Vivid Entertainment LLC et al v. Jonathan Fielding et al
Filing
79
ORDER DENYING IN PART AND GRANTING IN PART INTERVENERS' MOTION TO DISMISS 49 ; DENYING IN PART AND GRANTING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION 55 ; AND VACATING PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 64 by Judge Dean D. Pregerson. (lom)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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VIVID ENTERTAINMENT, LLC;
CALIFA PRODUCTIONS, INC.;
JANE DOE a/k/a KAYDEN KROSS,
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Plaintiff,
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v.
JONATHAN FIELDING, DIRECTOR
OF LOS ANGELES COUNTY
DEPARTMENT OF PUBLIC HEALTH;
JACKIE LACEY, LOS ANGELES
COUNTY DISTRICT ATTORNEY,
and COUNTY OF LOS ANGELES,
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Defendants.
___________________________
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Case No. CV 13-00190 DDP (AGRx)
ORDER DENYING IN PART AND
GRANTING IN PART INTERVENERS’
MOTION TO DISMISS; DENYING IN
PART AND GRANTING IN PART
PLAINTIFFS’ MOTION FOR A
PRELIMINARY INJUNCTION; AND
VACATING PLAINTIFFS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
[Docket Nos. 49, 55, 64]
I. Background
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Plaintiffs Vivid Entertainment, LLC (“Vivid”) and Califa
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Productions, Inc., produce adult films. (Compl. ¶¶ 8-9, Docket No.
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1.)
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(“Ms. Kross”), and John Doe, known professionally as Logan Pierce
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(“Mr. Pierce”), are performers who appear in adult films. (Id. ¶¶
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10-11.)
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Plaintiffs Jane Doe, known professionally as Kayden Kross
The adult film industry regularly tests actors for sexually
transmitted infections (“STIs”).
(Id. ¶¶ 20-31.)
During the
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November 2012 elections, Los Angeles County passed, via referendum,
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The County of Los Angeles Safer Sex in the Adult Film Industry Act
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(“Measure “B”).
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B); Los Angeles County Code § 11.39 (“§ 11.39"), et seq. (codifying
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Measure B).
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production can occur, to pay a fee and obtain a permit from the
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County Department of Public Health (the “Department”), which is
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tasked with enforcing Measure B.
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Public Health, set the permit fee in the range of $2,000 to $2,500
(Id. ¶ 36; Docket No. 58-1 Ex. B text of Measure
Measure B forces producers of adult films, before any
(Id. ¶ 41-43.)
The Department of
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per year.
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display the permit at all times during filming.
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permit is valid for two years, but is, at all times, subject to
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immediate revocation.
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requires that performers engaging in anal or vaginal sexual
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intercourse to use condoms during filming. (Compl. ¶ 42.)
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(Compl. ¶ 48.)
Once approved, the film producers must
(Id.)
(Id. ¶ 41.)
A
Once a permit is granted, Measure B
Department inspectors are granted access to “any location
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suspected of conducting any activity regulated by” Measure B,
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without notice.
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property or private documents from any person present at any
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location if there is suspicion of a Measure B violation.
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§ 11.39.130.
Inspectors can look at personal
See id.
Plaintiffs have sued various County officials for Declaratory
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and Injunctive Relief.
(See generally Compl.)
Because Defendants
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have declined to defend Measure B’s constitutionality, this Court
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has allowed Michael Weinstein, Marijane Jackson, Arlette De La
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Cruz, Mark McGrath, Whitney Engeran, and the Campaign Committee Yes
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on B, Major Funding by the AIDS Healthcare Foundation
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(“Interveners”) to intervene.
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to Intervene, Docket No. 44; Order Denying Plaintiffs’ Motion for
(See generally Order Granting Motion
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Reconsideration, Docket No. 78.)
Interveners were Measure B’s
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official proponents.
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is Interveners’ Motion to Dismiss and Plaintiffs’ Motion for a
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Preliminary Injunction.
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II. Legal Standard
(Id. at 2:19-20.)
Presently before the Court
(Docket Nos. 49, 55.)1
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A. Motion to Dismiss
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A complaint will survive a motion to dismiss when it contains
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“sufficient factual matter, accepted as true, to state a claim to
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relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007)).
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“accept as true all allegations of material fact and must construe
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those facts in the light most favorable to the plaintiff.”
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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
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need not include “detailed factual allegations,” it must offer
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“more than an unadorned, the-defendant-unlawfully-harmed-me
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accusation.”
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allegations that are no more than a statement of a legal conclusion
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“are not entitled to the assumption of truth.”
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other words, a pleading that merely offers “labels and
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conclusions,” a “formulaic recitation of the elements,” or “naked
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assertions” will not be sufficient to state a claim upon which
When considering a Rule 12(b)(6) motion, a court must
Iqbal, 556 U.S. at 678.
Resnick
Although a complaint
Conclusory allegations or
Id. at 679.
In
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Plaintiffs argue the motion to dismiss is untimely because
the County has already filed an answer in this case. Generally,
motions to dismiss must be filed before an answer. United States
v. Real Prop. Located at 41430 De Portola Rd., Rancho California,
959 F.2d 243 (9th Cir. 1992). It is unclear, though, how this rule
is applied in the intervener context. Regardless, should the rule
apply to Interveners, the Court uses its discretion to convert the
motion to dismiss into a motion for judgment on the pleadings,
which is analogous to a motion to dismiss except that it may be
filed after an answer. See id.
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relief can be granted.
Id. at 678 (citations and internal
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quotation marks omitted).
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allegations, a court should assume their veracity and then
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determine whether they plausibly give rise to an entitlement of
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relief.”
“When there are well-pleaded factual
Id. at 679.
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B. Motion for Preliminary Injunction
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“[P]laintiffs seeking a preliminary injunction must establish
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that (1) they are likely to succeed on the merits; (2) they are
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likely to suffer irreparable harm in the absence of preliminary
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relief; (3) the balance of equities tips in their favor; and (4) a
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preliminary injunction is in the public interest.”
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Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter
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v. Natural Resources Defense Council, Inc., 555 U.S. 7, 29 (2008)).
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III. Motion to Dismiss Analysis
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Sierra Forest
After reviewing Interveners’ motion to dismiss, the Court
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GRANTS dismissal of Plaintiffs’ claim that ballot initiatives
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cannot, as a matter of law, implicate First Amendment rights, that
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state law preempts Measure B, and that Measure B violates
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Plaintiffs’ due process rights (with the exception of Plaintiffs’
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Fourth Amendment claim).
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remaining claims.
The Court DENIES dismissal on the
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A. Standing
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Interveners claim that Plaintiffs do not have standing.
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Standing is a “threshold question.”
Nat'l Org. for Women, Inc. v.
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Scheidler, 510 U.S. 249, 255 (1994).
The doctrine “is founded in
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concern about the proper–and properly limited role–of the courts in
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a democratic society.”
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The constitutional requirements of standing are:
Wart v. Seldin, 422 U.S. 490, 498 (1975).
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(1) injury in fact, by which we mean an invasion of a
legally protected interest that is (a) concrete and
particularized, and (b) actual or imminent, not
conjectural or hypothetical; (2) a causal relationship
between the injury and the challenged conduct, by which
we mean that the injury fairly can be traced to the
challenged action of the defendant, and has not resulted
from the independent action of some third party not
before the court; and (3) a likelihood that the injury
will be redressed by a favorable decision, by which we
mean that the prospect of obtaining relief from the
injury as a result of a favorable ruling is not too
speculative.
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Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of
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Jacksonville, 508 U.S. 656, 663-664 (1993).
Plaintiffs have the
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burden of showing they have standing.
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Wildlife, 504 U.S. 555, 562 (1992).
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standing purposes that the plaintiff intends to engage in a course
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of conduct arguably affected with a constitutional interest and
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that there is a credible threat that the challenged provision will
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be invoked against the plaintiff.”
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Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003)
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(internal quotation marks and citations omitted) (emphasis added).2
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“Thus, when the threatened enforcement effort implicates First
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Amendment rights, the inquiry tilts dramatically toward a finding
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of standing.”
