Cooper et al v. Clark County Nevada et al
Filing
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ORDER Granting 22 Motion to Dismiss. Signed by Judge Kent J. Dawson on 6/30/2011. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DAVID COOPER, et al.,
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Plaintiffs,
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v.
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Case No. 2:10-CV-0763-KJD-PAL
CLARK COUNTY NEVADA, et al.,
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ORDER
Defendants.
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Currently before the Court is Defendants’ Motion to Dismiss (#22). Plaintiffs filed an
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Opposition (#29), to which Defendants filed a Reply (#33).
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I. Background
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Plaintiffs filed their First Amended Complaint (#8) on September 16, 2010. Plaintiffs’ claims
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are brought pursuant to 42 U.S.C. § 1983 and in pertinent part, allege vagueness and overbreadth of
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Clark County Code 30.08.030 and violations of due process and equal protection against Clark
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County and its employees. Defendants seek to dismiss Plaintiffs’ complaint for failure to state a
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claim and lack of subject matter jurisdiction.
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In January 2008, Plaintiff David Cooper (“Cooper”) purchased EFJ, LLC, a Nevada
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corporation with business premises at 953 E. Sahara, Las Vegas, Nevada. As Clark County does not
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permit the transfer of business licenses from one person to another when more than 50% of the entity
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changes ownership, Cooper applied for five business licenses for EFJ on or about February 13, 2008.
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The application requested business licenses for admission fees, gifts/novelties, book sales, video
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sales/rentals, and a restaurant. On or about April 1, 2008, Cooper applied for tobacco and banquet
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business licenses under the business name Interactive Media Communications, LLC. After
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purchasing the corporation, Cooper allegedly spent time and money renovating the space to enhance
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its visibility and use as a swinger’s club.
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In April 2008, Cooper provisionally opened the business under the name of “Sextacy”,
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pending the approval of the business licenses. On or about June 26, 2008, Cooper received notice
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that his business license applications were denied based on false and misleading statements pursuant
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to Clark County Code 6.04.090(g) and for failure to comply with restaurant license 6.12.874. Cooper
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appealed the denial of the business licenses in July 2008. On September 9, 2008, the Clark County
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Board of Commissioners (“Board”) voted to uphold the denial of Cooper’s business license
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application. In its holding, the Board stated that it was clear that Cooper was attempting to open a
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swinger’s club, or sexually oriented business, and that Clark County does not permit such business,
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thereby making the licenses an impossibility.
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II. Legal Standard
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Pursuant to Fed. R. Civ. P. 12(b)(6), a court may dismiss a Plaintiff’s complaint for “failure
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to state a claim upon which relief can be granted.” A properly pled complaint must provide “a short
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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
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8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require
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detailed factual allegations, it demands more than “labels and conclusions” or a “formulaic recitation
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of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Papasan
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v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise above the
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speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint
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must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal,
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129 S. Ct. at 1949 (internal citation omitted).
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In Iqbal, the Supreme Court recently clarified the two-step approach district courts are to
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apply when considering motions to dismiss. First, the Court must accept as true all well-pleaded
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factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of
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truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory
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statements, do not suffice. Id. at 1949. Second, the Court must consider whether the factual
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allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially
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plausible when the plaintiff’s complaint alleges facts that allow the court to draw a reasonable
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inference that the defendant is liable for the alleged misconduct. Iqbal, 129 S. Ct. at 1949. Where
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the complaint does not permit the court to infer more than the mere possibility of misconduct, the
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complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal quotation
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marks omitted). When the claims in a complaint have not crossed the line from conceivable to
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plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.
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A jurisdictional attack pursuant to Fed. R. Civ. P. 12(b)(1) can be made in one of two ways.
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The motion can make a facial challenge, which asserts that the allegations contained in a complaint
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are insufficient on their face to invoke federal jurisdiction, or it can make a factual attack, which
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disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.
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Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004). In the latter case, the judge may
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consider outside evidence and resolve factual disputes. Berardinelli v. Castle & Cooke, Inc., 587
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F.2d 37, 39 (9th Cir.1978); See also, Augustine v. United States, 704 F.2d 1074, 1077 (9th
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Cir.1983) (holding that unlike a motion to dismiss for failure to state a claim, under Fed. R. Civ. P.
