Gifts did not invalidate the theory on which Plaintiffs had prevailed. Succinctly put, the Sixth Circuit 1] concluded that the decision in Z.J. Gifts did not “foreclose the result that was reached by the district court in this case under very different circumstances.” Jd. at 422. Accordingly, the Plaintiffs were entitled to their award of attorneys’ fees. Id. at 424. Metro then petitioned for rehearing and rehearing en banc, which was ultimately denied. Pet. App. 201a-202a. The Defendant’s Petition followed. ¢ REASONS THAT THE PETITION SHOULD BE DENIED For over seven years, Plaintiffs had the enforcement of Chapter 6.54 enjoined in its entirety, first by way of a preliminary injunction, and then as a result of the entry of a final judgment granting permanent injunctive relief. Because the challenged Ordinance impacted-upon First, Fourth, and Fourteenth Amendment rights, and because Plaintiffs sued Metro under, among other things, 42 U.S.C. § 1983, Plaintiffs, as prevailing parties in this litigation, were entitled to an award of attorneys’ fees pursuant to 42 U.S.C. § 1988. “In the absence of special circumstances a district court not merely ‘may’ but must award fees to the prevail- ing plaintiff....” Indep. Fed’n of Flight Attendants uv. Zipes, 491 U.S. 754, 761 (1989) (emphasis in original). Succinctly put, if plaintiffs “succeed on any significant _ issue in litigation which achieves some of the benefit the parties sought in bringing suit,” an award of attorney fees is warranted. Hensley v. Eckerhert, 461 U.S. 424, 433 (1983), citing Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978) (emphasis added). This occurs if the plaintiff can 12 “point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Texas State Teachers’ Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (emphasis added). The Petitioner asserts that this Court should grant review of the attorney fee award because after this Court denied a petition for a writ of certiorari on the merits of Metro's constitutional defenses, this Court issued its decision in City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004), which Metro contends abro- gated the validity of the previous judicial review ruling of the Sixth Circuit here. This, the Defendant asserts, constitutes “special circumstances” to deny an award of attorney fees pursuant to 42 U.S.C. § 1988. The Petitioner is in error. I. THIS IS NOT A CASE WHERE “SPECIAL CIRCUMSTANCES” ARE EVEN APPLICABLE. Even assuming that the ruling in Z.J. Gifts is applica- ble to the decision of the Sixth Circuit on the merits portion of this case (which is it is not, for the reasons as are set forth in Section III, infra), “special circumstances” simply do not exist here because the district court has already found that, by adoption of amendments to Chapter 6.54 and revisions to T.C.A. § 27-9-11l(e), the constitu- tional infirmities discussed by the Sixth Circuit in Deja Vu I have been corrected as a direct result of this litigation. When Metro sought to vacate the permanent injunc- tion in 2005, it argued to the district court that the injunc- tion should be lifted because: (a) it had deleted the definition of “sexually oriented” that the Sixth Circuit found to be unconstitutional; (b) changes to T.-C.A. § 27-9-11l(e) 13 had rectified the prompt judicial review problem that the Sixth Circuit had noted; and (c) the decision in Z.J. Gifts abrogated the Sixth Circuit’s judicial review holding in Deja Vu I. App. 323-324. The district court agreed with the first two contentions, but further ruled that it “need not decide whether Z..J. Gifts dictates the result in this case, since the amended ordinance guarantees prompt judicial review.” App. 15. Consequently, this is not an action where “special circumstances” are even applicable. Rather, it is a normal circumstance where a lawsuit results in a judgment enjoining the enforcement of an invalid law, and the government then, as a result of the court’s ruling, at- tempts to legislatively “fix” the problem. Certainly, pursu- ant to all existing precedent, attorney fees are warranted in such circumstances. Carried out to its logical conclusion, the Petitioner in essence would have this Court remand the attorney fee proceedings to have the district court render some type of hypothetical ruling on whether Z.J. Gifts indeed abrogates the Sixth Circuit’s judicial review ruling in Deja Vu J, when that court has already concluded in its decision vacating the permanent injunction that it need not reach the question of how Z.J. Gifts might apply to these cir- cumstances. Accordingly, even if there is a split in the circuits on what may constitute a “special circumstance” so as to warrant denial of an attorney fee award, this is not the case to review such an issue-given the lower court’s previous ruling. 14 Il. “SPECIAL CIRCUMSTANCES” DO NOT EX- IST HERE BECAUSE THERE ARE INDE- PENDENT GROUNDS JUSTIFYING THE AWARD OF ATTORNEY FEES. While Metro’s entire “special circumstances” argu- ment rests upon this Court’s ruling in Z.J. Gifts, the attorney fee award includes compensation for work having nothing to do with matters that might arguably be affected by Z.J. Gifts. The fee award, therefore, is independently justified. First, Metro apparently concedes that Chapter 6.54, as originally enacted, did not provide for appropriate prompt judicial review — even in light of Z.J. Gifts. See Petition, p. 8 n.2 (“... [T]he Metropolitan Government is seeking review of only the attorney’s fees that accrued subsequent to dissolution of the first injunction”). Second, not only did Plaintiffs prevail in the district court on the argument that the definition of “sexually oriented” was unconstitutionally vague and overbroad, but the Sixth Circuit chastised Metro for having even ap- pealed that ruling. ... [W]e are a bit confused as to why this defini- tion had to be litigated at all, as Metropolitan Nashville argues strenuously in its brief that it is superfluous. ... For whatever reason, Metropoli- tan Nashville saw fit to have us decide whether this apparently meaningless term must be re- moved from its Ordinance. We have and it must. Deja Vu I, 274 F.3d at 389. Yet, Plaintiffs were compelled to incur attorney fees regarding this issue in the district court and in the appellate court as well. 15 Third, the Plaintiffs were required to litigate an entire appeal which was clearly, and admittedly, unnecessary. In discussing Metro’s appeal of the district court’s denial of its Fed.R.Civ.P. Rule 60(b) motion, the Sixth Circuit observed that “ ... Metropolitan Nashville concedes that the district court is under no obligation to issue [an order stating that it is disposed to grant a Rule 60(b) motion], and in fact characterized this appeal as a ‘procedural misstep’ at oral argument. We agree.” Deja Vu I, 274 F.3d at 403 (emphasis and clarification added). Nevertheless, Plaintiffs had to incur a significant amount of attorney fees responding to this admitted “procedural misstep.” Fourth, the Magistrate — and by adopting the Report and Recommendation thereof, the district court as well — further noted that Plaintiffs had prevailed on standing and mootness arguments raised by the Defendant, and that it was “not insignificant for the plaintiffs that the Sixth Circuit has spoken definitively on” the issue of the privacy rights as raised by the Plaintiffs with regard to information demanded on license applications. Pet. App. 104a. And, Metro does not contend that the rulings on these matters were in any regard erroneous. Moreover, in regard to the above matters, it is, of course, relevant that the Magistrate significantly reduced the attorney fee claims contained in the first three fee motions. Pet. App. 95a-102a, 104a-105a. The Magistrate did this irrespective of the overlying observation in Hensley v. Eckerhart, 461 U.S. 424 (1983), that claims for relief which involve a common core of facts require coun- sel’s time to be devoted generally to the litigation as a whole, and “[w]here a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fees reduced simply because the district 16 court did not adopt each contention raised.” Jd. at 440 (emphasis added).’ But there are further matters which render the “special circumstances” argument here to be misplaced. This Court specifically denied a petition for a writ of certiorari filed by Metro to examine whether the judicial review provisions of Chapter 6.54 were consistent with the First Amendment. The fees associated with responding to that petition were the primary basis for the fourth motion for attorney fees, and the Magistrate even noted that Metro did “not specifically address any fees requested in the plaintiffs’ fourth motion. The plaintiffs are clearly prevailing parties in the matters involved in their fourth motion.” Pet. App. 24a, n.2. Similarly, Metro never even filed a response to the Plaintiffs’ revised motion for costs and expenses. Pet. App. 26a. Consequently, there is no basis to disturb any of those awards, irrespective of the ruling in Z.J. Gifts. In addition, it should not be lost on this Court that the constitutional attack upon Chapter 6.54 has been a virtual moving target given the fact that Metro has engaged in a never-ending array of amendments to the Ordinance as a result of the constitutional claims raised by the Plaintiffs. Prior to the last set of amendments adopted as a result of the Sixth Circuit’s ruling in Deja Vu I, Metro enacted no less than two hundred thirty-five different revisions to Chapter 6.54 after the Plaintiffs filed suit challenging its constitutionality. And this is not a circumstance where * In fact, the Sixth Circuit seems to have questioned why the Plaintiffs had not filed a cross-appeal seeking full compensation for all of the attorney time expended in the litigation. Deja Vu IJ, 421 F.3d at 423-24. 17 Metro could contend that Plaintiffs are not entitled to attorney fees in regard to the matters resulting in these changes because of this Court’s decision in Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 532 U.S. 598 (2001). Rather, here, Plaintiffs obtained a final judgment and are therefore entitled to reimbursement for all attorney fees reasonably incurred in litigating their claims. See, e.g., Hensley, 461 U.S. at 440. Finally, and probably most importantly, while Peti- tioner complains only about fees charged after the lifting of the first injunction (Petition, p. 8 n.2), none of the chal- lenged fees would have been incurred had Metro not incorrectly sought to vacate that injunction pursuant to a still-flawed judicial review process. This is particularly true given that the breadth of the subsequent litigation was set when, pursuant to Metro’s request, the district court required the Plaintiffs to raise all preliminary injunction claims in their second motions (App. 2), irre- spective of the fact that the lower court had previously declined to even rule on the Pendergrass Plaintiffs’ civil disabilities argument because of its judicial review ruling. Pet. App. 197a. For all of these reasons, the attorney fee award as issued by the district court, which significantly reduced the claims for reimbursement made by the Plaintiffs, is not the proper case to provide further direction in regard to the “special circumstances” exception, if any is even needed. : 18 Ill. THIS COURT’S DECISION IN Z.J. GIFTS DOES NOT INVALIDATE ANY THEORY ON WHICH THE RESPONDENTS PREVAILED ON THE MERITS OF THIS CASE, AND CAN- NOT THEREFORE CONSTITUTE A “SPECIAL CIRCUMSTANCE” FOR DENYING FEES. Irrespective of the other matters upon which the Respondents prevailed ‘below (discussed in Section II, supra), Metro argues that this Court’s decision in Z.d. Gifts invalidated the “judicial review” ruling of the Sixth Circuit in Deja Vu I. Petition, pp. 16-24. The Petitioner is, however, in error. In Z.J. Gifts, this Court resolved the split among the circuits with regard to whether the phrase “prompt judi- cial review” as set forth in Freedman v. Maryland, 380 U.S. 51 (1965), required a prompt judicial determination of a license denial or only prompt access to the courts. Z.J.Gifts, 541 U.S. at 781-84. In Deja Vu I, the Sixth Circuit reiterated that it was in the “determination” camp. Deja Vu I, 274 F.3d at 400 (“the licensing scheme ‘must also assure a prompt judicial decision, to minimize the deterrent effect of an interim and possible erroneous denial of a license’”), quoting Freedman, 380 U.S. at 59. The primary decision in Z.J. Gifts is in accord with this ruling, where this Court held that its previous refer- ence to “prompt judicial review” required a “prompt judicial decision.” Z.J. Gifts, 541 U.S. at 781 (emphasis added). In fact, this Court went on to note that “we reject the city’s argument to the contrary.” Jd. Consequently, the substantive ruling in Deja Vu J in regard to how the phrase “prompt judicial review” is to be operationalized is in direct accord with this Court’s holding 19 in Z.J. Gifts. More importantly, however, this Court’s decision in Z.J. Gifts does