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enforcement standing is appropriate when the issue is a purely
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legal one and it would be costly to comply with the challenged law
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or regulation.
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(1967).
Id.
Lujan v. Defenders of
“[I]t is sufficient for
Arizona Right to Life Political
Even outside the First Amendment context, pre-
See Abbott Labs v. Gardner, 387 U.S. 136, 149
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The word “arguably” is important because standing must be
decided before the merits are reached.
George E. Warren Corp. v.
U.S. E.P.A., 164 F.3d 676 (D.C. Cir. 1999).
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Here, standing is appropriate.
Vivid and Califa,
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collectively, make, produce, and distribute adult films, and their
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principle place of business is Los Angeles.
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Plaintiffs Kross and Pierce perform in adult films produced Los
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Angeles.
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sent a letter to the “Producers of Adult Films in Los Angeles
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County, indicating what steps the Department would take in
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implementing and enforcing Measure B.”
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also Compl. ¶¶ 55, 61, 76, 89, 97.)
(Id. ¶¶ 10-11.)
(Compl. ¶¶ 8-9.)
On December 14, 2012, the Department
(Docket No. 56 Ex. 1; see
Vivid has presented evidence
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that, as a result of Measurer B’s passage, it has stopped shooting
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adult films in Los Angeles, and has thus lost the value of the non-
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Measure B filming permits for which it has already paid.
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Decl. ¶¶
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outside Los Angeles creates several difficulties: performers are
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generally less available to film outside the County, fewer support
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services are available outside the County, and fewer suitable
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locations exist outside the County.
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Kross attests that she prefers to act with a partner not wearing a
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condom, for reasons that range from comfort to the message she
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wishes to portray, and she also attests that Measure B has reduced
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the number of roles in which she has had the opportunity to act.
20-21.)3
(Hirsch
Vivid has also presented evidence that filming
(Id. ¶¶ 28-32.)
Moreover,
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“In evaluating a plaintiff's standing at the motion to
dismiss stage, a court may consider not only the allegations in the
complaint, but also factual averments made by declaration or
affidavit.” Am. Tradition Inst. v. Colorado, 876 F. Supp. 2d 1222,
1232 (D. Colo. 2012); Vildosola v. Hornbeak, No. CV 08-6590-VAP
JEM, 2010 WL 1507100, at *8 (C.D. Cal. Feb. 25, 2010) (looking to
declarations to determine standing at the motion to dismiss stage).
“[A] suit will not be dismissed for lack of standing if there are
sufficient allegations of fact—not proof—in the complaint or
supporting affidavits.”) Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay, 484 U.S. 49, 65 (1987) (emphasis added).
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(Kross Decl. ¶¶ 9-11, 15.)
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(Pierce Decl. ¶¶ 7-11.)
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concerns that Measure B implicates, the costs and consequences of
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complying with Measure B, and the County’s expressed intent to
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enforce Measure B, Plaintiffs have standing to challenge it.
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Bayless, 320 F.3d at 1006; see also Abbott Labs, 387 U.S. at 149
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(indicating that standing would be proper even outside the First
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Amendment context).
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Pierce makes similar attestations.
In light of the potential First Amendment
B. Plaintiffs’ State Law Preemption Claim
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Plaintiffs contend that Cal. Labor Code § 144.7 and California
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Code of Regulations Title 8 § 5193 preempt Measure B
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101.)
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supplemental jurisdiction, 28 U.S.C. § 1367, is the only means by
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which this Court may preside over Plaintiffs’ state law preemption
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claim.
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“decline to exercise supplemental jurisdiction” over matters that
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“raise[] a novel or complex issue of State law.”
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v. Cnty. of Maricopa, 384 F.3d 990, 1022 (9th Cir. 2004).
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Ninth Circuit has upheld a decision to decline supplemental
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jurisdiction over a claim that state law preempted a county
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ordinance governing adult entertainment sites.
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F.3d at 1022.
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remaining state-law claims raise delicate issues involving the
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interpretation and application of Arizona law and the balance of
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powers within Arizona between state and local government.”
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Since similar concerns about the balance of power in California are
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present in Plaintiffs’ novel preemption claim, this Court declines
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supplemental jurisdiction.
(Compl. ¶
Diversity jurisdiction is not alleged, and, therefore,
However, 28 U.S.C. § 1367, grants courts the discretion to
Id.; Dream Palace
The
Dream Palace, 384
The district court in that case explained that “the
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Id.
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C. Plaintiffs’ First Amendment Claim
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Plaintiffs allege that requiring actors in adult films to wear
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condoms violates their First Amendment rights. (Compl. ¶¶ 42, 51-
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56.)
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all conduct receives First Amendment protection; only expressive
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conduct is considered speech and implicates the First Amendment.
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See Nordyke v. King, 319 F.3d 1185, 1189 (9th Cir. 2003).
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Supreme Court has applied the First Amendment to restrictions on
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nude dancing, adult movie theaters, adult bookstores, and live
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adult theater performances because the First Amendment protects
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sexually explicit speech.
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215, 224 (1990) (citing cases).
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engaging in sexual intercourse for the purpose of making a
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commercial adult film receives First Amendment protections.
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Court is aware of no case that has analyzed this issue.
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given the multitude of cases that have analyzed restrictions on
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adult entertainment under the First Amendment, this Court concludes
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that sexual intercourse engaged in for the purpose of creating
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commercial adult films is expressive conduct, is therefore speech,
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and therefore any restriction on this expressive conduct requires
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First Amendment scrutiny.
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Such a requirement is a restriction on conduct.
However, not
The
FW/PBS, Inc. v. City of Dallas, 493 U.S.
Presently at issue is whether
The
However,
See id.
Measure B’s stated purpose “is to minimize the spread of
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sexually transmitted infections resulting from the production of
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adult films in Los Angeles.”
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58-1.)
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unprotected speech, rather than the message the speech conveys, it
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will be reviewed under intermediate scrutiny.
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v. City of Cocoa Beach, 337 F.3d 1301, 1306-09 (11th Cir.
(Docket No. 58-1 Ex. B, Docket No.
Because this purpose focuses on the secondary effects of
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See Fly Fish, Inc.
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2003)(evaluating an ordinance that prohibited “totally nude”
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dancing in “adult entertainment establishments” under the Renton
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intermediate scrutiny framework); Heideman v. S. Salt Lake City,
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348 F.3d 1182, 1196. (10th Cir. 2003) (evaluating a similar
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ordinance under intermediate scrutiny); see generally Renton v.
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Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986) (holding that
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an ordinance that treated “theaters that specialize in adult
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films” differently should be analyzed under a content neutral,
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intermediate scrutiny framework because the ordinance was aimed at
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the secondary effects of those theaters, not their content).4
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Plaintiffs state that Measure B requires strict scrutiny
review for three reasons. First, Measure B singles out adult
films. But the Ordinance in Renton also involved a statute that
singled out adult theaters. Renton, 475 U.S. at 47-48.
Plaintiffs’ first argument, thus, fails. Second, Plaintiffs argue
that Renton’s reasoning only applies in the context of zoning,
because zoning does not prohibit what can be shown, only where
something can be shown. Several Circuits have rejected that
argument. See Fly Fish, 337 F.3d at 1306-09; Heideman, 348 F.3d at
1196. The Tenth Circuit has reasoned:
The fallacy in Plaintiffs’ argument is to assume that the
“adequate alternative avenues of expression” required
under the Renton line of cases refers exclusively to
location. Time, place, or manner regulations all are
partial limitations, but each is partial in a different
way. . . . “[M]anner” limitations require alternative
ways in which a message may be communicated. A ban on
nudity within sexually oriented businesses is a ‘manner’
regulation, and Plaintiffs have provided no reason to
believe that there do not exist other ways to get their
message across.
