The primary issue in this case is whether the government may suspend the permit of a business engaged in activity protected by the First Amendment as a sanction when the business violates a regulation. We conclude suspension of the license is not an improper prior restraint, is constitutionally permissible, and the government is not limited to imposing a fine. We also reject the argument that the suspension process utilized here violated the appellant's constitutional guarantee of due process.
Donald Krontz holds a police permit to operate a nude entertainment establishment, Déjà Vu, on Midway Drive in San Diego. The City of San Diego and the San Diego Chief of Police (together the City) enforce permit regulations.
Among the operating requirements applicable to a nude entertainment permit are that the permittee (1) "shall not permit or allow any person who is nude to be within six feet of any patron" (six-foot rule) (Municipal Code, § 33.3609, subd. (c), italics omitted) and "shall not allow any adult entertainer to intentionally touch any patron, or any patron to intentionally touch any adult entertainer, whether or not the adult entertainer is nude" (the no-touch rule) (Municipal Code, § 33.3609(d), italics omitted).
Between April 2001 and January 2002, the police conducted a number of undercover inspections at Déjà Vu. They observed at least 35 violations of the no-touch or six-foot rule involving a number of different entertainers. Krontz was sent written warning letters notifying him of the violations on May 2, August 16 and October 11, 2001. On October 26, Krontz's attorney and representative met with San Diego police vice officers to discuss the violations. They were informed of three additional inspections and further violations, some of which occurred on the center stage and could not have been overlooked by Déjà Vu's management. Krontz was sent written notice of these violations and a summary of the October 26 meeting.
After additional violations involving multiple entertainers were found during inspections in early January 2002, the City notified Krontz his nude entertainment permit would be suspended for 10 days based on the numerous and on-going violations. The City also informed him of his right to an administrative hearing. (Municipal Code, § 33.0501.) Krontz requested a hearing.
The hearing officer concluded all but three of the violations were proven and that "[t]he preponderance of evidence suggests [Déjà Vu] made every effort to appear to be taking the no touch and six foot rules seriously but at the same time in daily practice tolerated violations on a regular basis unless the [Police] Department got involved and notified it of violations." The hearing officer, based on mitigating circumstances, reduced the suspension to seven days.
Krontz challenged the suspension by timely filing a petition for writ of administrative mandamus in superior court. The court denied the petition and Krontz appealed.
Krontz contends suspending his permit amounts to an invalid prior restraint, is an unconstitutional time, place, and manner restriction or is a constitutionally impermissible injunction violating the First Amendment of the United States Constitution.
Nude or semi-nude entertainment is expressive activity that falls within
A city can enact time, place, and manner regulations on an adult entertainment business based on the secondary effects of nude entertainment such as increased crime in a neighborhood. (See Erie, supra, 529 U.S. 277, 296, 120 S.Ct. 1382; Hansen, To Strip or not to Strip: The Demise of Nude Dancing and Erotic Expression Through Cumulative Regulations, 35 Val.U. L.Rev. 561 (2001).) Thus, the courts have upheld restrictions on the location of nude entertainment establishments through zoning laws (see City of National City v. Wiener (1992) 3 Cal.4th 832, 835, 12 Cal.Rptr.2d 701, 838 P.2d 223), licensing requirements (Genusa v. City of Peoria (7th Cir.1980) 619 F.2d 1203, 1213; Schultz v. City of Cumberland (7th Cir. 2000) 228 F.3d 831, 853; Essence, Inc. v. City of Fed. Heights (10th Cir.2002) 285 F.3d 1272, 1289-1290), and restrictions such as the no-touch and six-foot rules enacted in San Diego (see Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.4th 1, 22-23, 81 Cal.Rptr.2d 6; Hang On, Inc. v. City of Arlington (5th Cir.1995) 65 F.3d 1248, 1254).
(A) Prior Restraint
Notably, Krontz does not challenge the no-touch or six-foot rules or challenge the requirement that he obtain a permit to operate a nude entertainment business. Nor does Krontz challenge the sufficiency of the evidence to support the findings he allowed violations of the no-touch and six-foot rules at Déjà Vu. Instead, Krontz argues the sanction of permit suspension is an improper prior restraint because it not only prevents the non-protected activity (violations of the no-touch and six-foot rules), it also prevents any expressive activity that is protected by the First Amendment. He argues the City is limited to imposing a fine.