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12(b)(6), a court can hear outside evidence regarding a motion to dismiss for lack of subject matter
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jurisdiction). Although the defendant is the moving party on a motion to dismiss, plaintiff bears the
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burden of establishing subject matter jurisdiction. Hexom v. Oregon Dept. of Transp., 117 F.3d
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1134, 1135 (9th Cir. 1999).
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Here, Plaintiffs have averred the existence of federal jurisdiction pursuant to 43 U.S.C. §§
1331 and 1343, since they bring their claims under 28 U.S.C. § 1983.
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III. Analysis
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A. Due Process
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Plaintiffs’ First Cause of Action is for alleged violations of due process. The Fourteenth
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Amendment to the Constitution prohibits a state from depriving “any person of life, liberty, or
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property without due process of law.” U.S. Const., Amend. XIV.
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1. Liberty Interest
The Supreme Court has long held that sexual activity inside businesses which are open to the
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public is not protected by the right to privacy. See Paris Adult Theater I v. Slaton, 413 U.S. 46, 65-
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66 (1973). The Supreme Court has “declined to equate the privacy of the home . . . with a ‘zone’ of
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‘privacy’” that follows a person “wherever he goes.” Id. at 66. The Ninth Circuit has “decline[d] to
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hold [that] the ‘right’ to unobserved masturbation in a public theater is ‘fundamental’ or ‘implicit in
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the concept of ordered liberty.’” Ellwest Stereo Theaters, Inc. v. Wenner, 681 F.2d 1243, 1248 (9th
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Cir. 1982).
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Here, Plaintiffs First Amended Complaint is devoid of any claim that Sextacy is or was
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intended to be a private organization and the Court will not supply this assertion for them. See
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Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459
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U.S. 519, 526 (1983)(district court need not assume that plaintiff can prove facts different from those
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alleged in the complaint). Nothing in Plaintiffs’ complaint remotely suggests that Sextacy would
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have operated as a private club or that Sextacy was an extension of the home. To the contrary, the
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restaurant license for which Plaintiffs applied requires that Plaintiffs’ business be public. In pertinent
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part, the Restaurant, Category 2 License for which Plaintiffs applied is defined in the Clark County
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Business License Code as “any space in a suitable building kept, used, maintained, advertised or held
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out to be a public place where hot, complete meals are prepared and cooked on the premises . . . .”
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Clark County Code § 6.12.874 (emphasis added). Plaintiffs also claim that the “Fantasy Social Club
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and the Hushh Club . . . are also the same type of businesses as Sextacy” (Pls.’ Compl. ¶ 34.).
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Inherent in that argument is the admission that Plaintiffs’ application for the other licenses is a
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subterfuge or facade for a sexually oriented business.
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Furthermore, any claim alleging that Defendants’ denial of business license applications
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infringes on a First Amendment protected expression is inapplicable here. The Supreme Court held
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that instances of sexual acts in a public store “[manifest] absolutely no element of protected
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expression.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986). Since Plaintiffs have failed to
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plead that Sextacy was intended to be a private organization or claim a violation of protected
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expression, and because all claims and evidence provided by Plaintiffs show that it was intended to
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be open to the general public, Plaintiffs’ liberty interest claim is not facially plausible.
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2. Property Interest
The Supreme Court has held that “to have a property interest in a benefit, a person must
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clearly have more than an abstract need or desire [and] more than a unilateral expectation to it. He
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must, instead, have a legitimate claim of entitlement to it.” Town of Castle Rock, Colorado v.
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Gonzales, 545 U.S. 748, 756 (2005). “A benefit is not a protected entitlement if government
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officials may grant or deny it in their discretion.” Id. The Ninth Circuit held that a constitutionally
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protected property interest is created only if “the governing statute compels a result ‘upon
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compliance with certain criteria, none of which involve the exercise of discretion by the reviewing
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body. . . .’” Shanks v. Dressel, 540 F.3d 1082, 1091 (9th Cir. 2008). “Whether an expectation of
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entitlement is sufficient to create a property interest will depend largely upon the extent to which the
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statute contains mandatory language that restricts the discretion of the decisionmaker.” Doyle v. City
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of Medford, 606 F.3d 667, 672-673 (9th Cir. 2010).