Heideman, 348 F.3d at 1196 (citations omitted). Third, Plaintiffs
suggest that requiring condoms “so interferes with the message that
it essentially bans the message.” City of Erie v. Pap's A.M., 529
U.S. 277, 293 (2000) (pl. op.). Plaintiffs’ third argument is
composed of two sub-arguments, one made at oral argument and the
other made in briefing. During oral argument, Plaintiffs stated
that Measure B prevents them from making adult films depicting sex
during an historical period before condoms existed. The Court
notes anachronisms need not detract from a story. Even assuming
that condoms interfere with storylines, Plaintiffs’ argument, if
accepted, would require every manner restriction to be reviewed
under strict scrutiny because any manner restriction inherently
(continued...)
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Under intermediate scrutiny narrow tailoring, Interveners
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(...continued)
interferes with a large number of storylines. It is settled law,
though, that manner restrictions only trigger intermediate
scrutiny.
See Fly Fish, 337 F.3d at 1306-09; Heideman, 348 F.3d
at 1196; City of Erie v. Pap's A.M., 529 U.S. 277 (2000); Barnes v.
Glen Theatre, Inc., 501 U.S. 560, 576 (1991). The condom
requirement is analogous to requirements that nude dancers wear
pasties and G-strings, both of which are de minimis restrictions on
a sexually explicit message that trigger intermediate scrutiny.
Pap’s, 529 U.S. at 294 (pl. op.) (“Any effect on the overall
expression [on account of requiring dancers to wear pasties and
G-strings] is de minimis.”); Schultz v. City of Cumberland, 228
F.3d 831, 847-48 (7th Cir. 2000) (noting that pasties and G-strings
are analyzed under intermediate scrutiny because they are de
minimis restrictions); Dream Palace, 384 F.3d at 1021 (favorably
discussing Schultz).
Plaintiffs’ briefing argues and their declarations state that
not using a condom is intended to communicate a message. (See
Kross Decl. ¶¶ 12-13 (attesting that [c]ondoms are a reminder of
real-world concerns” such as “pregnancy and disease,” and that
requiring condoms in adult films’ hinders those films’ aim to
“suspend . . . concerns [about pregnancy and disease] and allow
audience members to suspend their disbelief”.)) If condomless sex
in adult films is inherently expressive, then requiring condoms
would completely block that expression, and strict scrutiny would
be required. Pap’s, 529 U.S. at 293.
“[T]he Supreme Court has ‘extended First Amendment protection
only to conduct that is inherently expressive.’” Wong v. Bush, 542
F.3d 732, 736 (9th Cir. 2008) (quoting Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U.S. 47, 66 (2006)).
An act is inherently expressive if the “likelihood [is] great that
the message would be understood by those who viewed it.” Spence,
418 U.S. at 410-11. The Supreme Court has cautioned that the
“inherently expressive” requirement means that words cannot be used
to explain the message that conduct is meant to communicate,
because “[i]f combining speech and conduct were enough to create
expressive conduct, a regulated party could always transform
conduct into ‘speech’ simply by talking about it.” Rumsfeld, 547
U.S. at 66. Like nude dancing, sexual intercourse performed for
the production of adult films inherently expresses an erotic
message. See Pap's, 529 U.S. at 301 (pl. op.) (recognizing erotic
message of nude dancing); Dream Palace, 384 F.3d at 1021 (same).
But, without the explanatory declarations, it is unclear what
message condom-less sex conveys. Just as the requirement that nude
dancers wear pasties and G-strings is viewed as a restriction on
expressive conduct, so, too, is the requirement that adult film
actors wear condoms a restriction on expressive conduct. Put
differently, sexual intercourse performed for adult films and nude
dancing both are expressive conduct, but requiring condoms for the
former and pasties for the latter are only de minimis restrictions
on expressive conduct.
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must “demonstrate that the recited harms” to the substantial
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governmental interest “are real, not merely conjectural, and that
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the regulation will in fact alleviate those harms in a direct and
4
material way.”5
5
is “not invalid simply because there is some imaginable
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alternative that might be less burdensome on speech,” Turner II,
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520 U.S. at 217, the Interveners must prove that the statute does
8
not “burden substantially more speech than is necessary to further
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the government’s legitimate interests.”
Turner I, 512 U.S. at 664–65.
While an ordinance
Turner I, 512 U.S. at 665
10
(internal quotations omitted).
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frequent, and universal testing in the adult film industry,
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Plaintiffs allege sufficient facts, which for purposes of this
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motion must be assumed true and construed in the light most
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favorable to Plaintiffs, to show that Measure B’s condom
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requirement does not alleviate the spread of STIs in a “direct and
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material way.”
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Thus, Interveners motion to dismiss Plaintiffs’ First Amendment
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claim is DENIED.
In light of the alleged effective,
Turner I, 512 U.S. at 664–65; (Compl. ¶¶ 18-31.)6
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20
21
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Public health is a substantial government interest. Rubin v.
Coors Brewing Co., 514 U.S. 476, 485 (1995).
6
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27
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Plaintiffs’ over and under inclusive claims are also relevant
to narrow tailoring. (Compl. ¶¶ 78-90.) Thus, these claims would
be more appropriately combined with Plaintiffs’ First Amendment
claim, which for the reasons discussed above, survives dismissal.
Cf. Sec'y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S.
947 n.13 (1984) (“Overbreadth has also been used to describe a
challenge to a statute that in all its applications directly
restricts protected First Amendment activity and does not employ
means narrowly tailored to serve a compelling governmental
interest. . . . Whether that challenge should be called
‘overbreadth’ or simply a ‘facial’ challenge, the point is that
there is no reason to limit challenges to case-by-case ‘as applied’
challenges when the statute on its face and therefore in all its
applications falls short of constitutional demands.”)
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D. Plaintiffs’ Claim That Referendums May Not Implicate the
2
3
First Amendment
Plaintiffs claim that referendums that implicate the First
4
Amendment are inherently invalid, because they do not have
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legislative records and their findings deserve no deference.
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claim appears to focus on Measure B’s condom requirement.
7
¶¶ 51-56 (emphasizing Measure B’s condom-related findings).)
8
one court stated, “no court has accorded legislative deference to
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ballot drafters.”
This
(Compl.
As
Daggett v. Webster, No. 98-223-B-H, 1999 WL
10
33117158, at *1 (D. Me. May 18, 1999).
11
deference because they are “better equipped than the judiciary to
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‘amass and evaluate the vast amounts of data’ bearing upon ...
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complex and dynamic” issues.
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Because the referendum process does not invoke the same type of
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searching fact finding, a referendum’s fact finding does not
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“justif[y] deference.”
17
Action Comm. v. Scully, 989 F. Supp. 1282, 1299 (E.D. Cal. 1998),
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aff'd, 164 F.3d 1189 (9th Cir. 1999).
19
Legislatures receive
Turner I, 512 U.S. at 665–66.
California Prolife Council Political
However, an undeferential review of Measure B’s findings does
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not equate to an automatic resolution in Plaintiffs’ favor.
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means that Interveners must have a record sufficient for Measure B
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to withstand intermediate scrutiny, without the benefit of
23
deference.
24
920, 945 (9th Cir. 1995), vacated on other grounds, Arizonans for
25
Official English v. Arizona, 520 U.S. 43(1997)7 (“There is no basis
It
Yniguez v. Arizonans for Official English, 69 F.3d
26
27
28
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“[A]t minimum, a vacated opinion still carries informational
and perhaps even persuasive or precedential value.” DHX, Inc. v.
Allianz AGF MAT, Ltd., 425 F.3d 1169, 1176 (9th Cir. 2005).
12
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in the record to support the proponents’ assertion that any of the
2
broad societal interests on which they rely
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provisions of Article XXVIII.
4
effect is of particular significance given that . . . Article
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XXVIII is a ballot initiative and thus was subjected to neither
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extensive hearings nor considered legislative analysis before
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passage.”)
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claim that referendums may not implicate the First Amendment.
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are served by the
The absence of any evidence to this
Accordingly, the Court GRANTS dismissal of Plaintiffs’
E. Plaintiffs’ Prior Restraint Claim
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“The term prior restraint is used to describe administrative
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and judicial orders forbidding certain communications when issued
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in advance of the time that such communications are to occur.”