"The term `prior restraint' is used `to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.'" (Alexander v. United States (1993) 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441, italics omitted.) A licensing scheme may constitute an unconstitutional prior restraint if it puts unbridled discretion in the hands of government officials charged with granting or denying licenses or allows the decisionmaker unlimited time to render a decision on the matter affecting the license; to be constitutional, licensing schemes for adult entertainment establishments must contain sufficient procedural safeguards. (Freedman v. State of Maryland (1965) 380 U.S. 51, 58-60, 85 S.Ct. 734, 13 L.Ed.2d 649; Essence, Inc. v. City of Federal Heights, supra, 285 F.3d 1272, 1289-1290; Fly Fish, Inc. v. City of Cocoa Beach (11th Cir.2003) 337 F.3d 1301, 1313; Déjà Vu of Cincinnati, L.L.C. v. Union Tp. Bd. of Trustees (6th Cir.2005) 411 F.3d 777, 786.) If a licensing scheme meets the procedural requirements, then it is analyzed to determine whether it is a constitutional time, place, and manner restriction.
Prior restraints must be distinguished from subsequent punishments. (Alexander v. United States, supra, 509 U.S. at pp. 553-554, 113 S.Ct. 2766.) Thus, an individual may be punished for distributing obscene materials even though the punishment may affect the individual's future protected speech. (Id. at p. 555, 113 S.Ct. 2766; see also City of Paducah v. Investment Entertainment, Inc. (6th Cir.1986) 791 F.2d 463, 469.) A bookstore may be closed under a nuisance statute if the owner has permitted it to be used for illicit sexual activity. (Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (Arcara).) In Arcara, where the court upheld the closure of a bookstore under a nuisance statute, the court rejected an argument the closure order was an unconstitutional prior restraint, explaining: "the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited—indeed, the imposition of the closure order has nothing to do with any expressive conduct at all."
An adult entertainment license may be constitutionally revoked when the licensee has violated valid provisions of a licensing ordinance. (Genusa v. City of Peoria, supra, 619 F.2d 1203, 1220; LLEH, Inc. v. Wichita County (5th Cir. 2002) 289 F.3d 358, 370 (LLEH I); Tily B., Inc. v. City of Newport Beach, supra, 69 Cal.App.4th 1, 25-26, 81 Cal.Rptr.2d 6 [upholding revocation provisions applicable to adult entertainment business and rejecting as "extreme, unsupported, and incorrect" the position of the nude entertainment establishment that "the First Amendment prohibits revocation of its permits"]; Schultz v. City of Cumberland, supra, 228 F.3d 831, 853 ["The government may regulate the conditions under which operators and performers may stage adult entertainment, and in accordance, it may withhold or revoke a license pending compliance with legitimate time, place or manner requirements"]; Admiral Theatre v. City of Chicago (D.Ill.1993) 832 F.Supp. 1195, 1205 ["a prohibition on future protected
Krontz relies on Vance v. Universal Amusement Co. (1980) 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (Vance) for the proposition "government efforts to preclude someone from engaging in constitutionally protected activity because of previous illegal activity have been held to be impermissible prior restraints." Vance does not support this proposition. The question presented in Vance was whether a Texas public nuisance statute was unconstitutional because it authorized a prior restraint of indefinite duration on the exhibition of films that had not been fully adjudicated to be obscene and without any guarantee of prompt judicial review of a preliminary finding of probable obscenity. (Id. at pp. 309, 316-317, 100 S.Ct. 1156.) The Supreme Court found the Texas statute lacked the necessary procedural safeguards, in particular a prompt judicial determination of obscenity. In contrast here, Krontz does not challenge the adequacy of the procedural safeguards and at issue here is the imposition of a sanction after a finding Krontz had violated regulations and had prompt judicial determination of the violations. (See LLEH I, supra, 289 F.3d 358, 370, distinguishing the Fifth Circuit's decision (Universal Amusement Co., Inc. v. Vance (5th Cir.1978) 587 F.2d 159) which was affirmed in Vance, inter alia, on the basis that case involved an injunction prior to the determination of a violation while LLEH I involved license revocation after a violation had been determined to have occurred.)
Krontz also misplaces reliance on Millennium, supra, 191 F.Supp.2d 802. He states the court in Millennium "permanently enjoined enforcement of a Dallas ordinance that authorized the revocation of a nude entertainment business license based on past dance performances that crossed the line from lawful to unlawful." He quotes the following language from Millennium:
As we pointed out above, Krontz does not dispute he violated valid regulations relating to his permit (the no-touch or six-foot rule). Nor does he challenge the ordinance as being void for vagueness or lacking necessary procedural safeguards.
(B) Time, Place and Manner Restriction
Krontz contends the regulation, to the extent it allows the suspension of a permit for a nude entertainment establishment, is an invalid time, place or manner regulation.