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Plaintiffs’ property interest claim fails because the applicable code provisions do not contain
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mandatory language that significantly constrains Clark County’s discretion. To the contrary, the
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plain language of the Clark County Code suggests that Clark County does have discretion to approve
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or deny licenses. In pertinent part, the Code states that the Board of County Commissioners may
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deny a business license “due to the applicant’s failure to comply with any of the provisions of the
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code.” Clark County Code § 6.04.090(a)(emphasis added). The section of the Code that was used to
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deny Plaintiffs’ licenses states that the Board may deny a business license if the applicant has made
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“false, misleading or fraudulent statements with respect to any material fact contained in the business
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license application and/or supporting documentation.” § 6.04.090(g)(emphasis added). Consistent
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with this analysis, the Nevada Supreme Court has invariably held that the granting, withholding, or
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revoking of similar licenses is discretionary on the Board’s part. See Cohen v. State of Nevada, 930
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P.2d 125, 127 (1997)(stating that generally the granting of a gaming license is a discretionary act);
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Esmeralda County v. Grogan, 94 Nev. 723, 725 (1978)(stating that the Court has consistently held
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that the granting, withholding, or revoking of a liquor license is a discretionary act). As the Board’s
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discretion is permitted and there exists no mandatory language that restricts the Board’s discretion,
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Plaintiffs failed to state a property interest claim. The Court finds that Plaintiffs’ First Cause of
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Action is not facially plausible, and is therefore dismissed.
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B. Equal Protection Claim
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In their Second Cause of Action, Plaintiffs allege violations of equal protection based on
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Defendants’ denial of Plaintiffs’ business license application for Sextacy. The Fourteenth
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Amendment’s Equal Protection Clause stipulates that no state shall “deny to any person within its
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jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. The Equal Protection
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Clause requires that “all persons similarly situated should be treated alike.” City of Cleburne v.
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Cleburne Living Center, 473 U.S. 432, 439 (1985). In order to state an equal protection claim based
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on selective enforcement of law, a plaintiff must “show that the law is applied in a discriminatory
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manner or imposes different burdens on different classes of people.” Freeman v. City of Santa Ana,
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68 F.3d 1180, 1187 (9th Cir. 1995). To meet this burden, plaintiff “must identify a ‘similarly
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situated’ class against which plaintiff’s class can be compared.” Id. Then, if the selective
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enforcement “does not implicate a fundamental right or a suspect classification, the plaintiff can
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establish a ‘class of one’ equal protection claim by demonstrating that [he] ‘has been intentionally
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treated differently from others similarly situated and that there is no rational basis for the difference
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in treatment’”. Squaw Valley Dev. Co. V. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004)(quoting
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Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)(overruled on other grounds)). The
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Plaintiff bears the burden of presenting evidence to establish these elements as a “class of one”
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claim. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).
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1. Similarly Situated
Plaintiffs fail to plead that they have been treated differently from other similarly situated
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businesses. Unlike Plaintiffs, the other swinger’s clubs to which Plaintiffs compare themselves did
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not make false and misleading statements on their applications for business licenses. Plaintiffs
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confuse business license application approval with subsequent enforcement action against existing
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businesses. Plaintiffs claim that “the Defendants . . . have never taken any action to revoke or
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rescind the licenses of any other swinger’s clubs in Clark County, despite being on notice of their
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existence” and that “Defendants . . . have knowingly permitted other similarly situated businesses to
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operate swinger’s clubs with the same licenses sought by Plaintiffs.” (Pls.’ First Amended Compl.
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¶¶ 55, 56.) Even if this is true, it does not show different treatment from others who are similarly
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situated. “Knowingly permitting other clubs to operate” is not synonymous with knowingly granting
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business licenses to applicants who provide false and misleading statements about their businesses.
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Plaintiffs were denied their licenses for making false and misleading statements. Plaintiffs have
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made no claim that the Board knew at the time of licensing that the other clubs had made false or
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misleading statements or would violate their licenses and operate as swinger’s clubs. Plaintiffs
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attempt to show differential treatment is unavailing.