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Alexander v. United States, 509 U.S. 544 (1993).
14
requirement is a prior restraint on speech and therefore bears a
15
heavy presumption against its constitutionality.”
16
of Seattle, 569 F.3d 1029, 1037 (9th Cir. 2009) (internal
17
quotation marks and citation omitted).
18
have found that a prior restraint exists when an individual must
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obtain a permit to engage in nude dancing.
20
Anaheim, 826 F. Supp. 336, 342 (C.D. Cal. 1993); Santa Fe Springs
21
Realty Corp. v. City of Westminster, 906 F. Supp. 1341, 1363 (C.D.
22
Cal. 1995) (citing Dease and applying that case’s logic).
23
“A permitting
Berger v. City
Courts in this district
Dease v. City of
Interveners claim that Measure B is not a prior restraint
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because it does not require a permit to show films, it only
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requires a permit to film certain types of films.
26
distinction is unhelpful.
27
invalid because they chill speech from occurring. “The presumption
28
against prior restraints is heavier-and the degree of protection
This
Prior restraints are presumptively
13
1
broader-than that against limits on expression imposed by criminal
2
penalties.
3
our law: a free society prefers to punish the few who abuse rights
4
of speech after they break the law than to throttle them and all
5
others beforehand.”
6
559
7
prior restraint to require a permit for a film to be shown, a book
8
to be published, or a painting to be displayed but not a prior
9
restraint to require a permit for a movie to be filmed, a book to
Behind the distinction is a theory deeply etched in
(1975).
Se. Promotions, Ltd. v. Conrad, 420 U.S. 546,
This policy concern would be upended if it were a
10
be written, or a painting to be painted.
11
which requires producers to obtain a permit before shooting “any
12
film, video, multimedia or other representation of sexual
13
intercourse” is a prior restraint.8
14
Therefore, Measure B,
Plaintiffs argue that Measure B does not provide sufficient
15
procedural safeguards, does not have narrowly tailored
16
requirements, and gives the County unbridled discretion.
17
Court generally agrees.9
The
18
8
19
20
21
22
23
24
25
26
27
28
Interveners are incorrect in arguing that Plaintiffs must
allege that they have applied for a permit in order to challenge
Measure B. “Plaintiffs who challenge a permitting system are not
required to show that they have applied for, or have been denied, a
permit. . . . They must only have declined to speak, or have
modified their speech, in response to the permitting system.”
Kaahumanu v. Hawaii, 682 F.3d 789, 796 (9th Cir. 2012); see id.
(striking down a broad revocation and suspension provision even
though “the record indicate[d] that permits . . . have been issued
as a matter of course, and that the discretionary power reserved in
[the revocation and suspension provisions] has never been
exercised.”) As outlined in the “Background” section and
“Standing” subsection, Plaintiffs have modified their speech
because of Measure B.
9
Plaintiffs’ Opposition to the Motion to Dismiss makes a
broad, although conclusory, argument that requiring a permit itself
is an invalid prior restraint. Docket No. 53 at 13-14. This
argument, was not made in Plaintiffs’ Preliminary Injunction brief.
(continued...)
14
1
1. Procedural Safeguards
2
Plaintiffs focus on the procedural safeguards relating to
3
revoking Measure B permits.10
4
entertainment, as Measure B does, must provide the following
5
procedural safeguards: “the licensor must make the decision
6
whether to issue the license within a specified and reasonable
7
time period during which the status quo is maintained, and there
8
must be the possibility of prompt judicial review in the event
9
that the license is erroneously denied.”
Prior restraints that target adult
FW/PBS, Inc. v. City of
10
Dallas, 493 U.S. 215, 228 (1990) modified on other grounds, City
11
of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 776
12
(2004) (a prior restraint targeting adult businesses must “assure
13
prompt judicial review of an administrative decision denying a
14
license”).
15
and revocations as well as license denials.”
16
City of San Diego, 183 F.3d 1108, 1114 (9th Cir. 1999).
17
suspensions and revocations differ from the denial of a license
18
application in that “preservation of the status quo means that the
19
suspension or revocation cannot be enforced, and the business is
20
allowed to continue to operate under its license,” until there has
21
been a judicial determination.
22
Department to revoke and suspend a permit, and once revocation or
“[T]hese considerations apply to license suspensions
Id.
4805 Convoy, Inc. v.
License
Measure B allows for the
23
9
24
25
26
27
28
(...continued)
Docket No. 55 at 8-10. Because Plaintiffs state a valid prior
restraint claim without this argument, the Court need not analyze
it now.
10
The procedural safeguards claims were raised in the
complaint, and argued, though only with respect to revocations and
suspensions, in Plaintiffs’ preliminary injunction motion. (Compl.
¶ 96; Docket No. 55 at 9:7-14 (citing provision of Measure B
regarding suspensions and revocations).
15
1
suspension has occurred, a permit holder must “cease filming any
2
adult film.”
3
are, thus, unconstitutional because they provide for suspensions
4
and revocations before a judicial determination.
5
§ 11.39.110 (D), (H).
These provisions of Measure B
2. Unbridled Discretion
6
Additionally, Government officials cannot have unbridled
7
discretion over permits that implicate First Amendment activity.
8
G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1082 (9th
9
Cir. 2006).
Here, in order to receive and keep a permit, the
10
following is required: pay for the permit, complete an
11
application, conduct blood-borne pathogen training, post the
12
permit on the worksite, and use condoms during anal and vaginal
13
sex.
14
are clear and do not leave much, if any, room for discretion.
15
Another Measure B provision, though, is more problematic.
16
No. 53 at 14:17-15:4.)11
§ 11.39.080-11.39.110; (see Compl. ¶ 58.)
These criteria
(Docket
17
11
18
19
20
21
22
23
24
25
26
27
28
Measure B states: “Upon successful completion of the permit
application process described in subsection A of this section, the
department shall issue an adult film production public health
permit to the applicant. The adult film production public health
permit will be valid for two years from the date of issuance,
unless revoked.” § 11.39.080(B). In analyzing another statute
that singled out adult entertainment, the Supreme Court held that
“the licensor must make the decision whether to issue the license
within a specified and reasonable time period.” FW/PBS, Inc. v.
City of Dallas, 493 U.S. 215, 228, 1990). Here, in light of the
obligation to, when possible, interpret an ordinance in a way that
maintains its constitutionality, the Court construes the word
“upon” to place sufficiently specific and reasonable time limit for
permit authorizations. See New York v. Ferber, 458 U.S. 747, 769
(1982) (discussing the importance of interpreting federal law to
preserve its constitutionality); see also Beaulieu v. City of
Alabaster, 454 F.3d 1219, 1232 (11th Cir. 2006) (essentially
applying the maxim to ordinances); Int'l Soc. for Krishna
Consciousness of Atlanta v. Eaves, 601 F.2d 809, 822 (5th Cir.
1979) (same). Because Webster’s (available at
http://www.merriam-webster.com/) defines “upon” to mean “on,”,
(continued...)
16
1
Measure B, also, provides that after an administrative
2
review, “[t]he Department may . . . modify, suspend, revoke or
3
continue all such action previously imposed upon a permittee
4
pursuant to this chapter or impose any fine imposed by law for
5
violations of this chapter or any other law or standards affecting
6
public health and safety, including but not limited to [certain
7
laws and regulations].”
8
under some circumstances, for the denial of permits when adult
9
film makers violate unnamed, undescribed “standards affecting
10
11
public health.”
§ 11.39.110(F).
Thus, Measure B allows,
This is unbridled discretion.12
For similar reasons, portions of § 11.39.110(E) are
12
unconstitutional.
13
health or safety is found or is reasonably suspected,” that
14
provision allows the department to “immediately suspend . . . [a]
15
permit, initiate a criminal complaint and/or impose any fine
If there is “any immediate danger to the public
16
17
18
19
20
21
22
23
24
25
26
27
28
11
(...continued)
Measure B indicates that applications will be immediately reviewed.