The constitutional analysis of regulations that impact expressive activity differ depending on whether the regulation is content based or content neutral; for content-based regulations the courts apply a strict scrutiny level of review while the courts apply an intermediate level of scrutiny for content neutral regulations. (Turner Broadcasting System v. FCC (1994) 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (Turner).) "Deciding whether a particular regulation is content based or content neutral is not always a simple task." (Ibid.) The "principal inquiry in
Municipal Code section 33.0403 is content neutral on its face. Section 33.0403 applies to any businesses that are required to have a permit, including those not afforded any First Amendment protection, such as auto dismantlers and pawn brokers. There is no language in the section referring to ideas, views, or the content of expressive activity; section 33.0403 provides for suspension of a permit if a permitee violates any law or regulation pertaining to the permitted business.
When a regulation is content neutral, a restriction on expressive activity will be found to be valid if: (1) the regulation is within the power of the government to enact; (2) it furthers an important or substantial governmental interest; (3) the government interest is unrelated to the suppression of free speech; and (4) the restriction is no greater than is essential to the furtherance of the governmental interest. (United States v. O'Brien (1968) 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672; Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 880, 890, 121 Cal.Rptr.2d 729; Tily B., Inc. v. City of Newport Beach, supra, 69 Cal.App.4th 1, 21, 81 Cal.Rptr.2d 6; Johnson, Fourth Annual Review of Gender and Sexuality: Constitutional Law Chapter: Nude Dancing, 4 Geo. J. Gender & L. 169, 170-171 (2002); Threesome Entertainment v. Strittmather (D.Ohio 1998) 4 F.Supp.2d 710, 720.) This four-part test is often referred to as the "O'Brien test." (Millennium, supra, 191 F.Supp.2d 802, 808; Morris v. Municipal Court, supra, 32 Cal.3d 553, 559, 186 Cal.Rptr. 494, 652 P.2d 51.)
Krontz concedes "an ordinance authorizing permit suspension . . . is within the City's constitutional police power and, presumably, it could further the governmental interest of gaining compliance with various predicate regulations." Thus, Krontz concedes the first two prongs of the O'Brien test are met.
Krontz contends the third prong—the government interest is unrelated to the suppression of free speech—is not met because the underlying governmental interest is obtaining compliance with the "predicate regulations that . . . directly suppress specific elements of that protected expression." We disagree. The governmental interest of obtaining compliance
The fourth prong of the O'Brien test requires the restriction to be no greater than necessary to further the governmental interest. Krontz argues the regulation is invalid "because it suppresses all expression so its impact on protected expressive activity is far more than `incidental,'" that is, during the period of suspension, no protected expressive conduct (nude dancing) may occur at Déjà Vu. He suggests the City was limited to imposing a fine. However, the Supreme Court has rejected the argument that a "`challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives . . . .'" (Ward v. Rock Against Racism, supra, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661; see also United States v. Albertini (1985) 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 ["Nor are such [content-neutral] regulations invalid simply because there is some imaginable alternative that might be less burdensome on speech"]; see also City of National City v. Wiener, supra, 3 Cal.4th 832, 842, 12 Cal.Rptr.2d 701, 838 P.2d 223 ["`[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest, . . . the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative'"].) The requirement that a regulation be narrowly tailored "is satisfied so long as the government's asserted interest `would be achieved less effectively absent the regulation.'" (Dream Palace v. County of Maricopa (9th Cir.2004) 384 F.3d 990, 1016; Ward v. Rock Against Racism, supra, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661.)
Here, the governmental interest behind Municipal Code section 33.0403 is to ensure the permitee complies with applicable laws and regulations. A regulatory sanction of suspension certainly furthers the goal of obtaining compliance with applicable laws and regulations and that goal would be achieved less effectively absent the availability of the sanction. The suspension imposed here was of a very limited duration. We also note a fine could be less effective at achieving the government's goal of compliance with regulations since a business owner could pass along the fines to his or her customers as a cost of doing business and continue to engage in violations. Additionally, while Krontz's business may be closed as a venue for nude entertainment during the period of suspension, the closure does not prohibit nude entertainment at other venues or prohibit
We conclude the City's regulation allowing suspension of a permit is a valid time, place, or manner restriction.
Alternatively, Krontz objects to the suspension of his license as being an improper injunction limiting future activity that is protected by the First Amendment. We find no merit to this argument. At issue here is not an injunction but an ordinance that is subject to analysis as a content-neutral time, place, and manner restriction. (See Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, 764-765, 114 S.Ct. 2516, 129 L.Ed.2d 593.) As we have explained above, the regulation is valid and constitutional.