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2. Rational Basis
Here, a rational basis exists for Clark County’s denial of Plaintiffs’ business license
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applications. The Clark County Code provides that “all business license applications . . . may be
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denied by the director or the board, as applicable, if the applicant has made false, misleading or
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fraudulent statements with respect to any material fact contained in the business license application
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and/or supporting documentation.” § 6.04.090(g). Plaintiffs’ applications were denied because they
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intended to operate a business that is patently different than the types of businesses for which they
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applied. The letter from the business license director, referenced in Plaintiffs’ First Amended
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Complaint (#8) and attached as Exhibit 1 in Plaintiffs’ original Complaint (#1), furnishes two
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reasons for the denial: First, for making false and misleading statements with respect to material facts
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contained in the business license application and second, for failure to comply with required criteria
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for restaurants. In their complaint, Plaintiffs’ continually state that they sought to open a swinger’s
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club and never allege any intent to open a restaurant or gift/novelty shop. (Pls.’ First Amended
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Coml. ¶ 25.); (Pls.’s Opp. at 1.) Plaintiffs do not compare themselves to other restaurants or
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gift/novelty shops but rather to other obviously sex-related swinger’s clubs. (Pls.’ First Amended
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Compl. ¶ 34); (Pls.’ Req. for Jud. Notice Exh. 5.) Plaintiffs’ complaint shows an intent to operate a
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business manifestly different from the businesses for which they applied. Therefore, the Court finds
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that a rational basis clearly existed for Clark County’s denial of Plaintiffs’ business licenses.
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Since the Court finds that a rational basis for Defendants’ denial exists and that Plaintiffs
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failed to factually plead that other alleged swinger’s club businesses are similarly situated to
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Plaintiffs’, Plaintiffs’ Second Cause of Action is not facially plausible and is therefore dismissed.
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C. Overbreadth Claim
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In their Fifth Cause of Action, Plaintiffs allege that the definition of “specified sexual
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activities” in Section 30.08.030 of the Clark County Code is unconstitutionally broad. “(U)nder the
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Supreme Court’s ‘overbreadth’ doctrine, a plaintiff may challenge an overly broad statute or
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regulation by showing that it may inhibit the First Amendment rights of individuals who are not
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before the court.” 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1112 (9th Cir. 1999).
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“The overbreadth doctrine is based on the observation that ‘the very existence of some broadly
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written laws has the potential to chill the expressive activity of others not before the court.’” Id. In
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order for a plaintiff to have overbreadth standing, “an individual must present more than
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‘(a)llegations of a subjective ‘chill’. ‘There must be a ‘claim of specific present objective harm or a
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threat of specific future harm.’” Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975).
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Here, Plaintiffs fail to plead adequate facts under the Iqbal standard to establish a claim using
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the overbreadth doctrine. See Iqbal, 129 S. Ct. 1949 (holding that Rule 8 demands more than “labels
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and conclusions” or a “formulaic recitation of the elements of a cause of action”). Plaintiffs’ Fifth
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Cause of Action is devoid of sufficient factual matter to state a claim for relief and is merely
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composed of conclusory statements. Plaintiffs’ only reference to the overbreadth claim states that
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“the definition of a specified sexual activity as defined in CCC 30.08.030 is unconstitutionally
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broad.” (Pls.’ Compl. ¶ 78.) Plaintiffs fail to provide the Court with any factual allegations
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concerning the overbreadth of the specified sexual activity definition and how it relates to Plaintiffs.
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More importantly, Plaintiffs fail to even plead that the overbreadth “inhibits the [constitutional]
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rights of individuals who are not before the court.” See Convoy, 183 F.3d at 1112. Merely stating in
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conclusory fashion that the section of the code is unconstitutionally broad does not satisfy the
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heightened pleading standard of Iqbal, and therefore Plaintiffs fail to state a claim under the
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overbreadth doctrine.
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Even if Plaintiffs had properly stated a claim, damages are not an appropriate remedy when
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brought under 28 U.S.C. § 1983. The Ninth Circuit has explained that an overbreadth claim “is
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essentially a claim that a statute may be constitutional as applied to the plaintiff, but sweeps so broad
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as to unconstitutionally suppress speech of others not before this court . . . . This theory presupposes
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that the ordinance is constitutional as applied to the plaintiff.” Outdoor Media Group, Inc. v. City of
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Beaumont, 506 F.3d 895, 907 (9th Cir. 2007). Because § 1983 damages are available only for
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violations of a party’s own constitutional rights, the Ninth Circuit held that a plaintiff could not state
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a claim for damages under § 1983 when making a challenge to a statute on the basis of a third-party
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standing exception provided by the overbreadth doctrine. Id. Accordingly, the Ninth Circuit held
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that § 1983 damages “are unavailable on an overbreadth challenge.” Id. Therefore, even if Plaintiffs
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had properly pled, their request for damages would be inapplicable here.