12
Plaintiffs also argue that the Department has unbridled
discretion in determining which blood-borne pathogen training class
meets Departmental approval. (Docket No. 53 at 15:5-11.) The
Court need not address this issue because Plaintiffs have otherwise
stated a valid prior restraint claim. (See Docket No. 55 at 8-10).
However, the proper issue is whether the Department has too much
discretion in terms of who receives a permit, not whether they have
too much discretion in selecting appropriate training classes.
G.K. Ltd., 436 F.3d at 1082 (9th Cir. 2006) (“The requirement of
sufficient direction for City officials seeks to alleviate the
threat of content-based, discriminatory enforcement that arises
where the licensing official enjoys unduly broad discretion in
determining whether to grant or deny a permit”) (internal quotation
marks and citation omitted). The appropriate way to challenge the
training course requirement, or any other requirement (including
the requirement to get a permit), is to do so on narrow tailoring
grounds. Berger, 569 F.3d at 1041. Since Plaintiffs do not argue
that the blood training course fails a narrow tailoring analysis,
the Court will not analyze the issue.
17
1
permitted by [Measure B].”
The provision also states: “Immediate
2
danger to the public health and/or safety shall include any
3
condition, based upon inspection findings or other evidence, that
4
can cause, or is reasonably suspected of causing, infection or
5
disease transmission, or any known or reasonably suspected
6
hazardous condition.”
7
limited to Measure B’s requirements, and it applies to conditions
8
“reasonably suspected” to be “suspected of causing” the
9
transmission of unnamed diseases.
This provision is too broad–it is not
The department is given no
10
guidance as what types or diseases or what types of transmission
11
methods § 11.39.110(E) applies.
12
to authorize revoking a permit if a cameraman were working with a
13
cold.
14
unconstitutional.
The discussed portions of
§ 11.39.110(E), therefore, are
3. Narrow Tailoring
15
16
Indeed, § 11.39.110(E) would seem
Pursuant to the most lenient scrutiny that Measure B could be
17
reviewed under, a prior restraint’s provisions must be narrowly
18
tailored such that they do “not burden substantially more speech
19
than is necessary to achieve a substantial government interest.”
20
Berger, 569 F.3d at 1041.
21
prohibits the production of any adult film by any entity that has
22
had a permit suspended or revoked.”
23
Interveners bear the burden of justifying a prior restraint’s
24
restrictions, because an alternative to revoking the permit
Plaintiffs allege that “Measure B also
(Compl. ¶ 58.)13
Because
25
26
27
28
13
A Measure B permit is issued to adult film producers. See
generally § 11.39.080(A). The permit extends for two years, and is
applicable to all films a producer makes. See § 11.39.080(B).
Thus, revocation or suspension means a permit holder cannot produce
any adult film.
18
1
completely would be revoking the permit only as to the offending
2
film, and because Interveners do not address Plaintiffs’ claim
3
that a total revocation is improper, Plaintiffs’ prior restraint
4
claim survives.
5
(holding that “the existence of obvious, less burdensome
6
alternatives is a relevant consideration in determining whether
7
the ‘fit’ between ends and means is reasonable”) (internal
8
quotation marks omitted); Docket No. 49 at 12-15 (ignoring
9
Plaintiffs’ revocation argument).
10
Id. at 1035 (discussing the burden), 1041
Plaintiffs claim that Measure B is not narrowly tailored
11
because, although the condom requirement applies only to vaginal
12
and anal sex, a Measure B permit is required to film much more.
13
permit is required for “adult films,” which are defined as “any
14
film, video, multimedia or other representation of sexual
15
intercourse in which performers actually engage in oral, vaginal,
16
or anal penetration, including, but not limited to, penetration by
17
a penis, finger, or inanimate object; oral contact with the anus
18
or genitals of another performer; and/or any other sexual activity
19
that may result in the transmission of blood and/or any other
20
potentially infectious materials.”14
21
have stated a claim on this issue.
A
The Court finds Plaintiffs
22
23
24
25
26
27
28
14
Although Plaintiffs have not raised the issue, the following
clause of the “adult films” definition is problematic: “and/or any
other sexual activity that may result in the transmission of blood
and/or any other potentially infectious materials.” The use of
“or” indicates that filmed “sexual activity” that “results in the
transmission of . . . other potentially infectious materials”
requires a Measure B permit. Sexual activity could mean many
things. Potentially, kissing could qualify, as saliva may contain
infectious materials. Therefore, the portion of adult film’s
definition discussed in this footnote is unconstitutionally
overbroad and vague.
19
1
As discussed, Measure B’s purpose is to prevent the spread of
2
STIs, and requiring condoms is the means by which Measure B seeks
3
to prevent their spread.
4
B’s “findings and declarations”), § 3 (“purpose and intent”).
5
Since Measure B only requires condoms for vaginal and anal sexual
6
intercourse, and since Measure B’s purpose is condoms-focused,
7
Plaintiffs have stated a claim that the permit requirement is not
8
narrowly tailored because it applies to adult films without
9
vaginal or anal sexual intercourse.15
(See Docket No. 58 Ex. B § 2 (Measure
10
F. Plaintiffs’ Fees Claim
11
Prior restraints may only impose permit fees if they are
12
revenue neutral, because the Government may not charge for the
13
privilege of exercising a constitutional right.
14
Pennsylvania, 319 U.S. 105, 113-14 (1943); Cox v. New Hampshire,
15
312 U.S. 569, 577 (1941).
16
applied this revenue-neutral rule to permit fees on adult
17
entertainment businesses.
18
v. Kenton Cnty. Fiscal Court, 515 F.3d 485, 510 (6th Cir. 2008).
19
The Eighth Circuit, though, declined to do so.
20
v. City of Coates, 284 F.3d 884, 890-891 (8th Cir. 2002).
21
analyzing the contrary Eighth Circuit authority, the Eleventh
See Murdock v.
The Sixth and Eleventh Circuits have
Fly Fish, 337 F.3d at 1314; 729, Inc.
Jakes, Ltd., Inc.
In
22
15
23
24
25
26
27
28
The Court rejects Plaintiffs’ argument in its preliminary
injunction brief that Measure B’s criminal and civil penalties are
not narrowly tailored, and, therefore, constitute an invalid prior
restraint. Prior restraint analysis looks to the requirements of
and processes associated with obtaining and keeping a permit, not
criminal penalties. Cf Conrad, 420 U.S. at 559 (“The presumption
against prior restraints is heavier-and the degree of protection
broader-than that against limits on expression imposed by criminal
penalties. Behind the distinction is a theory deeply etched in our
law: a free society prefers to punish the few who abuse rights of
speech after they break the law than to throttle them and all
others beforehand.”)
20
1
Circuit noted that even though nude dancing was at the “outer
2
perimeters of the First Amendment,” because the government could
3
not completely ban erotic dancing, the government cannot tax it
4
without limit.
5
the Eleventh Circuit’s logic and finds it applies to Measure B’s
6
fees.
7
Fly Fish, 337 F.3d at 1315.
The Court agrees with
Courts applying the revenue-neutral rule to adult
8
entertainment require the government to prove that revenues merely
9
cover “the costs of administering [the] licensing program.”
Id.
10
at 1314-15; 729, 515 F.3d at 510.
11
this case, $2,000-$2,500, is relatively minimal, the Court will
12
not assume that it is constitutionally permissible.
13
337 F.3d at 1315 (holding as unconstitutional a $1,250 fee per
14
adult business because the “City . . . conducted no real
15
accounting of the costs of administering its licensing program”).
16
Since the Complaint does not allege facts suggesting that the fees
17
are revenue neutral, the fees’ claim survives the motion to
18
dismiss.
19
later, that Interveners provide no evidence of revenue neutrality.
20
21
22
Even though the permit fee in
See Fly Fish,
The Court notes, for reasons that will be relevant
(See Docket No. 57 at 15:14-18.)
G. Plaintiffs’ Vagueness Claim
Under the void-for-vagueness doctrine, “legislatures [are
23
required] to set reasonably clear guidelines for law enforcement
24
officials and triers of fact in order to prevent arbitrary and
25
discriminatory enforcement.”