not address in the least the basis for the Sixth Circuit’s judicial review ruling in Deja Vu I; that being that Chapter 6.54 failed to satisfy Freed- man because the availability of judicial review was not guaranteed. Rather, Chapter 6.54, and Tennessee law, provided for judicial review only by way of a discretionary common law writ of certiorari. .Deja Vu I, 274 F.3d at 401. Respectfully, this Court in Z.J. Gifts never addressed the question of whether a discretionary judicial review process would satisfy Freedman. Consequently, this portion of the Sixth Circuit’s ruling is undisturbed by the ruling in Z./. Gifts. In fact, the Ninth Circuit recently addressed this distinction when it considered, post Z.J. Gifts, an ordi- nance where licensing decisions could be appealed not only by a special action, but also by a “regular lawsuit seeking an injunction against the enforcement of the ordinance after a contested license denial.... ” Dream Palace v. County of Maricopa, 384 F.3d 990, 1007 (9th Cir. 2004). The Ninth Circuit observed: The fact that a denied applicant can seek review other than through a discretionary writ distin- guishes this case from Deja Vu [I/... . In Deja Vu, the Sixth Circuit held that a licensing ordinance that required an applicant to seek judicial re- view, if at all, via a discretionary writ unconstitu- tionally failed to guarantee a final judicial adjudication on the merits. Dream Palace, 384 F.3d at 1007, n.10 (emphasis and clarification added, citation omitted). And it is therefore not insignificant that this Court denied Metro’s petition 20 regarding the discretionary judicial review process at issue here. Metro also argues that Z..J. Gifts is further applicable because Chapter 6.54 contains — it asserts similar to the Colorado ordinance analyzed by this Court — “reasonably objective, nondiscretionary criteria” upon which licensing decisions are to be made. Petition, pp. 21-22, citing Z.J. Gifts, 541 U.S. at 783. There are, however, two problems with this argument. First, under the Petitioner’s conten- tion, this Court would have to remand to the district court for it to make a determination, in an attorney fee dispute, of whether Chapter 6.54 indeed contained “reasonable objective, nondiscretionary criteria”; an issue which the district court was never required to directly address in the “merits” portion of this lawsuit.’ Second, the record below simply does not bear out Metro’s conclusory assertion. After the first preliminary injunction was lifted, adult businesses in Nashville were required to undergo the licensing process. The record demonstrates that applica- tions were denied for such subjective, discretionary rea- sons as a business having “unclean couches, restroom walls and fixtures, and shower stalls”; not eliminating “all unnecessary items on the lower level”; not eliminating storage that may attract rodents and insects; not having “tight fitting lids or covers” on all garbage containers; and having floors that were not “thoroughly cleaned through- out the facility and common area.” App. 246-258. * Cf., Hensley, 461 U.S. at 437 (“A request for attorneys’ fees should not result in a second major litigation”). * Of course, it should not be lost on this Court that none of these reasons are set forth in Chapter 6.54 as a ground to deny, suspend, or (Continued on following page) 21 In addition, that the licensing criteria under Chapter 6.54 is neither objective nor nondiscretionary is directly demonstrated by the simple fact that the licensing board had numerous “split” votes on applications. For example, a motion to approve Deja Vu’s license failed for the lack of a “second.” A motion was then made to deny the application, which received two votes “for” and two “against.” App. 266- 269, 271. Similarly, Ken’s Gold Club was granted a license on a two-to-one vote (App. 266), when it had previously been denied a license, also on a two-to-one vote. App. 262- 264. For all of these reasons, this Court’s ruling in Z.J. Gifts does not abrogate the judicial review ruling of the Sixth Circuit in Deja Vu I. And, in any event, such a determination should not be made in a collateral attorney fee proceeding.’ Consequently, the decision in Z.J. Gifts does not present “special circumstances” warranting the denial of attorney fees here. revoke a license. These actual proceedings of the Metropolitan “Sexu- ally Oriented Business Licensing Board,” however, aptly demonstrate the total unbridled discretion afforded to that board, which is permitted to deny licenses for any subjective, discretionary, reason whatsoever. At issue here is not, therefore, the “reasonably objective_nondiscretionary criteria” that this Court reviewed in Z.J. Gifts. * This is particularly true here where Metro attempts — improperly — to relitigate the correctness of the Sixth Circuit’s decision in Deja Vu | (Petition, pp. 19-20), irrespective of this Court’s denial of the Defen- dant’s petition to directly review that ruling. In addition, Metro’s arguments in this regard are erroneous because review through T.C.A. § 27-9-111(e) was still discretionary at the time the Sixth Circuit issued its opinion in Deja Vu J, notwithstanding the fact that a time limit was provided to resolve the judicial proceeding if the court decided to permit the appeal. 22 IV. THERE IS NO SUBSTANTIAL SPLIT IN THE CIRCUITS WARRANTING REVIEW BY THIS COURT. A “court’s discretion to deny a fee award to a prevail- ing plaintiff is narrow.” New York Gaslight Club, Inc. uv. Carey, 447 U.S. 54, 68 (1980) (Title VII Fees). In support of its Petition, Metro asserts that there is a split among the circuits with regard to establishing when the narrow “special circumstance” may arise so as to justify denial of a fee award. In addition, the Petitioner argues that a plain- tiff in a § 1983 claim should not be considered to be a “prevailing party” when a change in the law occurs after judgment and finality of appellate proceedings on the merits but before the conclusion of attorney fees proceed- ings.” Petition, pp. 13-16. In regard to the latter contention, Metro correctly cites Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993), for the proposition that a decision of this Court announcing a new rule of federal law is to be “given full retroactive effect in all cases still open on direct re- view....” (emphasis added). Certainly, this case was no longer on “direct review” when, on May 13, 2002, this Court denied Metro’s petition for a writ of certiorari with regard to the Sixth Circuit “merits” ruling in Deja Vu I. Nevertheless, the Petitioner would have this Court take this case to announce a new rule of law holding that Harper should apply “to a case wherein there has already been a final order on the merits but attorney’s fees are still * Petitioner’s argument assumes, of course, that Z.J. Gifts invali- dates the basis of the judicial review ruling of the Sixth Circuit in Deja Vu I, which Plaintiffs assert is not the case for the reasons set forth in Section III, supra. 23 at issue.” Petition, p. 12. However, there is no split among the circuits on this particular issue (indeed, Petitioner has not claimed one to exist), and the only appellate decision which Metro cites for this proposition, New York State Nat'l Org. for Women v. Terry, 159 F.3d 86 (2nd Cir. 1998), actually comes to the opposite conclusion. In Terry, the district court had entered a “merits” ruling, the Court of Appeals had affirmed it, and this Court had ultimately denied a petition for a writ of certio- rari. Id. at 96 n.6. These are basically the facts here. In responding to a contention that the plaintiffs in that action were no longer prevailing parties because of this Court’s decision in Bray v. Alexandria Women’s Health Clinic, 498 U.S. 1119 (1991), which was released while the Terry attorney fee award was still on appeal, the Second Circuit observed: It is true the award of attorney’s fees was on di- rect review when Bray was decided, and there- fore is subject to the retroactive application of any new rule of law announced therein... . Bray, however, did not announce a new rule of law with respect to awards of § 1988 attorney’s fees. Its new rule related to entitlement to prevail under § 1985(3). Terry, 159 F.3d at 97. More specifically, the Second Circuit stated that the intervening decision of Bray did not affect the district court’s grant of judgment for the plaintiffs there because that holding “had become final before Bray was de- cided. ...” Terry, 159 F.3d at 96. Accordingly, the appellate court concluded that the “merits” judgment in plaintiffs’ 24 favor “was not on direct review” in the later proceedings, id., and noted: Because plaintiffs were prevailing parties under § 1985(3), they were entitled to an award of at- torney’s fees under § 1988. This was not affected by the fact that, after the judgment in their favor under § 1985(3) became final,’ new law declared by the Supreme Court would have made them ineligible for a new judgment under § 1985(3). Id. (emphasis added). Accordingly, not even Terry supports adoption by this Court of the “new rule” suggested by the Petitioner.® Moreover, while the Petitioner implies that this Court has not provided direction in regard to when “special circumstances” may be found to justify the denial of an attorney fee award, that is not, however, the case. For * A judgment “becomes final” when the availability of appeal has been exhausted or has lapsed, and the time to petition for certiorari has passed. Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711 n.14 (1974), citing Linkletter v. Walker, 381 U.S. 618, 622 n.5 (1965). In Terry, the Second Circuit noted that when “a writ of certiorari is denied, the judgment below stands under the doctrine of res judicata ‘even if a new theory of law [is] thought up,’” and that “res judicata consequences are not ‘altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.’” Terry, 159 F.3d at 96 n.6, quoting Brown v. Allen, 344 U.S. 443, 543 (1953) (Jackson, J., concurring); and Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). " At best, the Second Circuit in Terry noted that the subsequent ruling in Bray “might” make the attorney fee award unjust, but found that not to be the case in the particular circumstances there. 159 F.3d at 97. Here, it is far from clear that Z.J. Gifts even invalidates the underlying basis of the judicial review decision of the Sixth Circuit in Deja Vu I. See Deja Vu I, 421 F.3d at 422 (Z.J. Gifts did not foreclose the result reached “in this case under very different circumstances”). 25 example, in Farrar v. Hobby, 506 U.S. 103 (1992), this Court concluded that although the award of nominal damages made that plaintiff a “prevailing party” eligible to receive attorney fees under 42 U.S.C. § 1988, the cir- cumstances there — a demand of Seventeen Million Dollars yet an award of only One Dollar — did not justify the entitlement to fees. In reviewing virtually the entire body of case law which this Court had issued then-to-date, this Court observed that the entitlement to fees was inexorably intertwined with the determination of the amount of fees to be awarded, which in turn generally depended upon the degree of success in litigation. Jd. at 109-116. In citing to Texas State Teachers Ass’n uv. Garland Indep. Sch. Dist., 489 U.S. 782 (1989), for the proposition that a “technical victory may be so insignificant ... as to be insufficient to support prevailing party status” (Farrar, 506 U.S. at 113, citing Garland, 489 U.S. at 792), this Court concluded that when a plaintiff recovers only nomi- nal damages because of his failure to prove an essential element of his claim for monetary relief, the “only reason- able fee is usually no fee at all.” Farrar, 506 U.S. at 115. See also id. at 118 (O’Connor, J., concurring) (noting that the “special circumstances” exception, while often articu- lated separately from a reasonableness inquiry, sometimes “is bound up with reasonableness: It serves as a short- hand way of saying that, even before calculating a loadstar or wading through all the reasonableness factors, it is clear that the reasonable fee is no fee at all”); Hewitt v. Helms, 482 U.S. 755 (1987) (The plaintiff there had ob- tained “no relief” by way of a revision of prison regula- tions which were enacted after he was released from incarceration, and was therefore not entitled to an award of attorney fees); Rhodes v. Stewart, 488 U.S. 1 (1988) 26 (Plaintiff not entitled to an award of attorney fees under 42 U.S.C. § 1988 when the case was moot be‘ore original judgment was issued because one plaintiff/inmate had died and the other had been released from custody, and the judgment therefore afforded the plaintiffs no relief). What these cases make clear is that the focus is still, and always has been, on the degree of success obtained by the Plaintiff. Here, the entire Ordinance which these Plaintiffs challenged was enjoined, first preliminarily but then permanently, for over seven years. Under all of the existing precedent of this Court, no special circumstances justify the denial of an attorney fee award in these circum- stances. Nor is there any significant split in the circuits as suggested by the Petitioner. . First, with the exception of the fees awarded in this particular case, the Petitioner does not contend that in any of the decisions which it cites for this perceived “circuit split,” the appellate courts had come to the wrong conclu- sion in.regard to whether or not special circumstances existed. Second, the mere fact that the First Circuit in Stefan v. Laurenitis, 889 F.2d 363, 371 (1st Cir. 1989), the Fourth Circuit in Doe v. Bd. of Educ. of Baltimore County, 165 F.3d 260 (4th Cir. 1998), and the Sixth Circuit in Wikol v. Birmingham Pub. Schls. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004), do not adopt, verbatim, the Ninth Circuit two-part test does not mean that they are applying stan- dards that are in any significant way different, or that the 27 decisions in the other circuits would have reached differ- ent results if they had utilized the Ninth Circuit stan- dards.” For example, in finding “special circumstances” to exist so as to preclude an award of fees for services per- formed by an attorney-parent who represented his or her child in an Individuals with Disabilities Education Act proceeding, the Fourth Circuit in Doe relied (Doe, 165 F.3d at 261-65) upon the very similar facts in the ruling of this Court in Kay v. Ehrler, 499 U.S. 432, 438 (1991) (holding that a pro se plaintiff who is an attorney is not entitled to be awarded attorney’s fees under 42 U.S.C. § 1988(b), because the statutory policy of “furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case”’’) (emphasis added). Accordingly, the Fourth Circuit, similar to the Ninth Circuit, utilizes reference to the * The Fourth Circuit correctly observes that the Ninth Circuit test does not provide any “legitimate reason for departing from the usual rule of awarding reasonable fees to prevailing plaintiffs under fee- shifting statutes.” Doe, 165 F.3d at 264 n.2. ” In Kay, this Court noted that although § 1988 was in no doubt intended to encourage litigation protecting civil rights, “it is also true that its more specific purpose was to enable potential plaintiffs to obtain the assistance of competent counsel in vindicating their rights.” 499 U.S. at 436 (emphasis added). See also S.Rep. No. 94-1011 at 2 (1976) as reprinted in 1976 U.S.C.C.A.N., 5908, 5910. (“. .. If private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it cost them to vindicate these rights in court.”). These purposes are clearly furthered by the award here. 28 congressional intent underlying the fee-shifting statutes in order to determine whether special circumstances exist." Even the approach of the Ninth Circuit, which Peti- tioner apparently contends is the correct interpretation (see Petition, p. 14 — but see n.9, supra), demonstrates that special circumstances are not present here. In Seattle Sch. Dist. No. 1 v. Washington, 633 F.2d 1338 (9th Cir. 1980), the court noted that the “congressional purpose in provid- ing attorney’s fees in civil rights cases was to eliminate financial barriers to the vindication of constitutional rights and to stimulate voluntary compliance with the law.” Id. at 1348, citing S. Rep. No. 94-1011 (1976) re- printed in 1976 U.S.C.C.A.N. 5908, 5910; H.R. Rep. No. 1558, 94th Cong., 2d Sess., (1976). Based upon this, the Ninth Circuit concluded that the district court had erred in depriving a school district of an award of attorney fees merely because it was a public-funded entity. Seattle Sch. Dist., 633 F.2d at 1348. Here, constitutional rights were clearly vindicated, and in light of the over two hundred thirty-five amendments to Chapter 6.54 which were en- acted during the course of this litigation, the threat of additional fees has certainly “stimulate[d] voluntary compliance with the law.” " Petitioner’s reliance upon Raishevich v. Foster, 247 F.3d 337 (2nd Cir. 2001), to establish a “split” among the circuits is unavailing for the reason that the particular test used by the Second Circuit there dealt specifically with the unique question of whether plaintiffs counsel’s entitlement to a contingency fee award on a damage claim would vitiate the underlying purpose of providing an attorney fee award pursuant to 42 U.S.C. § 1988. Id. at 344-46. Here, none of the attorneys were retained pursuant to a contingency fee agreement, and there was no damage award entered by the district court. 29 The phrase “special circumstances” certainly refers to unique situations which, by definition, cannot be univer- sally described in advance by any monolithic rule of law. Further elaboration by this Court is not then necessary. e CONCLUSION For the reasons as are set forth herein, Plain- tiffs/Respondents respectfully request this Honorable Court deny the petition for a writ of certiorari. Dated: May 19, 2006 BRADLEY J. SHAFER (Counsel of Record) ANDREA E. PRITZLAFF SHAFER & ASSOCIATES, P.C. 3800 Capital City Blvd., Suite 2 Lansing, Michigan 48906 517-886-6560 Counsel for Respondents MICHAEL F. PLEASANTS PLEASANTS LAW FIRM 8 South Third St., Suite 200 Memphis, Tennessee 38103 901-572-7332 H. Louis SIRKIN SIRKIN, PINALES & SCHWARTZ, LLP 105 West Fourth St., Suite 920 Cincinnati, Ohio 45202 513-721-4876 Co-Counsels for Respondents INDEX OF APPENDIX TO DEJA VU OF NASHVILLE, INC.’S RESPONSE TO PETITION FOR CERT Page VOLUME I | Deja Vu of Nashville, Inc. et al. v. Metropolitan Govt of Nashville/Davidson County, United States District Court for the Middle District of Tennessee, Case No. 3:97-1066, Order by Magis- trate Griffin regarding Case Management Hear- ing, Filed October 30, 1998 ...................00006 Sone we App. 1 Deja Vu of Nashville, Inc. et al. v. Metropolitan Govt of Nashville/Davidson County, United States District Court for the Middle District of Tennessee, Case No. 3:97-1066, Order Denying Rule 60(b) Motion, Filed May 26, 2000................... App. 4 Deja Vu of Nashville, Inc. et al. v. Metropolitan Govt of Nashville/Davidson County, United States Court of Appeals for the Sixth Circuit, Case No. 00-5881, Order denying remand, Filed COIN Ee SE alacant cco eee App. 5 Deja Vu of Nashville, Inc. et al. v. Metropolitan Govt of Nashville/Davidson County, United States Court of Appeals for the Sixth Circuit, Case Nos. 99-5071/00-5284/5288/5881, Order, Fuse FEES By OOS i sis esii cedpcacesreccioviabiveeegs veces App. 7 Deja Vu of Nashville, Inc. et al. v. Metropolitan Govt of Nashville/Davidson County, United States District Court for the Middle District of Tennessee, Case No. 3:97-1066, Memorandum te CUO, FTE BE DIO ais isis Divsmans i caadbisscanitounsi App. 8 42 United States Code Annotated §1988 — Proceed- ings in Vindication of Civil Rights ...............0...... App. 18 ul INDEX OF APPENDIX TO DEJA VU OF NASHVILLE, INC.’S RESPONSE TO PETITION FOR CERT — Continued Page 42 United States Code Annotated §1983 — Civil Action for Deprivation of Rights .......................... App. 20 Tennessee Code Annotated §27-8-101 Common Tennessee Code Annotated §27-9-111 (2002) — With Historical and Statutory Notes..................ceeee App. 22 Metropolitan Government of Nashville and David- son County Bill No. 097-796 (Original Bill), Ap- OPOVOE PIMGNE Be, LOE vas siccachioisicss erecenseiianees App. 24 Metropolitan Government of Nashville and David- son County Bill No. SO97-1022......0..... ee. App. 90 VOLUME II Metropolitan Government of Nashville and David- son County Bill No. 099-1503, Approved Febru- EY 24; BENG Go Riciwchicicos eine App. 119 Metropolitan Government of Nashville and David- son County Bill No. O99-1814................ cc eee App. 162 Metropolitan Government of Nashville and David- son County Bill No. BL99-61, Approved January By Makai es apneic baccarat ia ebhacecaseo naa App. 176 Recodified Version of Chapter 6.54...............ccceee App. 182 Defendants’ Motion to Dissolve Preliminary Injunc- tion and Request for Hearing, United States Dis- trict Court for the Middle District of Tennessee, Case No. 3:97-1066, Filed July 21, 1998............. App. 242 INDEX OF APPENDIX TO DEJA VU OF NASHVILLE, INC.’S RESPONSE TO PETITION FOR CERT - Continued Page Excerpts of Transcript of April 27, 1999 Metropoli- tan Adult Entertainment Board Hearing........... App. Metropolitan Sexually Oriented Business Licensing Board Notice of Decision on Application Regarding Deja Vu of Nashville, dated April 28, 1999.......... App. Excerpts of Transcript of May 11, 1999 Metropoli- tan Adult Entertainment Board Hearing............ App. Excerpts of Transcript of May 25, 1999 Metropoli- tan Adult Entertainment Board Hearing........... App. Metropolitan Sexually Oriented Business Licensing Board Letter Regarding Denial of Deja Vu of Nashville’s License Application, dated May 26, RUIN EE ii. Nncegh viv vind xxonsBieuak bina bnaanteskes seven iaaeekeatenes App. Affidavit of John E. Herbison-in Support of Co- Counsel’s Request for Interim Attorney Fees, ‘United States District Court for the Middle Dis- trict of Tennessee, Case No. 3:97-1066, Signed SE ans dante tovadvcancnia sion easinceaiemutsinaos App. Affidavit of H. Louis Sirkin in Support of Plaintiffs’ Supplemental Motion for Attorneys’ Fees, United States District Court for the Middle District of Tennessee, Case No. 3:97-1066, Signed June 11, I ch capiadl Satacupieckevand ipeie cbucddtrte Adesionsaxvanind nears pause App. Affidavit of Bradley J. Shafer in Support of Plain- tiffs’ Motion for Attorney Fees, United States Dis- trict Court for the Middle District of Tennessee, Case No. 3:97-1066, Signed June 14, 1999 .......... App. 271 273 276 279 INDEX OF APPENDIA TO DEJA VU OF NASHVILLE, INC.’S RESPONSE TO i PETITION FOR CERT —- Continued Page Affidavit of Michael F. Pleasants in Support of Application for Attorney’s Fees, United States District Court for the Middle District of Tennes- see, Case No. 3:97-1066, Signed June 14, 1999 ...App. 287 Defendants’ Memorandum of Law in Response to Plaintiffs’ Brief for Attorneys’ Fees, Pages 1, 19, and 20 only, United States District Court for the Middle District of Tennessee, Case No. 3:97-1066, NUD BU, TIE ciact i nsintinsincscinsadaisecnasehdenenets App. 293 Affidavit of John E. Herbison in Support of Co- Counsel’s Request for Attorney Fees, United States District Court for the Middle District of Tennessee, Case No. 3:97-1066, Signed January EAR AEA ERE Cs PR yin RE RAL ter een oAC App. 297 Plaintiffs’ Objections to Magistrate’s October 1, 2002 Report and Recommendation, Filed October De I iaccasikcataidassis cp cnisansecl ncshlededsibdabnntacndncuoniie App. 300 - Defendants’ Objection to the Report and Recom- mendation, Filed November 8, 2002................... App. 303 Stipulated Notice of the Total Attorney Fees “Awarded” by the Magistrate’s Report and Rec- ommendation, United States District Court for the Middle District of Tennessee, Case No. 3:97- 1066, Filed February 7, 20038 ................. eee App. 316 Defendants’ Objection to the Report and Recom- mendation, United States District Court for the Middle District of Tennessee, Case No. 3:97-1066, Filed September 30, 2003................cccssssesceesseseees App. 319 INDEX OF APPENDIX TO DEJA VU OF NASHVILLE, INC.’S RESPONSE TO PETITION FOR CERT — Continued Page Defendants’ Motion to Dissolve the Injunction, United States District Court for the Middle Dis- trict of Tennessee, Filed February 25, 2005........ App. 322 ci App. 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION* DEJA VU OF NASHVILLE, _ ) INC., et al. ) No. 3-97-1066 ) Consolidated with ) No. 3-97-1176 METROPOLITAN GOVERN-—)— ¥. MENT OF NASHVILLE ) AND DAVIDSON COUNTY, _ ) TENNESSEE, et al. ) ORDER On October 28, 1998, a hearing was held upon the parties’ request, at which time the following matters were addressed: 1. The deadline for the plaintiffs to respond to the defendants’ pending motion (Docket Entry No. 34) to dissolve the preliminary injunction is extended to Novem- ber 2, 1998. Such response shall be transmitted by per- sonal delivery or facsimile to defendants’ counsel by 11:00 a.m., C.S.T. (Nashville time). — 2. Any reply to such response shall be filed by the defendants, if necessary, by November 4, 1998, and a copy transmitted by facsimile to plaintiffs’ counsel. 3. The defendants announced that they agreed to extend the grace periods for the business plaintiffs and the individual plaintiffs to 120 days and 45 days, respectively, * Any typographical and/or incorrect punctuation found in the following pages were intentionally left to show accurately how the original documents appeared. App. 2 from the date of entry of any order granting the defen- dants’ pending motion to dissolve the preliminary injunc- tion for such plaintiffs to make application for a license under the amended ordinance, and that none of the ordinance provisions will be effective against the plaintiffs nor will any action be taken against the plaintiffs for their non-compliance with the ordinance during the grace period as set forth above. 