183 F.3d 1108 (9th Cir. 1999), 97-55295, 4805 Convoy v. City of San Diego

Docket Nº:97-55295
Citation:183 F.3d 1108
Party Name:v. CITY OF SAN DIEGO, a political subdivision of the State of California, Defendant-Appellee.
Case Date:July 14, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1108

183 F.3d 1108 (9th Cir. 1999)


CITY OF SAN DIEGO, a political subdivision of the State of California, Defendant-Appellee.

No. 97-55295

United States Court of Appeals, Ninth Circuit

July 14, 1999

Argued and Submitted June 5, 1998--Pasadena, California

Page 1109

A. Dale Manicom, San Diego, California, for the plaintiff appellant.

Grant Richard Tefler, Deputy City Attorney, San Diego, California, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding.D.C. No. CV-95-03801-NAJ/CGA.

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Before: Procter Hug, Jr., Chief Judge, Alex Kozinski, Circuit Judge, and James M. Fitzgerald, District Judge1.

HUG, Chief Judge:

4805 Convoy, Inc. ("Convoy"), which operates a business that presents nude dancing, brought this facial challenge under 42 U.S.C. S 1983 asserting that the City of San Diego's ("City") nude dancing licensing ordinance was unconstitutional. The district court granted summary judgment in favor of the City, concluding that the City's licensing scheme provided adequate procedural safeguards and that Convoy therefore failed to show that the scheme was facially unconstitutional. Convoy filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we REVERSE and REMAND.


Convoy operates a business which features both male and female nude entertainers. In 1987, Convoy obtained a Nude Entertainment License, which is required of all businesses that present nude dancing. San Diego, Ca., Municipal Code ("SDMC") SS 33.3605, 33.3606. The SDMC also contains operating regulations for Nude Entertainment Businesses, including the requirements that nude dancers be licensed and that they stay at least six feet away from patrons. SDMC S 33.3610.

The City alleges that during an inspection of Convoy's business, officers determined that Convoy broke both of these rules during an "amateur night" by allowing unlicensed women to dance topless and closer than six feet to the patrons. In a written notice of October 3, 1995, the City suspended Convoy's license for two weeks pursuant to SDMC SS 33.0401 and 33.3616, which provide for the suspension and revocation of a license for violating the regulations.

Convoy administratively appealed the suspension of its license, and the suspension was stayed during the administrative appeal process, pursuant to SDMC S 33.0501. The hearing officer ruled on Convoy's appeal on February 20, 1996, holding that Convoy had violated S 33.3610(a) (unlicensed dancers), but not S 33.3610(f) (six-foot rule), and reduced the length of the suspension from fourteen to seven days. Convoy exercised its right to a review of the hearing officer's decision by the Public Services and Safety Committee ("Committee") of the City Council, which denied the appeal on March 22, 1996.

On June 18, 1996, Convoy filed a Petition for Writ of Administrative Mandamus, pursuant to Cal. Code Civ. P. S 1094.5, in the Superior Court of California in San Diego County. The court issued a Judgment Denying the Writ of Mandate on April 7, 1997, but ordered the suspension of Convoy's license stayed pending resolution of Convoy's federal district court suit and this appeal.

In addition to its administrative appeals and state court review, Convoy sought relief concurrently in the federal courts. On November 22, 1995, Convoy filed suit in federal district court to enjoin the City from suspending Convoy's license under the existing administrative scheme. Convoy alleged that the SDMC provisions regulating the issuance, suspension, and revocation of licenses for nude entertainment businesses were unenforceable because they unconstitutionally restrained speech by failing to provide adequate procedural safeguards. On January 12, 1996, the district court granted Convoy's request for a preliminary injunction pending completion of any judicial review of the license suspension.

Convoy filed a motion for summary judgment in the district court on July 15, 1996, seeking an order permanently enjoining

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the City from suspending its license and declaring the City's licensing scheme unenforceable as an invalid prior restraint. In response, the City filed an opposition which included a cross-motion for summary judgment. The district court granted summary judgment in favor of the City on October 22, 1996, concluding that the City's licensing scheme provided adequate procedural safeguards and that Convoy therefore had failed to show that the City's scheme was unconstitutional on its face. On November 1, 1996, Convoy filed a motion to alter or amend the judgment, pursuant to Fed. R. Civ. P. 59(e). The motion was denied on January 27, 1997, and Convoy filed a timely notice of appeal on February 19, 1997.


1. Standing

As an initial matter, we must determine whether Convoy has standing to bring a facial challenge under the First Amendment to the City's licensing scheme.2 Standing is a question of law reviewed de novo. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).

"A successful challenge to the facial constitutionality of a law invalidates the law itself." Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Thus, facial challenges "are allowed not primarily for the benefit of the litigant, but for the benefit of society--to prevent the statute from chilling the First Amendment rights of other parties not before the court." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984).3

We have previously observed that facial challenges under the First Amendment are permitted "when the legislation allegedly vests government officials with unbridled discretion" and "when there is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech." Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998). Convoy asserts that because it challenges the City's licensing scheme as lacking constitutionally required procedural safeguards, it has standing under the Supreme Court's "overbreadth" doctrine to challenge the licensing provisions of the City's ordinance as well as the license suspension and revocation provisions applicable to Convoy's situation. We agree that Convoy has standing to bring a facial challenge to the ordinance's revocation and suspension procedures, but hold that it cannot challenge the licensing provisions.

In order to bring an action in federal court, a plaintiff must have suffered "an injury in fact; that is . . . some threatened or actual injury resulting from the putatively illegal action. . . ." Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392 (1988) (internal quotation marks omitted). To meet this requirement, "[a]bstract injury is not enough. The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or

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threat of injury must be both real and immediate, not conjectural or hypothetical." City of Los Angeles v. Lyons , 461 U.S. 95, 10102 (1983) (internal quotation marks omitted). Thus, a "plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Munson, 467 U.S. at 955 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).

However, under the Supreme Court's "over breadth " doctrine, a plaintiff may challenge an overly broad statute or regulation by showing that it may inhibit the First Amendment rights of individuals who are not before the court. See, e.g., Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-99 (1984); Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634 (1980). That is, the plaintiff can challenge a statute on the ground that it is unconstitutional as applied to someone else, even if his own conduct is not protected under the First Amendment. See Foti, 146 F.3d at 635 (citing Vincent, 466 U.S. at 797).4 The overbreadth doctrine is based on the observation that "the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992); see also Lind v. Grimmer, 30 F.3d 1115, 1122 (9th Cir. 1994) (overbreadth doctrine is designed to avert a potential chilling effect on speech). Thus, this doctrine "serves to overcome what would otherwise be a plaintiff's lack of standing." Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir. 1997).

According to the Supreme Court, the crucial issues in determining overbreadth standing "are whether [the plaintiff] satisfies the requirement of `injury-in-fact,' and whether it can be expected satisfactorily to frame the issues in the case." Munson, 467 U.S. at 958. Thus, [the] slender [overbreadth] exception to the prudential limits on standing . . . does not affect the rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court's jurisdiction. Rather, the exception only allows those who have suffered some cognizable injury, but whose conduct is not protected under the First Amendment, to assert the constitutional rights of others.

Bordell v. General Elec. Co., 922 F.2d 1057, 1061 (2nd Cir. 1991) (citations omitted); see also Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975) (in order to have overbreadth standing, a plaintiff "must present more than allegations of a subjective chill. There must be a claim of specific present objective harm or a threat of specific future harm. " (internal...

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