26
572-73 (1974).
27
narrowing state court interpretation, is capable of reaching
28
expression sheltered by the First Amendment, the doctrine demands
Smith v. Goguen, 415 U.S. 566,
“Where a statute’s literal scope, unaided by a
21
1
a greater degree of specificity than in other contexts.”
2
573.
3
lines” such that “men of common intelligence [are] not forced to
4
guess at the meaning of the criminal law.”
5
quotation marks and citations omitted).
6
Id. at
All that is required is that there be “reasonably clear
Id. at 574 (internal
Plaintiffs’ opposition brief and complaint conclusorily state
7
that some of the terms in Measure B are unconstitutionally vague.
8
(Docket No. 53 at 16:14-17; Compl. ¶¶ 71-77.)
9
sufficient reason to dismiss the claim.
10
This is a
See Iqbal, 556 U.S. at
678-79.
11
Measure B defines three of Plaintiffs’ challenged terms:
12
“adult film,” “exposure control plan,” and “producer of adult
13
film.”16
14
terms are undefined, they are given their “ordinary and natural
15
meaning,” and courts employ “general usage dictionaries to
16
determine” that meaning.
17
(9th Cir. 2013).
18
management-level employees” complete blood borne pathogen
19
training.
20
“principal” and “management-level employees” are unclear.
Several other terms are not defined.
When statutory
Castro v. Terhune, 712 F.3d 1304, 1312
Measure B requires that “principal and
§ 11.39.080.
Plaintiffs claim that the terms
Webster
21
16
22
23
24
25
26
27
28
For reasons discussed in the prior restraint analysis,
“adult film” must be narrowed in scope. After striking the
offending portions of that term’s statutory definition, and adding
no new terms, it would be defined as “any film, video, multimedia
or other representation of sexual intercourse in which performers
actually engage in vaginal or anal penetration by a penis.”
§
11.39.010.
“Exposure control plan” is defined as: “a written plan that
meets all requirements of Title 8 California Code of Regulations
sections 3203 and 5193, to minimize employees' risk of exposure to
blood or potentially infectious material.” § 11.39.050.
“Producer of adult film” is defined as: “any person or entity
that produces, finances, or directs, adult films for commercial
purposes.” § 11.39.075.
22
1
defines “principal,” in relevant part, as “a person who has
2
controlling authority or is in a leading position.”
3
defined as “the collective body of those who manage or direct an
4
enterprise,” and manage is defined as “to exercise executive,
5
administrative, and supervisory direction of .”
6
These terms are sufficiently clear.17
Management is
Plaintiffs also challenge the following terms: “commercial
7
8
purposes,” “reasonably suspected,” “hazardous condition,” and
9
“interference.”
(Docket No. 53 at 16:15-16.)
Because Plaintiffs
10
do not analyze these terms’ meaning or their potential for
11
confusion, for purposes of this Motion the Court finds that they
12
are not vague.
13
I. Plaintiffs’ Due Process Claim
14
Plaintiffs assert that Measure B violates their due process
15
rights.
The Fourteenth Amendment prohibits the deprivation “of
16
life, liberty, or property without due process of law.”
17
process requires “some form of hearing before an individual is
18
finally deprived of [a protected] interest.”
19
Eldridge, 424 U.S. 319, 333 (1976).
20
analyzed under the Mathews v. Eldridge weighing test.
21
335.
22
their due process claims generally dismiss the review procedures
23
to which license holders and applicants are entitled under Measure
24
B.
25
Dist. L.R. 7-5 (moving papers must provide “a brief but complete
26
memorandum in support thereof and the points and authorities upon
Matthews v.
Due process claims should be
See id. at
However, Plaintiffs do not engage in such a weighing, and
(Compl. ¶¶ 91-98); § 11.39.110(B),(D),(E)(2); see also Cent.
27
17
28
Due
All definitions are available at
http://www.merriam-webster.com/.
23
1
which the moving party will rely.”).
2
dismissal of Plaintiffs’ due process claims, with one exception
3
discussed below.
4
largely duplicate of their prior restraint arguments.
5
The Court, therefore, GRANTS
Regardless, Plaintiffs’ due process arguments
However, Plaintiffs make a Fourth Amendment challenge in the
6
due process section of the Complaint that warrants further
7
consideration.
8
authorizes an unconstitutional system of warrantless searches and
9
seizures.
(Compl. ¶ 95.)18
Plaintiffs claim that Measure B
In a closely regulated industry, administrative
10
warrantless searches are permitted so long as the following
11
conditions are met: (1) “[t]here is [a] ‘substantial’ government
12
interest that informs the regulatory scheme pursuant to which
13
inspection is made,” (2) “warrantless inspection is necessary to
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18
It is an open question whether a facial challenge of an
administrative search scheme on Fourth Amendment grounds is
permissible. 832 Corp. v. Gloucester Twp., 404 F. Supp. 2d 614,
620 (D.N.J. 2005) (noting the issue is unresolved, but assuming
that such a challenge is allowable). In preliminarily enjoining an
ordinance that permitted warrantless administrative searches of
“Adult-Oriented Businesses,” a district court in this circuit
noted:
There is arguably a question as to whether a party can
assert a facial challenge to a statute permitting
warrantless administrative searches. See, e.g., S & S.
Pawn Shop Inc. v. City of Del City, 947 F.2d 432, 439-40
(10th Cir.1991) (identifying the issue, but declining to
decide it). Despite some hesitation, the court
entertains such a challenge here because the ordinances
vest too much discretion in City officials conducting the
inspection to qualify as a valid administrative
inspection scheme. See City of Chicago v. Morales, 119
S.Ct. 1849, 1999 WL 373152 *15 (June 10, 1999) (Breyer,
J., Concurring) (“The ordinance is unconstitutional, not
because a policeman applied this discretion wisely or
poorly in a particular case, but rather because the
policeman enjoys too much discretion in every case”).
Le v. City of Citrus Heights, No. CIV.S-98-2305WBS/DAD, 1999 WL
420158, at *6 n.6 (E.D. Cal. June 15, 1999). Finding Le’s facts
sufficiently analogous and its reasoning persuasive, this Court
concludes a facial challenge is permissible.
24
1
further the regulatory scheme,” and (3) the “inspection program,
2
in terms of certainty and regularity of its application, must
3
provide a constitutionally adequate substitute for a warrant”
4
(i.e. “it must advise the owner of the commercial premises that
5
the search is being made pursuant to the law and has a properly
6
defined scope, and it must limit the discretion of the inspecting
7
officers”).
8
(citations omitted).
9
limits the discretion of the inspectors, we have observed that it
New York v. Burger, 482 U.S. 691, 703 (1987)
“In addition, in defining how a statute
10
must be carefully limited in time, place, and scope.”
11
(internal quotation marks and citation omitted).
12
Id.
Plaintiffs’ Fourth Amendment allegations and briefing focus
13
on Burger’s requirement that administrative searches be limited in
14
time, place, and scope.
15
states:
17
18
19
20
22
23
24
25
26
27
Specifically, Measure B
The county health officer may enter and inspect any
location suspected of conducting any activity regulated
by this chapter, and, for purposes of enforcing this
chapter, the county health officer may issue notices and
impose fines therein and take possession of any sample,
photograph, record or other evidence, including any
documents bearing upon adult film producer’s compliance
with the provision of the chapter. Such inspections may
be conducted as often as necessary to ensure compliance
with the provisions of this chapter.
16
21
(Compl. ¶ 95.)
§ 11.39.130.
The “any location” language of § 11.39.130 violates
the Fourth Amendment.
In upholding warrantless administrative
searches, courts emphasize the limited nature of what may be
searched.
United States v. Delgado, 545 F.3d 1195, 1203 (9th Cir.
2008) (holding that a statute was constitutional in part because
it was “limited to commercial vehicles,”); Burger, 482 U.S. at 711
(emphasizing that the statute was limited to “vehicle dismantling
28
25
1
business[es]”).