4. After the entry of any order granting the defen- dants’ pending motion to dissolve the preliminary injunc- tion, the plaintiffs shall have 10 working days to file a supplemental motion for preliminary injunction, in which all issues upon which the plaintiffs relies in this case shall be raised.’ Although the parties and the Court had origi- nally, by prior scheduling orders, contemplated that the plaintiffs’ second motion(s) for preliminary injunction would be heard at the same time as the defendants’ motion to dissolve the injunction, after further consideration, it appears that it would be more efficient to delay considera- tion of any second motion for preliminary injunction until after the resolution of the defendants’ pending motion to dissolve the preliminary injunction.’ 5. The deadline for filing all dispositive motions (except motions for injunctive relief) shall be extended, and an extended deadline determined after the resolution of the defendants’ motion to dissolve the preliminary injunction, if denied, or after the plaintiffs’ anticipated ' In other words, the plaintiffs shall not piecemeal motions for preliminary injunction but shall raise all grounds in support of a motion for preliminary injunction at one time. * Specifically, if the Court were to deny the motion to dissolve, there would be no need for a second motion for preliminary injunction. App. 3 second motion for preliminary injunction, if the motion to dissolve is granted. | 6. As a result of the agreement reached among the parties, the plaintiffs’ motion to continue (Docket Entry No. 57) the hearing scheduled for November 5, 1998, was WITHDRAWN, and the Clerk is directed to terminate that motion. 7. As a result of the scheduling matters addressed above, the defendants WITHDREW their motion to grant the defendants’ motion to dissolve based on the plaintiffs’ failure to file a response or to clarify the scope (Docket Entry No. 59), and the Clerk is directed to terminate that motion as pending. 8. Plaintiffs’ counsel shall call the office of the undersigned within five (5) days of the resolution of the pending motion to dissolve the injunction’ and, if the motion is granted, within five (5) days of the resolution of the plaintiffs’ anticipated second motion for preliminary injunction. It is so ORDERED. /s/ Juliet Griffin JULIET GRIFFIN United States Magistrate Judge = * If the motion is denied, further proceedings will be scheduled, and deadlines established for filing dispositive motions. If the motion is granted, specific deadlines for the plaintiffs to file a supplemental motion for preliminary injunction and for briefing on such motion will be established. App. 4 UNITED STATES DISTRICT COURT MIDDLE DIS- TRICT OF TENNESSEE NASHVILLE DIVISION DEJA VU OF NASHVILLE, INC., et al. No. 3-97-1066 No. 3-97-1176 Judge Higgins Wis ] ] J ] THE METROPOLITAN GOVERNMENT OF NASHVILLE }j AND DAVIDSON COUNTY, TENNESSEE, et al. ORDER (Filed May 26, 2000) The defendants’ motion’ (filed May 5, 2000; -Docket Entry No. 224) to vacate or dissolve injunction under Rule 60(b) is denied because the Court is without jurisdiction in view of the filing of a notice of appeal. It is so ORDERED. /s/ Thomas A. Higgins Thomas A. Higgins United States District Judge 5-23-00 " See also the defendants’ memorandum (Docket Entry No. 225) in support of the motion and plaintiffs’ response (Docket Entry No. 226) in opposition to the motion. App. 5 No. 00-5881 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DEJA VU OF NASHVILLE, INC., a ) Tennessee corporation; MICHAEL ) RUCKER, individually; MICHAEL ) BUTLER, individually; MERONEY ) ENTERTAINMENT, INC., doing business as Ken’s Gold Club, a Tennessee corporation; THE PLEASURE PALACE, INC., a Tennessee corporation; DAWN PIERCE, individually; ELIZABETH MARTZ, individually; JERRY C. PENDERGRASS; THE 822 CORPORATION; 421 CORPORATION, ORDER ~— Plaintiffs-Appellees, (Filed Oct. 4, 2000) CAROUSEL AMUSEMENT CENTER, INC., a Tennessee corporation, Plaintiff, Vv THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE; EMMITT TURNER, Chief of Police of the Metropolitan Police Department, Defendants-Appellants Before: MARTIN, Chief Judge, WELLFORD and SUHRHEINRICH, Circuit Judges. } App. 6 The defendants appeal the district court’s order denying their motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b) They now move this court for a limited remand to the district court for consideration of the Rule 60(b) motion on the merits Alternatively, the defendants move for consolidation of this appeal with three others that are pending before the court. The plaintiffs oppose a remand but concur in the request for consolidation. The three related appeals, Case Nos..99-5701 and 00- 5284/5288, are nearly ready for submission to the court. Further, there appear to be issues within those appeals that remain for this court’s disposition. Under these circumstances, the appeals shall proceed at this time. The defendants’ motion is DENIED insofar as it seeks a remand to the district court and GRANTED insofar as it seeks consolidation of this appeal with Nos. 99-5071 and 00-5284/5288. ENTERED BY ORDER OF THE COURT /s/ Leonard Green/sr Clerk App. 7 UNITED STATES COURT OF APPEALS | FOR THE SIXTH CIRCUIT DEJA VU OF NASHVILLE, INC., A TENNESSEE CORPORATION, ET AL., Plaintiffs-Appellants, V. ) ) ) ) ) ORDER rote aes toot ie ) (Filed Feb. 5, 2002) NASHVILLE AND DAVIDSON COUNTY, ) TENNESSEE, ET AL., ) Defendants-Appellees. BEFORE: MARTIN, Chief Judge; WELLFORD and SUHRHEINRICH, Circuit Judges. The court having received two petitions for rehearing en banc, and the petitions having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petitions or rehearing have been referred to the original panel. The panel has further reviewed the petitions for rehear- ing and concludes that the issues raised in the petitions were fully considered upon the original submission and decision of the cases. Accordingly, the petitions are denied. ENTERED BY ORDER OF THE COURT /s/ Leonard Green Leonard Green, Clerk App. 8 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE DEJA VU OF NASHVILLE, ) et al. ) ‘ NO. 3:97-1066 METROPOLITAN Goan ee Caan GOVERNMENT of NASHVILLE/DAVIDSON _ ) COUNTY ORDER (Entered April 27, 2005) Pending before the Court is a Motion to Dissolve the Injunction (Docket No. 294), filed by the Metropolitan Government of Nashville and Davidson County (“Metro”). Plaintiffs have filed a Response (Docket No. 305) in oppo- sition. Metro’s Motion is GRANTED, and the injunction previously entered in this case (Docket No. 199) is dis- solved. Pursuant to request from Metro, the effective date of this Order shall be August 1, 2005, in order to allow sexually oriented businesses and entertainers sufficient time to comply with the requirements of Chapter 6.54 of the Metropolitan Code of Laws. All matters having been ruled upon, the case is dismissed and the Clerk is directed to close the file. App. 9 IT IS SO ORDERED. /s/ Todd Campbell TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE App. 10 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE DEJA VU OF NASHVILLE, ) et al. ) ‘ NO. 3:97-1066 BET AOE hd Pau ) pire Res too a GOVERNMENT of NASHVILLE/DAVIDSON _ ) COUNTY MEMORANDUM (Entered April 27, 2005) Pending before the Court is a Motion to Dissolve Injunction (Docket No. 294), filed by the Metropolitan Government of Nashville and Davidson County (“Metro”). Plaintiffs have filed a Response (Docket No. 305) in oppo- sition. For the reasons stated herein, the Motion is GRANTED. Metro seeks to dissolve an injunction issued on De- cember 23, 1999, enjoining enforcement of Chapter 6.54 of the Metropolitan Code of Laws. Docket No. 189. Metro has presented evidence that both the facts and the law have changed since entry of that injunction, justifying its dissolution. ; The Order enjoining the ordinance at issue was appealed to the Sixth Circuit Court of Appeals, which, in a published opinion, affirmed it in part and reversed it in part. Relevant to the decision on Metro’s Motion to Dis- solve Injunction, the Sixth Circuit held: “Upon remand, the district court should maintain the injunction until App. 11 Metropolitan Nashville satisfies it that the constitutional problems with the Ordinance’s definition of ‘sexually oriented’ and its judicial review procedures have been corrected.” Deja Vu of Nashville, Inc. v. Metropolitan Gov't of Nashville and Davidson County, Tennessee, 274 F.3d 377, 403 (6th Cir. 2901).’ The issue before this Court is whether Metro has made a satisfactory showing in that regard. After remand from the Sixth Circuit, this case was reassigned to the undersigned District Judge by Order (Docket No. 251) entered on May 16, 2002. DEFINITION OF “SEXUALLY ORIENTED” With regard to the definition of “sexually oriented” found to be unconstitutional, Metro has presented evi- dence that the ordinance has been amended to eliminate the potential overbreath found to be unconstitutional by the Sixth Circuit. The current ordinance defines “sexually oriented” as follows: “Sexually oriented” when used to modify film, movie, motion picture, videocassette, slides, or other photographic reproductions shall mean a film, movie, motion picture, videocassette, slides, or other photographic reproductions that regu- larly depicts material which is distinguished or characterized by an emphasis on matter depict- ing or describing “specified sexual activities or specified anatomical areas” offered for observa- tion by the patron(s) on the premises of a sexu- ally oriented business. ’ This dictate from the Sixth Circuit makes Plaintiffs’ Rule 60<—————— argument meritless. App. 12 Metro Code of Laws, § 6.54.010(Y) (attached to Docket No. 294 as Ex. A). The Sixth Circuit found the former definition of “sexually oriented” to be overbroad because it could apply to a range of expression that does not cause the secondary effects that the ordinance was aimed to prevent. Deja Vu, 274 F.3d at 388. A law is overbroad under the First Amendment if it reaches a substantial number of imper- missible applications relative to the law’s legitimate sweep. Id. at 387. This Court finds that the amended definition is not overbroad and complies with the First Amendment. It no longer applies to just any film, movie, motion picture, etc., but rather only to those which “regularly depict material which is distinguished or characterized by an emphasis on matter depicting or describing ‘specified sexual activities or specified anatomical areas’ offered tor observation by the patron(s) on the premises of a sexually oriented business.” The Court further finds that the amended definition has eliminated the potential for reaching a substantial number oi impermissible applications by its restrictions that the subject media be “on the premises of a sexually oriented business,” and “regularly depict” material with “an emphasis on” the specified sexual activities or speci- fied anatomical areas defined elsewhere in the ordinance. App. 13 For these reasons, Metro has satisfied the Court that the constitutional problems with the ordinance’s definition of “sexually oriented” have been corrected.” \ JUDICIAL REVIEW PROCEDURES As for the sufficiency of its judicial review procedures, Metro argues both that the judicial review procedures have been changed and that the law as to what is required has changed. The Sixth Circuit found that the judicial review procedures in effect at the time of the injunction provided no assurance of prompt judicial review because there was no affirmative evidence showing that every writ of certio- rari would be granted. Deja Vu, 274 F.3d at 402. The court held that because the ordinance’s judicial review proce- dures did not guarantee prompt judicial review as re- quired by the First Amendment, those procedures were facially’ unconstitutional. Jd. at 402-403. The judicial review procedures provided by Tennessee law have since changed. The relevant statute now provides: If the final decision of a board or commission re- vokes, suspends, or denies a license or permit that is required prior to engaging in conduct protected by the First Amendment to the Constitution of the United States, and either the petitioner or the * The Sixth Circuit also noted that the phrase “sexually oriented” is “never used but in conjunction with some other word that has its own definition” and is “apparently meaningless.” Deja Vu, 274 F.3d at 389. Thus, “sexually oriented” can “easily be severed” in any event. /d. * Plaintiffs’ assertion that the constitutionality of the ordinance herein was decided on a case-by-case basis is wrong. App. 14 respondent requests an expedited hearing, the court shall immediately grant the writ of certio- rari, and shall hear the matter and issue its dect- ston within forty (40) days of the court granting the writ of certiorari. Tenn. Code Ann. § 27-9-111(e) (emphasis added). The Court finds that this amended, mandatory’ language does guarantee prompt judicial review as re- quired by the First Amendment. The statute is sufficient “affirmative evidence” that every writ of certiorari con- cerning protected speech will be granted. Accordingly, Metro has satisfied this Court that the constitutional problems with its judicial review procedures have been corrected.’ Even if the amended ordinance did not specifically guarantee prompt judicial review, which it does, Metro — argues that it is sufficient to withstand constitutional muster under the recent case of City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C., 124 S.Ct. 2219 (2004). In that case, the Supreme Court held that Colorado’s ordinary judicial review procedures suffice to protect First Amend- ment judicial review rights, so long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly. Jd. at 2224. Specifically, the Court stated “we have no reason to doubt the willingness of Colorado’s judges to exercise these powers wisely so as to avoid serious threats of delay-induced First * Plaintiffs’ contention that the statute is discretionary has no merit, * It is also clear that the statute was amended specifically to comply with the Sixth Circuit’s opinion in this case, as reflected in 2002 Pub. Acts, c. 615, § 2 regarding the effective date. App. 15 Amendment harm. We presume that courts are aware of the constitutional need to avoid ‘undue delay result[ing] in the unconstitutional suppression of protected speech.’” Jd. at 2225.° In addition, the Supreme Court held that where the regulation simply conditions the operation of an adult business on compliance with neutral and nondiscretionary criteria’ and does not seek to censor content, an adult business is not entitled to an unusually speedy judicial decision in the first place. Jd. at 2226. The Court need not decide whether Z.J. Gifts dictates the result in this case, since the amended ordinance guarantees prompt judicial review. For these reasons, the Court is satisfied that the previously-determined unconstitutional deficiencies in Metro’s judicial review procedures in this case have been corrected, and that the amended statute provides the required First Amendment protections. Metro’s Motion to Dissolve the Injunction is GRANTED. FURTHER LITIGATION Plaintiffs argue that dissolution of the injunction should not end this litigation because the injunction hearing was never consolidated with a trial on the merits. * “Colorado’s rules provide for a flexible system of review in which judges can reach a decision promptly in the ordinary case, while using their judicial power to prevent significant harm to First Amendment interests where circumstances require.” Z.J. Gifts at 2226. Metro argues the same presumption should be afforded Tennessee's rules and courts. * The Court does not use the words “objective” or “subjective” as suggested by the Plaintiffs. App. 16 Judge Higgins’ Order of December 23, 1999, provides otherwise. That Order states: In this action, as stated on the record at the hearing on December 21, 1999, it appears that no further or additional relief is sought beyond that which has been granted by the preliminary in- junction. The preliminary injunction heretofore issued is herewith made a permanent injunction. The entry of this order shall constitute the final judgment in this action. Docket No.199. In addition, as Metro points out, Magistrate Griffin specifically ordered the Plaintiffs to file (within ten days of any order granting Defendants’ prior Motion to Dissolve Preliminary Injunction) a supplemental motion for pre- liminary injunction, “in which all issues upon which the plaintiffs relies (sic) in this case shall be raised. In other words, the plaintiffs shall not piecemeal motions for preliminary injunction but shall raise all grounds in support of a motion for preliminary injunction at one time.” Docket No. 61. That “supplemental” motion (Docket No. 83) was granted by Judge Higgins (Docket No. 188), appealed to the Sixth Circuit (Docket No. 208), affirmed in part and reversed in part (274 F.3d. 377), and is the subject of the pending Motion to Dissolve Injunction. All issues upon which the PlaintiffS rely in this case should App. 17 have been raised.* Indeed, the Sixth Circuit found that Plaintiffs raised “all of their constitutional challenges to the Ordinance.” Deja Vu, 274 F.3d at 386.” TODD J. CAMPBELL * The Court cannot and will not revisit other substantive rulings previously made herein. * Plaintiffs also argue there is a pending Motion for Review of the Magistrate Judge’s Order. The only pending motion in this case is this Motion to Dissolve the Injunction. All other motions were termed when the judgment was made final (Docket No. 199) and appealed. To the extent Plaintiffs seek to raise new matters arising after the Sixth Circuit’s opinion, or related to new ordinance provisions, they should file a new case. Plaintiffs also argue that various state constitutional issues are pending. The Court disagrees for the reasons stated above, but in any event declines supplemental jurisdiction over any state law claims. 28 U.S.C. § 1367(c). App. 18 42 U.S.C. § 1988. Proceedings in vindication of civil rights (a) Applicability of statutory and common law The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindi- cation, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of. punishment on the party found guilty. (b) Attorney’s fees In any action or proceeding to enforce a provision of sections 1981, 198la, 1982, 1983, 1985, and 1986 of this title, title [IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than App. 19 the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction. (c) Expert fees In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discre- tion, may include expert fees as part of the attorney’s fee. App. 20 42 U.S.C. § 1985. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be sub- jected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitu- tion and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. App. 21 T.C.A. § 27-8-101. Constitutional basis. — The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy. [Code 1858, § 3123 (deriv. Const. 1834, art. 6, § 10); Shan., § 4853; Code 1932, § 8989; T.C.A. (orig. ed.), § 27-801.] App. 22 T.C.A. § 27-9-111 (2002). Hearings; findings (a) At the expiration of ninety (90) days from the filing of the transcript, the cause shall stand for trial, and shall be heard and determined at the earliest practical date, as one having precedence over other litigation, except suits involving state, county or municipal revenue. (b) The hearing shall be on the proof introduced before the board or commission contained in the transcript, and upon such other evidence as either party may desire to introduce. (c) The judge shall reduce all findings of fact and conclu- sions of law to writing and make them parts of the record. (d) In making such findings of fact, the judge shall weigh the evidence and determine the facts by the preponder- ance of the proof. (e) If the final decision of a board or commission revokes, suspends, or denies a license or permit that is required prior to engaging in conduct protected by the First Amendment to the Constitution of the United States, and either the petitioner or the respondent requests an expe- dited hearing, the court shall immediately grant the writ of certiorari, and shall hear the matter and issue its decision within forty (40) days of the court granting the writ of certiorari. When an expedited hearing is requested, the board or commission shall forward the transcript described in § 27-9-109 within seven (7) days of the grant of the writ of certiorari. 1951 Pub.Acts, c. 261, § 1; 1987 Pub.Acts, c. 28, §§ 1 to 3; 1998 Pub.Acts, c. 794, § 1, eff. April 23, 1998. Amended by 2002 Pub.Acts, c. 615, § 1. Formerly 1932 Code, § 9014; § 27-911. App. 23 HISTORICAL AND STATUTORY NOTES 2002 Pub.Acts, c. 615, § 1, deleted the first sentence of subsec. (e), which formerly read: “If the final decision of a board or commission revokes, suspends, or denies a license or permit that is required prior to engaging in conduct protected by the First Amendment to the Constitution if the United States, and either the petitioner or the respon- dent requests an expedited hearing, the court shall hear the matter and issue its decision within forty (40) days of the court granting the writ of certiorari” and replaced it with the language “If the final decision of a board or commission revokes, suspends, or denies a license or permit that is required prior to engaging in conduct protected by the First Amendment to the Constitution of the United States, and either the petitioner or the respon- dent requests an expedited hearing, the court shall imme- diately grant the writ of certiorari, and shall hear the matter and issue its decision within forty (40) days of the court granting the writ of certiorari.” 2002 Pub.Acts, c. 615, § 2, provides: “This act shall not take effect until such time as the United States Supreme Court has denied the petition for a writ of certiorari filed by the Metropolitan Government of Nashville and Davidson County in the case of Deja vu, Inc. v Metropolitan Government, 274 F.3d 377 (6th Cir. 2001), or if the United States Supreme Court grants a writ of certiorari, this act shall not take effect until such time as the United States Supreme Court affirms the Sixth Cir- cuit’s opinion on the issue of ‘prompt judicial review.’ If the United States Supreme Court reverses the Sixth Circuit’s opinion on ‘prompt judicial review’ this act shall never take effect.” App. 24 BILL NO. 097-796 AN ORDINANCE AMENDING TITLE 6 OF THE METROPOLITAN CODE OF LAWS BY ADDING A NEW CHAPTER 6.54, LICENSING AND REGULATION OF ADULT ENTERTAIN- MENT AND ADULT BUSINESSES. WHEREAS, the Metropolitan County Council of the Metropolitan Government of Nashville and Davidson County (“Metropolitan Council”) may, pursuant to Section 2.01(40) of its Charter and the general laws of the State of Tennessee, enact regulatory ordinances protecting and promoting the general welfare,-health, and safety of its citizens; and, WHEREAS, the Metropolitan Council has previously enacted Sections 17.12.080(29), 17.60.020(C)(1), and 17.64.270 of the MCL which regulate the location of sexually oriented businesses; and, ~- WHEREAS, since the adoption of _the above- referenced ordinances, the Metropolitan Council has received and considered reports and recommendations from employees, citizens, other local governments, and other reputable sources and has determined that loca- tional criteria alone do not adequately protect the health and general welfare of the people of Metropolitan Nash- ville Davidson County, and, WHEREAS, the Metropolitan Council has determined that permitting and/or licensing is a legitimate and rea- sonable means of accountability to ensure that operators of adult entertainment establishments comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places for illegal sexual activity or solicitation; and, App. 25 WHEREAS, it is not the Intent of this ordinance to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance which addresses the secondary effects of adult entertain- ment establishments; and, WHEREAS, it is not the intent of the Metropolitan Council to condone or legitimize the distribution of obscene materials, and the Metropolitan Council recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages state and federal enforcement officials to enforce state and federal obscenity statutes against any such illegal activities in Metropolitan Davidson County; and, WHEREAS, the locational requirements of the Adult Entertainment Zoning Ordinance are unaffected by the following amendment. WHEREAS, the Metropolitan Council desires to amend the Code of Laws of the Metropolitan Government of Nashville and Davidson County (“MCL”) to regulate adult entertainment establishments in order to promote and secure the general welfare, health, and safety of the citizens of Metropolitan Nashville and Davidson County. NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY. SECTION 1. Purpose and Findings. (A.) PURPOSE. It is the purpose of this ordinance to regulate adult entertainment establishments to promote the health, safety, morals, and general welfare of the citizens of Metropolitan Nashville Davidson County. The provisions of this ordinance have neither the purpose nor App. 26 effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials or entertainment. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distribu- tors and exhibitors of sexually oriented materials or entertainment to their intended market. (B.) FINDINGS. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and reports made available to the Metropolitan Council, and on findings incorporated in the DLS d/b/a Diamonds and Lace Showbar v. The City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); DLS, Inc d/b/a Diamonds and Lace Showbar v. City of Chattanooga, 914 F.Supp. 193 (E.D. Tenn. 1995); DLS, Inc d/b/a Diamonds and Lace Showbar v City of Chattanooga, 894 F.Supp. 1140 (E.D. Tenn. 1995); City of Renton v. Playtime Thea- ters. Inc., 475 U.S. 41 (1986); Coleman A. Young v. Ameri- can Mini-Theaters, Inc., 427 U.S. 50 (1976); and studies and judicial opinions concerning the adverse secondary effects of adult uses on communities such as Austin, Amarillo, and Beaumont, Texas; Phoenix and Tucson, Arizona; Minnesota {see Report of the Attorney General’s Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989)], Seattle, Washington; [see Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978)]; and Houston, Texas; [see SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir. 1988); as well as newspaper articles [see Peep Shows Role Unregulated (Tennessean, April 8, 1991)] reports from the Police De- partment and reports from the Department of Health of App. 27 the Metropolitan Government of Nashville and Davidson County, the Metropolitan Council finds: 1. Unlawful and unhealthy activities that are occur- ring within adult entertainment establishments are presently uncontrolled by the operators of these estab- lishments and, there is presently no mechanism to control the unhealthy and unlawful activities that are occurring within these establishments or to make the owners and operators of these establishments responsible for the activities that occur on their premises. 2. Certain employees of adult entertainment estab- lishments in Davidson County engage in a higher inci- dence of certain types sexually oriented criminal activity, unhealthy and illegal sexual contact, and other unlawful activities at these businesses than employees of other establishments 3 Sexual acts, including homosexual and heterosex- ual masturbatory acts and oral and anal sex acts, are a regular occurrence at adult entertainment establishments in Davidson County, especially those establishments where there are private or semi-private booths or cubicles for viewing films, videos, or live sex shows. é 4. Offering and providing such space, areas and rooms where such activities take place creates conditions that generate prostitution and other crimes, as well as unhealthy conditions. 5. Persons frequent certain adult theaters, adult bookstores, and adult video stores for the purpose of providing sex within the premises of such adult theaters, adult bookstores, and adult video stores and patrons frequent certain adult theaters, adult bookstores, adult App. 28 nightclubs, and adult video stores for the purpose of procuring prostitutes. 6. At least fifty communicable diseases may be spread by activities currently occurring in adult enter- tainment establishments, including, but not limited to, syphilis, gonorrhea, human immuno-deficiency virus infection (HIV), genital herpes, hepatitis B, hepatitis Non A, hepatitis Non B, amebiasis, and shigella infections. 7. Since 1981 and to the present, there have been an increasing cumulative number of reported cases of ac- quired immuno-deficiency syndrome (AIDS) caused by the human immuno-deficiency virus (HIV) in the United States — 600 cases in 1982 8,555 in 1985 68,959 in 1994 2,200 in 1983 336,522 between 61,614 in 1995 4,600 in 1984 1986 and 1992 and 36,693 cases 77,641 in 1993 in 1996; and in Tennessee — 3 cases in 1982 345 in 1987 2,380 in 1992 7 in 1983 666 in 1988 1,308 in 1993 28 in 1984 1,012 in 1989 818 in 1994 70 in 1985 1,389 in 1990 1,018 in 1995 161 in 1986 1,820 in 1991 and 965 cases in 1996; and in Davidson County — 187 cases in 1992 207 in 1995 308 in 1993 153 in 1996. 177 in 1994 8. As of February 28, 1993, there have been 2,521 reported cases of AIDS in Tennessee, with 1,502 deaths being reported. Of those 2,521 cases, 2,340 were males and 181 were females. App. 29 9. The number of cases of early syphilis in the United States has risen with 33,613 cases reported in 1982 32,698 in 1983 28,607 in 1984- 27,131 in 1985 27,883 in 1986 35,147 in 1987 40,117 in 1988 44,540 in 1989 = 45,200 in 1990 10. The number of cases of early syphilis in Tennes- see has grown with 1,150 in 1982 1,013 in 1983 1,014 in 1984 1,168 in 1985 1,160 in 1986 1,330 in 1987 2,766 in 1989 1,989 in 1990 2,011 in 1991 2,786 in 1992 2572 in 1993 2312 in 1994 1,910 in 1988 2,035 in 1995 and 1,807 in 1996 and in Davidson County syphilis cases reported annually have risen with 101 cases in 1982 - 104 in 1983 130 in 1988 149 in 1993 86 in 1984 211 in 1989 100 in 1994 52 in 1985 515 in 1990 194 in 1995 87 in 1986 437 in 1991 292 in 1996 173 in 1987 388 in 1992 11. The number of cases of gonorrhea in the United States reported annually remains at a high level, with 960,633 civilian cases reported in 1982 — 780,905 in 1987 719,536 in 1988 733,151 in 1989 and 611,932 through November 1990; 900,435 in 1983 878,556 in 1984 911,419 in 1985 900,868 in 1986 App. 30 and in Tennessee — 32,444 in 1982 30,896 in 1983 30,749 in 1984 32,110 in 1985 26,455 in 1986 23,740 in 1987 19,336 in 1988 19,557 in 1989 56,763 through December 1992 14,285 in 1993 15,197 in 1994 13,894 in 1995 11,710 in 1996 12. The number of cases of gonorrhea reported annu- ally in Davidson County remains at a high level, with - 5,325 in 1982 4,744 in 1983 5,294 in 1984 5,202 in 1985 4,731 in 1986 3,846 in 1987 3,815 in 1988 3,409 in 1989 2,966 in 1990 2,701 in 1991 2,390 in 1992 2,388 in 1993 3110 in 1994 2,622 in 1995 2,033 in 1996. 13. The Surgeon-General of the United States in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn. 14. According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. 15. According to the best scientific evidence, numer- ous other diseases and infestations, including chlamydia, pelvic inflammatory disease, chancroid, herpes, hepatitis B, lympho-granuloma venereum, granuloma inguinale, genital warts, trichomomasis, scabies, pediculosis, amebi- asis, giardiasis, and others are transmitted by sexual acts. 16. Conditions in some adult entertainment estab- lishments are unsanitary and unhealthy, in part, because App. 31 the activities conducted there are unhealthy, and in part, because the owners and operators of the facilities fail to regulate the unhealthy and unsanitary activities and fail to maintain the facilities in a sanitary and healthy condi- tion. 17. The United States Center for Disease Control has issued universal precautions, including housekeeping and disinfection guidelines, for the prevention of transmis- sion of the HIV virus and other diseases. These guidelines should be followed anytime there is the potential for exposure to blood and other body fluids. 18. Staff members of the police and health depart- ments have observed semen, blood, fecal matter and urine within the public areas of adult entertainment establish- ments in Davidson County. These unhealthy conditions are worse in areas within adult entertainment establish- ments where persons view sexually oriented films, sexu- ally oriented movies, adult videos or witness sexually oriented live entertainment. 19 Permitting entertainers to be in close contact with patrons initiates the exchange of money which may reasonably be expected to serve as an opportunity to solicit for and an inducement to agree to unprotected and/or illegal sexual activity, including prostitution and thus poses a threat to both groups by promoting the spread of communicable diseases, and encouraging crime. 20. When the previously described activities charac- teristic of adult entertainment establishments are present within Davidson County, Tennessee, other activities which are illegal or unhealthy tend to accompany them, concen- trate around them and be aggravated by them. Such other activities include, but are not limited to, prostitution, App. 32 pandering, solicitation for prostitution, lewd and lascivious behavior, exposing minors to harmful materials and possession, distribution and transportation of obscene materials. 21. The findings noted in paragraphs 1 through 20 raise substantial governmental concerns. 22. Adult entertainment establishments should be reasonably regulated in order to protect those substantial governmental concerns. 23. A reasonable licensure procedure is an appropri- ate and effective mechanism to place the burden of that reasonable regulation on the owners and operators of adult entertainment establishments. Further, such a licensing procedure will place a heretofore nonexistent incentive on the operator to see that the adult entertain- ment establishment is run in a manner that is consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of Davidson County, Tennessee. It is appropriate to require reasonable assur- ances that the licensee is the actual operator of the adult entertainment establishments, fully in possession and control of the premises and the activities occurring therein. 24. Removal of doors on booths — wherein patrons view sexually oriented movies, sexually oriented films, adult videos, or sexually oriented live entertainment — and requiring sufficient lighting in premises with booths advances the substantial governmental interest of curbing the illegal and unsanitary sexual activity occurring at adult entertainment establishments App. 33 25 The prevention of sexual contact between patrons and employees at adult entertainment establishments is unrelated to the suppression of free expression, but serves to address the concerns raised in the findings contained herein. 26. Prohibiting dancers and patrons from engaging in sexual fondling and caressing in adult theaters or adult cabarets would reduce the opportunity for prostitution and thus should deter prostitution and other crimes of a sexual nature. 27. The disclosure of certain information by those persons ultimately responsible for the day-to-day opera- tion and maintenance of an adult entertainment estab- lishment is substantially related to the significant governmental interest of preventing the spread of sexu- ally-transmitted diseases and reducing or eliminating the criminal activity associated with adult entertainment establishments. 28 It is desirable in the prevention of the spread of communicable diseases and in the investigation of crimi- nal activity, to obtain a limited amount of information regarding certain operators and employees who either engage in the conduct which this ordinance is designed to prevent or are likely to be witnesses to such activity. 29. Asubstantial rational relationship between adult entertainment establishments and sexually related crimes establishes a compelling justification for barring those persons who have committed crimes from the management of such businesses. 30 The fact that an applicant for an adult use license has been convicted of a sexually-related crime leads to a App. 34 rational inference that the applicant is more likely to engage in conduct in contravention of this ordinance. 31. The barring of such individuals from manage- ment of adult uses for a period of years serves as a deter- rent to and prevents the conduct which leads to the transmission of sexually transmitted diseases and to the promotion of that criminal activity associated with adult uses. 32. The general welfare, health, and safety of the citizens of Metropolitan Nashville and Davidson County will be promoted by the enactment of this ordinance. SECTION 2: Title 6 of the Code of Laws of The Metropolitan Government of Nashville and Davidson County is amended by adding a new Chapter 6.54. 6.54 Licensing and Regulation of Adult Business: 6.54.010 Definitions. A. Definitions For the purpose of this chapter, the words and phrases used herein shall have the following mean- ings, unless otherwise clearly indicated by the con- text: 1. Adult entertainment means the regular pres- entation, for a fee or incidentally to another ser- vice, of material or exhibitions distinguished or characterized by an emphasis on matter depict- ing, describing, or relating to “specified sexual activities” or “specified anatomical areas” as de- fined below for observation by patrons therein. 