A City of Las Vegas ordinance regarding adult bookstore permits has been declared unconstitutional by the Ninth Circuit U.S. Court of Appeals. The ruling in the case, known as Baby Tam II, came despite amendments to city ordinance, state law and court rules of practice that were intended to cure defects of an earlier law that the Ninth Circuit declared invalid in 1998.

In a 2-1 decision, a panel of the Ninth Circuit said the regulatory scheme remained flawed because it still did not ensure a timely decision by the city on an application for an adult bookstore — a variation on the basis on which the Ninth Circuit threw out the earlier law.

In Baby Tam I, (Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097 (9th Cir. 1998)) the court held that the city's ordinance failed to provide for prompt judicial review of a denial of a license to operate a bookstore and therefore was "on its face a prior restraint of speech which violates the First and Fourteenth amendments." The Ninth Circuit extensively cited the U.S. Supreme Court's decision in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).

After Baby Tam I, California lawmakers approved a measure in 1999 (SB1165) that requires judges to decide within 60 days on challenges to issuance, denial or revocation of an adult business permit.

Las Vegas also altered its regulatory scheme. It amended the municipal code to state that if an adult bookstore applicant challenges denial of a permit in district court, and the court does not decide the matter within 30 days, then the city must issue a temporary bookstore license until the court rules. The city also secured amendments to state law and to practices of the Eighth Judicial District Court, which agreed to decide such cases within 30 days after filing of a writ.

With those changes in place, the U.S. District Court held that "the deficiencies noted by the Ninth Circuit Court of Appeals have been corrected" and dissolved the injunction against the city. Baby Tam & Co., which operates adult bookstores, appealed.

On appeal, the Ninth Circuit said the city got it partially right. But the court noted it decided Baby Tam I on narrow grounds, leaving other issues undecided.

"[O]n its face the judicial review appears to pass constitutional muster," Judge John Noonan wrote for the majority. "A Las Vegas council member or a Nevada legislator might think, we did what the courts said and the Constitution required. Wasn't that enough? As it turns out, it wasn't, because this court did not take upon itself to expound all the constitutional problems in the statute or write a primer on the First Amendment."

In fact, the court said, Las Vegas' ordinance remained no different than the Dallas law that the Supreme Court rejected in FW/PBS. Because Dallas required that applicants get clearance from the health department, fire department and building official before the 30-day limit for deciding an application began to run, "the city's regulatory scheme allow[ed] indefinite postponement of the issuance of a license," the high court ruled.

The Law Vegas law was similar. "[T]he thirty days begin to run ‘from receipt of a complete application and fees upon compliance with the requirements of this Section and any applicable provisions of Title 6 of this Code,'" Noonan wrote, citing the Las Vegas ordinance. "Other applicable provisions of the Code include ‘the standards of the health, zoning, fire and safety laws of the State of Nevada and ordinances of the City of Las Vegas applicable thereto.' LVMC §6.06A.020.

"No time limit is set within which satisfaction of these requirements must be found," Noonan continued. "The time is as indefinite as in the invalid Dallas ordinance. The thirty days within which the Director must act may be indefinitely postponed. The ordinance fails to meet the requirements of the First and Fourteenth Amendments."

The court further noted that it was not prejudging any other issues that might arise in future litigation.

In a dissent Judge David Thompson said that while he agreed with the majority's ruling on the legal principles, the Las Vegas ordinance was factually different from the invalid Dallas law. Thompson interpreted the Las Vegas ordinance as giving the planning director — who would issue the adult bookstore license — 30 days to determine whether an applicant has met the health, zoning, fire and safety requirements. If the director did not decide within 30 days, the license is issued, Thompson wrote.

The Case:
Baby Tam & Co., Inc., v. City of Las Vegas, No. 99-16809, 00 C.D.O.S. 383, filed January 14, 2000.

The Lawyers:
For Baby Tam: Michael Stein, Kenehan, Lambertsen & Stein, Las Vegas, (775) 329-1129.
For Las Vegas, William Henry, deputy city attorney, (702) 229-6201.