Given that adult filming could occur almost
2
anywhere, Measure B would seem to authorize a health officer to
3
enter and search any part of a private home in the middle of the
4
night, because he suspects violations are occurring.
5
unconstitutional because it is akin to a general warrant.
6
Therefore, the Court DENIES dismissal of Plaintiffs’ Fourth
7
Amendment claim.
8
Cir. 1985) (holding that a statute “authoriz[ing] any officer,
9
employee, or agent of the Department to enter and inspect any
This is
See Rush v. Obledo, 756 F.2d 713, 717, 722 (9th
10
place providing personal care, supervision, and services at any
11
time, with or without notice, to secure compliance with, or to
12
prevent a violation of, any applicable statute” unconstitutional
13
because it “permitt[ed] general searches at any time of any place
14
providing care and supervision to children”); United States v.
15
4,432 Mastercases of Cigarettes, More Or Less, 448 F.3d 1168, 1180
16
(9th Cir. 2006) (stating that the procedural safeguards of
17
warrantless administrative searches that implicate homes must be
18
strong and citing Rush as “str[iking] down as unconstitutional a
19
regulation that enabled warrantless searches of family-home day
20
care facilities because it failed to place any limits on the time
21
of searches, the area that could be searched, or the regularity of
22
searches”).19
23
IV. Preliminary Injunction Analysis
24
Because Plaintiffs’ First Amendment claim regarding Measure
25
B’s condom requirement is unlikely to succeed on the merits, the
26
19
27
28
Under very different circumstances, a narrow and constrained
warrantless administrative search of a home is permissible. See
Rush, 756 F.2d at 717 (upholding such a search when regulations
limited a statute’s reach).
26
1
Court DENIES a preliminary injunction on that issue.
As detailed
2
below, the Court GRANTS a preliminary injunction on Plaintiffs’
3
other claims that survived the motion to dismiss.
4
A. Plaintiffs’ First Amendment Claim
5
The First Amendment claim, which focuses on narrow tailoring
6
(and specifically testing as an adequate alternative to condoms),
7
is unlikely to succeed on the merits.
8
First Amendment analysis on arguing that Measure B’s condom
9
requirement should be reviewed under strict scrutiny.
Plaintiffs focus their
(Docket No.
10
55 at 7-8.)
However, for the reasons discussed in the motion to
11
dismiss analysis, intermediate scrutiny should be employed.
12
Plaintiffs also make a narrow tailoring argument.
Id. at
13
5:3-6.
14
B targets “are real, not merely conjectural, and that [Measure B]
15
will in fact alleviate those harms in a direct and material way.”
16
Turner I, 512 U.S. at 664–65.
17
Health Officer at the Los Angeles County Department of Public
18
Health, has stated:
19
20
21
22
23
24
25
26
27
Interveners have presented evidence that the harms Measure
Jonathan Fielding, the Director and
Since 2004 DPH received reports of 2,396 cases of
Chlamydia (CT), 1389 cases of gonorrhea (GC), and five
syphilis cases among AFI performers; 20.2% of performers
diagnosed with STD had one or more repeat infections
within a one year period. Between 2004 and 2008, repeat
infections were reported for 25.5% of individuals. Due
to the failure to routinely screen for rectal and oral
pharyngeal infections, a sustained high level of endemic
disease among AFT workers persists. Furthermore, these
disease rates and reinfection rates are likely to be
significantly underestimated as rectal and oral
screening is not done routinely and these anatomic sites
are likely to be a reservoir for repeat reinfection.
Analyses of2008 data also indicated that AFI performer
experience significantly higher rates of infection (20%)
than the general public (2.4%) or in the area of the
County (SPA 6) experiencing the highest rates of STDs
(4.5%).
28
27
1
2
3
4
5
6
7
Data is less clear for HIV since occupation is not
reported in HIV/AIDS reports. Since 2004, AIM has
reported 25 cases of HIV. However, it is difficult to
confirm the number of actual performers infected with
HIV/AIDS as not all those tested are current performers
and may have other roles in tl1e AFI, or are partners of
an AFI performer, or may otherwise be referred to AIM
for testing. AIM claims that a minority of the 25 cases
are performers, but even if this is accurate, it is
reasonable to assume that some of the remaining 25
infected individuals were tested because they wished to
work in the AFI in Los Angeles or were partners of AFI
performers.
8
(Docket No. 58-1 Ex. A at 2.)
Plaintiffs, by contrast, have
9
presented evidence from individuals in the adult film industry,
10
but not in the public health or medical profession, who claim
11
testing is so effective and universal that condoms are
12
unnecessary.
13
Interveners’ evidence are in tension.
14
the Department of Public Health’s detailed explanation compelling,
15
especially in light of its unique role in protecting the
16
community’s health.
17
(See, e.g., Hirsch Decl. ¶¶ 8-16).
Plaintiffs’ and
However, the Court finds
Interveners’ evidence also indicates that Measure B does not
18
“burden substantially more speech than is necessary to further the
19
government's legitimate interests.”
20
Measure B “need not be the least restrictive or least intrusive
21
means available.”
22
evidence indicates that testing for STIs has proven insufficient
23
to prevent their spread.
24
testing is Plaintiffs’ proffered alternative, and because evidence
25
indicates it may be ineffective, requiring condoms is a
26
permissible way (at least at this stage) to target and prevent the
Turner I, 512 U.S. at 665.
Berger, 569 F.3d at 1041.
Here, Interveners’
(Docket No. 58-1 Ex. A at 2.)
27
28
28
Because
1
spread of STIs.
For these reasons, Plaintiffs’ claim challenging
2
the condom requirement is not likely to succeed on the merits.20
3
B. Plaintiffs’ Remaining Claims
4
Plaintiffs’ claims concerning the following Measure B
5
provisions are likely to succeed on the merits: the fees
6
provision, the administrative search provision, and the prior
7
restraint provisions explicitly found to have survived the motion
8
to dismiss.
9
concerning Measure B’s broad revocation policy (i.e. that a
The fees provision and the prior restraint provision
10
revoked permit means a producer cannot work on any adult films,
11
instead of simply the offending film) are likely to succeed on the
12
merits because Interveners’ have offered no evidence that these
13
provisions are narrowly tailored.
14
(not discussing the broad revocation policy), 15:14-18 (faulting
15
Plaintiffs for providing no evidence concerning the fee’s
(See Docket No. 57 at 14-15
16
20
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs’ over and under inclusive arguments also bear on
narrow tailoring. However, these arguments fail to show that
Plaintiffs are likely to succeed on the merits. Plaintiffs fault
Measure B for not applying generally to the entire population of
Los Angeles County. (Docket No. 55 at 13:14-16.) However, Measure
B would be patently unconstitutional if it applied to individuals
having sex in a private place for non-commercial purposes.
Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas,
539 U.S. at 562 (2003). Sex in public places appears to be already
prohibited by public decency laws. See Los Angeles County Code §
13.22.020. Plaintiffs’ also claim that Measure B “applies only to
adult films produced for a commercial purpose, to the exclusion of
non-commercial films whose performers are exposed to risks
(accepting arguendo the Measure’s assumptions) that are the same as
those for performers in commercial adult entertainment.” (Docket
No. 55 at 13:14-16.) But Plaintiffs provide no evidence about
these “non-commercial” films, such as the percent of adult films
that are non-commercial and that could be regulated without
violating the type of privacy rights expressed in Griswold and
Lawrence. Besides, intermediate scrutiny does not require a
perfect fit, Berger, 569 F.3d at 1041, and at this stage
Interveners have provided evidence that the adult film industry is
uniquely problematic in the spread of STIs. (Docket No. 58-1 Ex.
A.)
29
1
reasonableness, but providing no evidence that the fee is revenue
2
neutral)); Turner I, 512 U.S. at 664–65 (indicating that
3
Interveners bear the burden of proving narrow tailoring).
4
remaining provisions are likely to succeed on the merits because,
5
as discussed previously, Measure B’s text indicates they are
6
unconstitutional.