(D) California Constitution
Krontz contends the California Constitution's "liberty of speech" clause (Cal. Const. art. I, § 2(a)) provides broader protection than the First Amendment. He relies on Morris v. Municipal Court, supra, 32 Cal.3d 553, 562, footnote 8, 186 Cal.Rptr. 494, 652 P.2d 51, where the court stated, "[E]ven a performance that involves the barest minimum of protected expression is entitled to full First Amendment protection."
The California Supreme Court in Morris, however, was only interpreting the First Amendment based on then-existing United States Supreme Court precedent. Since the Morris decision, the United States Supreme Court and the cases interpreting its decisions have repeatedly stated nude entertainment receives a lesser degree of First Amendment protection than other speech; that is, although receiving First Amendment protection, nude entertainment "falls only within the outer ambit of the First Amendment's protection." (Erie, supra, 529 U.S. at p. 289, 120 S.Ct. 1382; Barnes, supra, 501 U.S. at p. 566, 111 S.Ct. 2456["[N]ude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so"].) Had Morris been decided today, we have no doubt that it would have recognized the limitations on the First Amendment protection extended by the United States Supreme Court.
Further, in Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 93 Cal.Rptr.2d 1, 993 P.2d 334, the California Supreme Court stated: "our formulation of the time, place, and manner test [used in California] was `fashioned from a long line of United States Supreme Court cases' [citation] and . . . analysis of speech regulation under [California Constitution] article I, section 2(a), employs `time, place and manner restrictions . . . measured by federal constitutional standards.'" (Id. at p. 364, fn. 7, 93 Cal.Rptr.2d 1, 993 P.2d 334, italics added.)
We reject Krontz's arguments the California Constitution grants broader protection and that the regulation here is unconstitutional under the California Constitution.
Krontz contends the City's permit suspension process violates due process because he received untimely notice of the charges. He contends "the inordinate delay in affording him an opportunity to appear before an impartial finder-of-fact to contest those charges, prejudiced his ability to defend the allegations."
The facts, as found by the hearing officer, indicate the police department did not
However, the hearing officer also found the violations continued over a 10 month period, Krontz could have taken additional steps to control the entertainers' behavior, and there was no evidence Krontz or his employees ever intervened or took disciplinary or corrective action except after Krontz received a written warning. The hearing officer concluded that when the police were not present Krontz "tolerated entertainers `crossing the line'" and that "tolerating the violations was the norm."
Due process requires that when the government seeks to deprive a person of property, it must provide the individual with notice and an opportunity to be heard. (Petrillo v. Bay Area Rapid Transit Dist. (1988) 197 Cal.App.3d 798, 808, 243 Cal.Rptr. 74.) When an individual claims governmental delay in imposing sanctions has violated the guarantee of due process, the individual bears the burden of establishing actual prejudice. (See People v. Belton (1992) 6 Cal.App.4th 1425, 1433, 8 Cal.Rptr.2d 669.)
Here, the suspension was not imposed based on a discrete violation but on persistent violations occurring over an extended period. Krontz had ample notice of repeated violations at Déjà Vu. The City sent him warning letters in May, August and October 2001, each detailing multiple violations. Police officers also met with Krontz's representative and attorney on October 26, 2001, where it informed them of additional violations, and sent Krontz a written summary of the meeting and the additional violations. The City did not seek suspension until January 17, 2002, after additional violations had occurred. The additional violations had occurred within two weeks of the notice. This record shows Krontz was provided with ample notice of the numerous violations at Déjà Vu occurring over a 10-month period and notice that his license could be suspended if the violations persisted. Krontz had the opportunity to challenge the existence of the violations following the issuance of each warning letter and at the October 26 meeting. (See Municipal Code, § 33.0404, subd. (b) ["Whenever a written warning is issued, the permittee shall be afforded an opportunity to meet with the Chief of Police regarding the written warning" (italics omitted)].) We find no merit to Krontz's argument that the January 2002 notice of suspension provided the first opportunity to challenge the alleged violations.
Krontz has failed to show he suffered any actual prejudice. He merely points to the delays. However, most of the violations were reported to Krontz within two weeks, and the permit suspension was not based on the existence of any single violation but on a persistent pattern of violations showing Krontz tolerated violations within his establishment. Any individual delays do not tend to undermine the notice Krontz received of ongoing violations. Nor did Krontz present any evidence showing that any delays resulted in the loss of witnesses or other relevant evidence.
The judgment is affirmed. Respondents are awarded costs on appeal.
WE CONCUR: HUFFMAN and NARES, JJ.