2. Adult entertainment establishment means any commercial establishment —- including but App. 35 not limited to: “adult bookstore”, “adult video store”, “adult theater”, “adult nightclub”, sexual encounter center, massage parlor, rap parlor, lin- gerie modeling, or sauna — which for a fee or in- cidentally to another service, regularly presents material or exhibitions distinguished or character- ized by an emphasis on matters depicting, describ- ing, or relating to “specified sexual activities” or “specified anatomical areas” as defined below for observation by patrons therein. Adult entertain- ment establishment further means any commercial establishment to which the public patrons or mem- bers are invited or admitted and which are so physically arranged as to provide booths, cubi- cles, rooms, compartments or stalls separate from the common areas of the premises for the purpose of viewing sexually oriented motion pic- tures, sexually-oriented movies, sexually oriented films, adult videos, or wherein an entertainer pro- vides sexually oriented entertainment to a member of the public, a patron or a member. (a) Adult bookstore means an establish- ment having any of its stock and trade in books, magazines, other periodicals, or any other items which are distinguished or characterized by their emphasis on matter depicting, describing or re- lating to “specified sexual activities” or “specified anatomical areas” as defined below for observa- tion of the patrons therein, or in conjunction therewith has facilities for the presentation of sexually oriented entertainment, including but not limited to sexually oriented movies, adult videos, sexual y oriented films, or sexually ori- ented live entertainment, for observation by pa- trons therein. App. 36 (b) Sexually oriented means any exhibition of any motion pictures, films, videos, or live per- formance, display or dance of any type, removal of articles of clothing or appearing unclothed, pantomime, modeling, or any other personal ser- vice offered customers which has a significant or substantial portion of such performance any ac- tual or simulated performance of “specified sex- ual activities” or exhibition and viewing of “specified anatomical areas”. (c) Adult theater means an enclosed build- ing regularly used for presenting films, motion pictures, video cassettes, slides, or other photo- graphic reproductions or other material depict- ing, describing or relating to “specified sexual activities” or “specified anatomical areas,” as de- fined below, for observation by patrons therein. (d) Adult nightclub means a theater, con- cert hall, auditorium, nightclub, bar, restaurant, or similar commercial establishment which regu- larly features live performances that are charac- terized by any actual or simulated performance of “specified sexual activities” or the exposure of “specified anatomical areas,” as defined below. (e) Adult video store means a commercial establishment having any stock in “adult videos” — as defined below — which are rented or sold and presented for a fee or incidentally to another ser- vice; or in conjunction therewith, regularly pre- sents on the premises sexually oriented motion pictures or sexually oriented films, “adult videos”, or sexually oriented live exhibitions which are dis- tinguished or characterized by an emphasis on matter depicting, describing; or relating to “speci- fied sexual activities” or “specified anatomical App. 37 areas” as defined below for observation by pa- trons therein. (f) Adult videos means a video, CD, laser disk, or similar medium with a cover that depicts “specified sexual activities” or “specified ana- tomical areas” or a transparent or less than opaque cover through which “specified sexual ac- tivities” or “specified anatomical areas” can be viewed. 3. Aggravated rape as defined in The Tennessee Code Annotated § 39-15-502. 4. Aggravated sexual battery as defined in The Tennessee Code Annotated § 39-15-504. 5 Employee means any and all persons, includ- ing independent contractors, who work in or at or render any services directly related to the opera- tion of an adult entertainment establishment. 6 Entertainer means any person who provides live entertainment within an adult entertain- ment establishment as defined in this section, whether or not a fee is charged or accepted for entertainment and whether or not entertainment is provided as an employee or an independent contractor. 7. Indecent exposure as defined in The Tennes- see Code Annotated § 39-15-511. 8. Location means a single site for which only one use and occupancy permit would be required 9 The Metropolitan Area — General services dis- trict of the Metropolitan Government of Nash- ville and Davidson County App. 38 10. The Metropolitan Council means the legis- lative body of The Metropolitan Government of Nashville and Davidson County, Tennessee 11. Obscenity as defined in The Tennessee Code Annotated § 39-17-901(10) through (14). 12. Operator means any person, partnership, or corporation operating, conducting or maintaining an adult entertainment establishment. 13. Prostitution as defined in The Tennessee Code Annotated § 39-13-512 14. Patronizing prostitution as defined in The Tennessee Code Annotated § 39-15-13-512. 15 Promoting prostitution as defined in The Tennessee Code Annotated § 39-15-13-512. 16 Rape as defined in The Tennessee Code An- notated § 39-15-503. 17. Rape of a child as defined in The Tennessee Code Annotated § 39-15-522 18. Sexual battery as defined in The Tennessee Code Annotated § 39-15-505. 19. Sexual exploitation of a minor as defined in The Tennessee Code Annotated § 39-17-1003, § 39-17-1004, and § 39-17-1005. 20. Specified sexual activities mean (a) Human genitals in a state of sexual stimulation or arousal; (b) Acts of human masturbation, sexual in- tercourse or sodomy; - App. 39 (c) Fondling or erotic touching of human genitals, pubic region, buttock or female breasts. 21. Specified anatomical areas mean: (a) Less than completely and opaquely cov- ered: (i) Human genitals, pubic region, (11) Buttocks; (iii) Female breasts below a point im- mediately above the top of. the areola; and (b) Human male genitals in a discernibly turgid state, even if completely opaquely covered 22. Statutory rape as defined to The Tennessee Code Annotated § 39-15-506. 6.54.020 Adult Entertainment Licensing Board A. Establishment An adult entertainment licensing board is hereby cre- ated and designated the metropolitan adult enter- tainment licensing board (herein “board”). B. Membership — Terms 1. The board shall consist of five members, who shall have been residents of the metropolitan area for not less than one year, and who shall continue to be eligible so long as they reside in the metropolitan a.ea, to be appointed by the mayor and confirmed by a majority vote of the metropolitan council. App. 40 2. At least one of the five members shall be an attorney, and one of the five members shall be a health provider. 3. Of the five members first appointed, two shall be appointed for a term of two years, and two shall be appointed for a term of three years, and one shall be appointed for a term of four years. Thereafter, each member shall be appointed for a term of four years, and shall serve until his/her successor is appointed. Any vacancy other than the expiration of terms shall be filled for the un-expired term C. Election of officers — Term The board shall organize by the election of a chair and a vice-chair, who shall serve for a period of one year or until a successor shall have been chosen. D. Meetings — Quorum required — Minutes and tran- script 1. The board shall hold two regular meetings each month at a time fixed by the board, and may hold such special meetings as may be necessary 2. The attendance of at least a majority of the members of the board, not including unfilled posi- tions, shall be required to constitute a quorum for the purpose of transacting business. 3. Minutes shall be kept of the meetings in permanent form and a record shall be kept of the ac- tion of the board with respect to every application for a license and/or a permit. The concurring vote of a majority of the members present and voting shall be necessary for the granting, revoking, suspending or any other action involving licenses or permits. 4 No transcript of the proceedings had before the board shall be in any form other than narrative App. 41 unless the board shall have been requested to provide for an exact copy of the testimony by an interested party at least twenty-four hours prior to a board meeting. The cost of an exact copy shall be borne by the person requesting the same. E. Powers and duties. 1. The board shall have jurisdiction over the li- censing, regulating and controlling of all adult enter- tainment establishments as provided herein, located in the metropolitan area. 2 The board may promulgate such bylaws, rules and regulations not inconsistent with state law, the metropolitan charter, or any ordinance, as it deems appropriate for the conducting of its business. 3. The board has the authority to subpoena wit- nesses to testify before the board F. Inspectors — Authority. The board is empowered to employ suitable person(s) as inspectors which inspectors shall not hold any ser- vice status. The board shall prescribe the duties of such inspectors so as to enforce the applicable provi- sions of this title. G Procedures for Hearings This section shall apply to all hearings by the board including but not limited to hearings for revocation suspension, or denial of a license/permit. 1 Upon receiving a written request for a hear- ing, the board shall send the party reqtesting the hearing a notice stating the time and place of the hearing and the right to be represented by counsel. App. 42 2. At the hearing, the party requesting the hearing shall appear on his/her own behalf or be rep- resented by counsel. All witnesses shall be sworn. The chair shall allow the party requesting the hearing to present witnesses on his/her own behalf and to cross- examine all witnesses testifying against him/her. 3. All decisions of the board shall be in writing, setting forth the findings of the board, and shall be signed by the chair or vice-chair Any decisions of the board to deny a renewal, suspend, or revoke a li- cense/permit shall not take effect earlier than ten (10) days after the date the decision was rendered to allow the effected party adequate time to seek judicial re- view. 4. Minutes shall be kept of all proceedings be- fore the board in permanent form and a record shall be kept of the actions of the board with respect to all hearings. 5 Arecord (which may consist of a tape or simi- lar electronic recording) shall be made of all oral pro- ceedings. The record must be maintained by the board for a period of ninety days Such record or any part thereof shall be transcribed at the request of any party at such party’s expense. 6. Any party desiring a court reporter to be pre- sent at the hearing must arrange for the court re- porter to be present. 6.54.030 License Required. A Except as provided in subsection F below, from and after the effective date of this ordinance, no adult entertainment establishment shall be operated or maintained within the metropolitan area without first obtaining a license to operate issued by the board. App. 43 B. Any person, partnership, or corporation which desires to operate more than one (1) adult entertain- ment establishment must have a license for each es- tablishment C. Only one license nay be issued for each adult en- tertainment establishment location. D. No license or interest in a license may be trans- ferred to any person, partnership or corporation. E. It shall be unlawful for any entertainer or opera- tor to work in or about, or to perform any service di- rectly related to the operation of any unlicensed adult entertainment establishment. It shall be unlawful for any employee to knowingly work in or about, or to knowingly perform any service directly related to the operation of any unlicensed adult entertainment es- tablishment while adult entertainment is being pre- sented. F All existing adult entertainment establishments at the time of the passage of this ordinance must submit an application for a license within one hun- dred twenty (120) days of the effective date of this or- dinance. If a license is not applied for within said one- hundred-twenty day period, then such existing adult entertainment establishment shall cease operations. 6.54.040 Application for license. A. Application — 1. Any person, partnership, corporation or any other entity desiring to secure a license shal] make application to the board. The applicant shall file the original application with six copies. The original ap- plication shall be dated by the board and held in the files of the board. A copy of the application shall be App. 44 distributed promptly by the board to: the police de- partment, the department of codes administration, the health department, the fire department, and to the applicant. 2 Application forms shall be available at the of- fice of the board 3 The application form shall include all the in- formation indicated in subsection 6.54.040(5)(a) through (1). 4. The following persons must obtain a license: any partner of a partnership who will participate in the day to day operation of the business, any officer or director of a corporate applicant, and any stockholder holding a majority controlling percentage of the stock of a corporate applicant and who will participate in the day to day operation of the business. 