7
The
Once a Plaintiff shows that a constitutional rights claim is
8
likely to succeed, the remaining preliminary injunction factors
9
weigh in favor of granting an injunction.
Melendres v. Arpaio,
10
695 F.3d 990, 1002 (9th Cir. 2012))([T]he deprivation of
11
constitutional rights unquestionably constitutes irreparable
12
injury. . . .
13
the violation of a party's constitutional rights.”) (internal
14
quotation marks and citations omitted); Klein v. City of San
15
Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (“The balance of
16
equities and the public interest thus tip sharply in favor of
17
enjoining the ordinance.
18
preliminary injunctions to a plaintiff like Klein who is likely to
19
succeed on the merits of his First Amendment claim, we see no
20
reason to remand for further proceedings with respect to Klein's
21
motion in this case.”)
[I]t is always in the public interest to prevent
As our caselaw clearly favors granting
22
C. Severability
23
Whether Measure B’s offending provisions are severable is a
24
“a matter of state law.”
Leavitt v. Jane L., 518 U.S. 137, 139
25
(1996).
26
whenever possible to preserve the validity of the remainder of the
27
statute.”
28
1384 (1992).
“Invalid provisions of a statute should be severed
Briseno v. City of Santa Ana, 6 Cal. App. 4th 1378,
“The California Supreme Court has held that there
30
1
are three criteria for severability under California law: the
2
provision must be grammatically, functionally, and volitionally
3
separable.”
4
1111, 1114 (9th Cir. 2003).
5
depends on whether the remainder . . . is complete in itself and
6
would have been adopted by the legislative body had the latter
7
foreseen the partial invalidity of the statute . . . or
8
constitutes a completely operative expression of the legislative
9
intent . . . [and is not] so connected with the rest of the
Valley Outdoor, Inc. v. Cnty. of Riverside, 337 F.3d
However, “[t]he final determination
Id. (quoting Calfarm Ins. Co. v.
10
statute as to be inseparable.”
11
Deukmejian, 48 Cal.3d 805, 821 (1989).
12
As an initial matter, Measure B contains an unambiguous
13
severability clause: “If any provision of this Act, or part
14
thereof, is for any reason held to be invalid or unconstitutional,
15
the remaining provisions shall not be affected, but shall remain
16
in full force and effect, and to this end the provisions of the
17
Act are severable.”
18
establishes that the voters wanted Measure B, even if portions
19
were found unconstitutional, to survive, if at all possible.
20
“Although not conclusive, a severability clause normally calls for
21
sustaining the valid part of the enactment.”
22
Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821 (1989)
Docket No. 58 Ex. B § 8.21
This clause
23
“An enactment passes the grammatical test where the language
24
of the statute is mechanically severable, that is where the valid
25
and invalid parts can be separated by paragraph, sentence, clause,
26
phrase or even single words.”
Barlow v. Davis, 72 Cal. App. 4th
27
21
28
It is unclear where this severability clause was codified
within the Los Angeles County Code.
31
1
1258 (1999).
2
its relevant provisions.
3
concerning revoking and suspending Measure B permits.22
4
The permit fee requirement is easily separable from
The same is true of the provisions
The provision authorizing administrative searches is self
5
contained, so enjoining it creates no grammatical issues.
6
11.39.130.
7
§
In § 11.39.110(F), which concerns the Department’s authority
8
to revoke a permit and levy other penalties against a permittee
9
after an administrative review,
the following words can be
10
stricken without any grammatical problems: “modify, suspend,
11
revoke or any other laws or standards affecting public health and
12
safety, including but not limited to the Los Angeles County Code,
13
the California Health and Safety Code, the blood borne pathogen
14
standard, California Code of Regulations Title 8, section 5193 or
15
the exposure control plan of the permittee, or any combination
16
thereof, or for interference with a county health officer's
17
performance of duty.” 23
The provision requiring permits for
18
22
19
20
21
22
Had the Court only enjoined the revocation and suspension
provisions of Measure B on grounds that the status quo is disrupted
before judicial review, the Court would have only enjoined the
County from “enforcing a license suspension or revocation for
ninety days after an administrative appeal becomes final, the time
allowed for filing a writ of administrative mandamus under the
California statutory scheme.”
Convoy, 183 F.3d at 1116.
23
23
24
25
26
27
28
That is to say, § 11.39.110(F) paragraph makes grammatical
sense when read as follows: “The department may, after an
administrative review or waiver thereof continue all such action
previously imposed upon a permittee pursuant to this chapter or
impose any fine imposed by law for violations of this chapter.”
Thus, what remains of § 11.39.110(F) is the Department’s authority
to initiate fines or criminal charges, as provided for in Measure B
for Measure B violations only, against Measure B violators. Of
course, this order affects no other provision of law outside of
Measure B.
Although the term “modify” has not previously been
discussed, it is also unconstitutional as its vagueness permits
(continued...)
32
1
anything other than vaginal or anal sexual intercourse can be
2
similarly successfully edited.24
3
emergency fines and revocations, § 11.39.110(E), is not completely
4
self contained, as it continues to § 11.39.110(E)(1)-(2).
5
Therefore, subsections (1) and (2) of § 11.39.110(E) are also be
6
enjoined.
7
The provision concerning
Under the functionality test, the Court must decide whether
8
Measure B remains “operational” without the offending language.
9
Valley Outdoor, 337 F.3d at 1114.
Here, adult film actors must
10
still use condoms.
11
permit may not be modified, suspended, or revoked, fines and
12
criminal charges may still be brought against offenders, as
13
described in footnote 23.
14
15
16
A permit is still required.
Although the
While administrative searches cannot occur, nothing prevents
law enforcement from obtaining a warrant to enforce Measure B.
Regarding fees, since there is no evidence that Measure B’s
17
fees are revenue neutral, there is no reason to believe the
18
Department’s Measure B duties cannot be performed without fees–or
19
performed at least until the fees’ defect is cured, either by
20
enacting a new, constitutional ordinance or providing this Court
21
with evidence of revenue neutrality.
22
City of Oak Grove, No. CIV.A. 5:02CV-252-R, 2005 WL 2333636, at
See Wal Juice Bar, Inc. v.
23
24
25
26
23
(...continued)
unbridled discretion, and, given its undefined scope, allows the
Department to effectively suspend or revoke a license. See G.K.
Ltd., 436 F.3d 1082 (discussing unbridled discretion).
24
27
28
§ 11.39.010 then reads: “An ‘adult film’ is defined as any
film, video, multimedia or other representation of sexual
intercourse in which performers actually engage in vaginal, or anal
penetration by a penis.”
33
1
*5-6 (W.D. Ky. Sept. 22, 2005) (deciding that a license fee for
2
sexually-oriented businesses was unconstitutional, but stating
3
that the fee was severable in part because the ordinance remained
4
functional without the fee provision).
5
B remains operational.
6
For these reasons, Measure
The volitional test asks “whether it can be said with
7
confidence that the electorate’s attention was sufficiently
8
focused upon the
9
separately considered and adopted them in the absence of the
parts to be severed so that it would have
Gerken v. Fair Political Practices Com., 6
10
invalid portions.”
11
Cal. 4th 707, 714-15 (1993).
12
volitional test when “it seems eminently reasonable to
13
suppose that those who favored the proposition would be happy
14
to achieve at least some substantial portion of their
15
purpose.”
16
purpose of preventing the spread of STIs and for the reasons
17
discussed above in the operational analysis, it seems that those
18
who “favored [Measure B] would be happy to achieve” what
19
remains of it.”
20
V. Conclusion
21
Id. at 715.
A ballot initiative passes the
Here, in light of Measure B’s stated
Id.
As set forth above, this Court GRANTS in part and DENIES in
22
part Interveners’ Motion to Dismiss, and GRANTS in part and DENIES
23
on part Plaintiffs’ Motion for a Preliminary Injunction.
24
In light of this Order, Plaintiffs’ motion for judgment on
25
the pleadings is vacated.
26
IT IS SO ORDERED.
27
Dated:
(Docket No. 64.)
August 16, 2013
DEAN D. PREGERSON
United States District Judge
28
34
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