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D. Vague
In their Fifth Cause of Action, Plaintiffs also challenge the definition of specified sexual
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activities as defined in Section 30.08.030 of the Clark County Code on vagueness grounds. When
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analyzing a statute for vagueness, the court must “indulge a presumption of constitutionality.”
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Baggett v. Bullitt, 377 U.S. 360, 372 (1964). In a civil action, the “party challenging the facial
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validity of [a statute] on vagueness grounds outside the domain of the First Amendment must
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demonstrate that the enactment is impermissibly vague in all of its applications.” Hotel & Motel
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Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir. 2003). “The challenger must
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establish that no set of circumstances exist under which the [statute] would be valid.” United States
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v. Salerno, 481 U.S. 739, 745 (1987). “A statute is void for vagueness when it fails to give adequate
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notice to people of ordinary intelligence of what conduct is prohibited, or if invites arbitrary and
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discriminatory enforcement.” United States v. Hungerford, 465 F.3d 1113, 1117 (9th Cir. 2006).
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Here, Plaintiffs fail to plead adequate facts to establish either a facial challenge or an as-
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applied challenge under the Iqbal standard. Iqbal, 129 S. Ct. 1949. Plaintiffs’ Fifth Cause of Action
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is devoid of sufficient factual matter to state a claim for relief and is merely composed of “formulaic
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recitations” of the elements of a cause of action and conclusory statements regarding those elements.
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See Id. Continually pleading that “the definition of a specified sexual activities as defined in the
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Clark County Code, Section 30.08.030 is unconstitutionally vague on its face and as applied to
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Plaintiffs . . . .” is a mere conclusory statement that does not meet the heightened pleading standard
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of Iqbal. (Pls.’ Compl. ¶ 77.)
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Even if properly pled, the statute on its face is not vague. “Whether a [statute] is
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unconstitutionally vague is a question of law.” United States v. Erickson, 75 F.3d 470, 475 (9th Cir.
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1996). Questions of law may be resolved on a motion to dismiss. See Knieval v. ESPN, 393 F.3d
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1068, 1073-74 (9th Cir. 2005). “The notice test of vagueness looks at the ‘very words’ of the statute
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in question to determine whether the statutory language is sufficiently precise to provide
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comprehensible notice of the prohibited conduct.” Anderson v. Morrow, 371 F.3d 1027, 1031-32
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(9th Cir. 2004). “A statute is void for vagueness when it fails to give adequate notice to people of
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ordinary intelligence of what conduct is prohibited . . . .” United States v. Hungerford, 465 F.3d
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1113, 1117 (9th Cir. 2006).
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Specified sexual activities under the Clark County Code is defined as:
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(A) Human genitals in a state of sexual simulation of arousal, (B) acts of human
masturbation, sexual intercourse or activity or sodomy, [and] (C) fondling or other erotic
touching of human genitals, pubic region, buttock or female breast.
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Clark County Code § 30.08.030. Based on the plain language of the statute, the Court finds that the
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definition is clearly delineated and that people of ordinary intelligence are given more than adequate
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notice as to what “specified sexual activity” means under Clark County Code § 30.08.030. The
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statute is not unconstitutionally vague. Plaintiffs’ Fifth Cause of Action is dismissed.
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IV. Conclusion
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The Court finds that Plaintiffs’ First, Second, and Fifth Causes of Action are not facially
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plausible and are therefore dismissed for failure to state a claim. As Plaintiffs’ remaining claims are
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state claims, the Court dismisses Plaintiffs’ First Amended Complaint in its entirety for lack of
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subject matter jurisdiction, pursuant to Fed. R. Civ. Pro 12(b)(1).
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Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#22) is
GRANTED.
Dated this 30th day of June, 2011.
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_______________________
Kent J. Dawson
United States District Court
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