5. The applicant shall furnish the following in- formation under oath: (a) Name and address, including all aliases (business address is sufficient); (b) Proof that the individual is at least eighteen (18) years of age; (c) All residential addresses of the applicant for the past three (3) years (for the purpose of facill- tating the police investigation into the applicants criminal background), (d) The business, occupation or employment of the applicant for five (5) years immediately pre- ceding the date of the application (for the pur- pose of facilitating the police investigation into the applicants criminal background); App. 45 (e) Whether the applicant previously operated in this or any other county, city or state under an adult entertainment establishment license or similar business license. Whether the applicant has ever had such a license revoked or sus- pended, the reason therefore, and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation; (f) All violations, convictions, or any or pleas of nolo contendere to any crime of rape, aggravated rape, aggravated sexual assault, statutory rape, rape of a child, sexual exploitation of a minor, in- decent exposure, prostitution, patronizing prosti- tution, promoting prostitution, obscenity, or other similar crimes of a sexual] nature, or any crime involving moral turpitude. (g) All citations issued and sustained by a court within the past two years for violations of any provisions of the metropolitan zoning code appli- cable to adult entertainment establishments, in- cluding but not limited to sections 17.12.080(29), 17.60.020, 17.64.270. (h) Fingerprints and two (2) portrait photo- graphs at least two (2) inches by two (2) inches of the applicant. (for the purpose of facilitating the police investigation into the applicants cmminal background) (i) The address of the adult entertainment es- tablishment to be operated by the applicant. (j) Ifthe applicant is a corporation the applica- tion shall specify the name of the corporation the date and state of incorporation the name and ad- dress of the registered agent and the name and App. 46 address of all officers and directors of the corpo- ration, and any stockholder holding a majority controlling percentage of the stock of a corporate applicant and who will be involved in the day to day operation of the business. (k) If the applicant is a partnership, joint ven- ture, or any other type of business the applica- tion shall specify the name and address of all persons who will be involved in the day to day operation of the business (1) A statement by the applicant that he/she is familiar with the provisions of this ordinance and is in compliance with them. 6 If the applicant intends to have booth, stalls, cubicles, or rooms on the premises for the purpose of viewing sexually oriented movies, sexually onented films, or adult videos, or sexually oriented live exhibi- tions, then along with the application, the applicant shall provide the board with his/her application a dia- gram, drawn to scale, of the premises including but not limited to the location and layout of all booths, stalls, cubicles, or rooms and the location of the clerk/managers stand or counter. Though the diagram shall be drawn to scale, it does not have to be profes- sionally prepared B. Inspections. 1. The police department, codes department, fire department, and health department shall, upon receipt of a copy of the application, inspect the prem- ises to insure that the establishment complies with the metropolitan code including the applicable zoning ordinances, fire code statutes, ordinances and regula- tions, and the health code statutes, ordinances and regulations. App. 47 2. If a diagram is required to be submitted un- der 6.54.040(A\(6), then the code inspector shall con- firm the layout of the booths, stalls, cubicles, or rooms complies with the submitted diagram and the re- quirements set out in 6.54.050(A) 3. The police department, codes department, fire department, and health department shall com- plete their respective inspections and shall communi- cate the results of their respective inspections to the board in writing within thirty (30) days of receipt of the application. The writing shall end with one of the following statements: The location at complies with the relevant and applicable code sections and applicable rules and regulations of the board. The location at does not comply with the relevant and applicable code sections or does not comply with the relevant and applicable rules and regulations of the board. It is in violation of the following provi- sions Section numbers of code violations 4. All ongoing businesses shall be inspected in accordance with 6.54.040(B)(1) and (2) regardless of whether the business already has a valid use and oc- cupancy permit. 5. If the building/structure has a valid use and occupancy permit, the applicant shall provide the board with a copy of the valid use and occupancy permit which shall be made part of the file. C. Board Action on Inspection Results. 1. Within twenty (20) days of receiving the results of the investigation conducted by the police App. 48 department, codes department, fire department, and health department the board will meet and determine if the applicant is in compliance with the applicable statutes, ordinances, and regulations. If the board de- termines that the applicant is in compliance with the applicable statutes, ordinances, and regulations, in- cluding but not limited to the zoning code, and the applicant has not committed any of the crimes listed in 6.54.040(A)(5)(f), is at least eighteen years of age, and has not given any false or misleading information on the application or omitted any material facts from the application then the board shall grant the license. 2. Any applicant convicted of or who pleaded nolo contendere to any crime of rape, aggravated rape, aggravated sexual assault, statutory rape, rape of a child, sexual exploitation of a minor, indecent expo- sure, prostitution, patronizing prostitution, promoting prostitution, obscenity, or other similar crime of a sexual nature, or any crime involving moral turpitude in any jurisdiction shall be ineligible to receive a permit for the time period described below. Such de- nial and the reason for the denial shall be mailed to the applicant within ten (10) days of receiving the re- sults of the investigation. The applicant may re-apply to the board once the time period has expired (a) If the conviction or plea was for a misde- meanor violation then the applicant shall be in- eligible to receive a permit for two (2) years from the date of the conviction plea, or release from confinement imposed for the conviction which- ever is later. (b) Ifthe conviction or plea was for a felony vio- lation then the applicant shall be ineligible to re- ceive a permit for five (5) years from the date of the conviction, plea, or release from confinement imposed for the conviction whichever is later. App. 49 (c) The time is computed from the date of the application to the date of the conviction, plea, or release from confinement based on the convic- tion. 3. If it is determined by the board, using the application and the investigation information, that the applicant has violated the provisions of the zoning code applicable to adult entertainment within the past two years, then the applicant is ineligible for a license for one (1) year from the date the citation was sustained. A violation of the zoning code shall be evi- denced by a citation which has been sustained by any court in the metropolitan area. 4. If a diagram is required under 6.54.040(A)(6) and based on the code investigation, the board deter- mines that the actual structure does not comply with 6 54 050(A) or the submitted diagram, then the appli- cant is not in complhance with this code section and the license shall be denied until the applicant is in compliance. 5 If-in the course of the investigation it is dis- covered any false or misleading statement or informa- tion was given on the application, or material facts were omitted from the application, the board shall deny the application. (a) The applicant shall be ineligible to re- ceive a permit for one (1) year from the date of the application which contained the misleading statements or omissions unless the omission or misleading statement referred to the age of the applicant or any of the crimes listed in 6.54.040(A)(5)(f). (b) If the misleading statements or omis- sions referred to the age of the applicant, then the applicant shall not be eligible to receive a license App. 50 until all persons who will participate in the day to day operation of the business are eighteen or until one year has passed from the date of the application which contained the misleading statements or omissions whichever is longer. (c) If the misleading statements or omis- sions referred to any of the crimes listed in 6 54.040(A)(5)(f), then the applicant shall not be eligible to receive a permit until the time period described in 6 54.040(C)(2)(a) through (c) has ex- pired or until one year has passed from the date of the application which contained the mislead- ing statements or omissions whichever is longer 6. Within twenty (20) days of receiving the re- sults of the investigation conducted by the police de- partment, codes department, fire department, and health department, if the board shall determine that the applicant is not in compliance with the applicable statutes, ordinances, and regulations, the applicant shall be notified in writing that the license is denied for failing to comply with applicable statutes, ordi- nances, and regulations This notice shall specify the violation If the applicant can come into compliance as described m subsections 6.54.040(D) the denial shall not take effect The notice shall also specify that the applicant may request a hearing within ten (10) days as described in 6.54.040(E), cure the violation within fifteen (15) days and request re-inspection or request an extension of time as described in 6.54.040(D.). 7 The board has the discretion to hold any and all applications for further investigation if: (a) the ini- tial investigation indicates a need for additional in- formation, or (b) the initial investigation requires investigation into out of state records; or (c) verifica- tion of out of state employment is needed. Such addi- tional investigation shall not exceed an additional App. 51 thirty (30) days, from the end of the initial twenty (20) days specified in 6.54.040(C)(6), unless otherwise agreed to by the applicant. Upon conclusion of such additional investigation, the board shall advise the applicant in writing whether the application is granted or denied in accordance with this section. 8. Whenever an application is denied or held for further investigation, the board shall advise the ap- plicant in writing of the reasons for such action. 9. Failure or_refusal of the applicant to give any information relevant to the investigation of the appli- cation, or his or her refusal or failure to appear at any reasonable time and place for examination under oath regarding said application or his or her refusal to submit to or cooperate with any investigation re- quired by this ordinance, shall constitute an admis- sion by the applicant that he/she is ineligible for such license and shall be grounds for denial thereof by the board. This in no way requires the applicant to agree to additional time extensions beyond that allowed in subsection 6.54.040(C)(7). 10. No license shall be issued unless the police department has investigated the applicants criminal history by entering the information included on the application into the appropriate computer database or otherwise obtaining the information. The results of that investigation shall be filed in writing (this may be the print-out given by the computer database) with the board no later than thirty (30) days after the date application was received by the police department. This thirty (30) day period is the same thirty (30) days described in 6.54.040(B)(3). D. Extensions of Time for the Applicant 1. If the license is denied under subsection 6.54.040(C)(6), the applicant may re-institute his/her App. 52 application by notifying the board in writing that he/she has come into compliance and requests re- inspection (a) The applicant has fifteen (15) days from the mailing of the notice, given in 6 54.040(C)(6) to cure the violation and notify the board. If the violations have been corrected within the fifteen (15) day period, the owner has the responsibility to contact the board. (b) The board has five days to notify the appropriate inspector that the applicant believes he/she has come into compliance (c) Upon notification by the board the ap- propriate inspector shall return to the location _ for re-inspection and shall submit another writ- ten report as_ indicated in_ subsection ~ 6.54.040(B)(3). The inspector has ten (10) days from the date he/she was notified by the board to re-inspect the premises and inform the board as to whether the applicant has come into compli- ance. (d) Based on the report of the inspector(s), the board shall determine if the applicant has come into compliance and if so the board shall is- sue the license at the next regular meeting. (e) Ifthe owner fails to either contact the ap- propriate inspector to report that the code viola- tions have been corrected or if the code violations have not been corrected then the application is de- nied in accordance wi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0605%3A3. Public record. Not legal advice.