Z.J. Gifts D-4, L.L.C. v. City of Littleton, 01-1220.

Citation311 F.3d 1220
Decision Date18 November 2002
Docket NumberNo. 01-1220.,01-1220.
PartiesZ.J. GIFTS D-4, L.L.C., a Colorado Limited Liability Company, doing business as Christal's, Plaintiff-Appellant, v. CITY OF LITTLETON, an Incorporated Home Rule Municipal Corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Goldberg, P.C., Denver, CO, for the Plaintiff-Appellant.

J. Andrew Nathan (Heidi J. Hugdahl with him on the brief) of Nathan, Bremer, Dumm & Myers, P.C., Denver, CO, for the Defendant-Appellee.

Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and LUCERO, Circuit Judge.

LUCERO, Circuit Judge.

This case raises several First Amendment issues, including one in which the circuits are substantially divided: namely, the extent to which prompt judicial review must be assured in adult-business licensing cases. Plaintiff Z.J. Gifts D-4, L.L.C. ("ZJ") brought an action under 42 U.S.C. § 1983 challenging the City of Littleton's ("City's" or "Littleton's") adult business ordinance as unconstitutional, seeking declaratory and injunctive relief, attorney's fees, and damages. The district court granted summary judgment to the City. We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part and affirm in part.

I

In 1993, the City passed an ordinance requiring businesses that specialize in adult entertainment or merchandise to obtain licenses, and restricting those businesses to certain areas of Littleton. Before passing its ordinance, the City Council heard testimony and reviewed reports from other cities concerning deleterious effects of adult businesses on property values and on crime rates.

In the fall of 1999, ZJ opened its store, known as Christal's, on South Broadway in Littleton. Prior to the opening of Christal's, the City informed the owner of the property on which Christal's was located that adult businesses were not permitted at this South Broadway location. In late August 1999-shortly before Christal's opened — ZJ filed a § 1983 suit against the City seeking monetary, declaratory, and injunctive relief. ZJ's complaint alleged that Littleton's ordinance was unconstitutional because, among other things, it infringed ZJ's First Amendment rights. ZJ also alleged that it did not intend to operate an "adult business establishment" as defined in Littleton's ordinance. (1 Appellant's App. at 11.)

On cross-motions for summary judgment, the district court ruled in favor of the City, concluding that ZJ was covered by Littleton's ordinance and that the ordinance was, in its entirety, constitutional. After the district court's decision in this case and during the briefing for this appeal, the City amended its ordinance, clarifying certain corporate disclosure requirements and changing an age restriction for adult businesses that do not offer live entertainment. Littleton, Colo., Ordinance 13 (2001) (codified at Littleton, Colo., City Code § 3-14-2, -5, -8, -16 (2002)).

II

Both as originally enacted and as amended, Littleton's ordinance has two primary functions: (1) it requires all adult businesses within Littleton to obtain licenses to operate within the City's borders, and (2) it restricts those businesses to certain sections of the City and requires that they not locate within a minimum distance of other specified sites.

Among the adult businesses covered by Littleton's ordinance, Christal's would most likely qualify as an "adult bookstore, adult novelty store, or adult video store." Littleton, Colo., City Code § 3-14-2. A commercial establishment falls into this category if, as judged by percentage of stock-in-trade, revenue, or advertising, it is primarily devoted to the sale of materials that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas," regardless of whether the establishment has other business purposes. Id. "Specified anatomical areas" are further defined as: "(A) Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areolae; or (B) Human male genitals in a discernibly turgid state, even if completely and opaquely covered." Id. "Specified sexual activities" are defined to include masturbation, fondling of the genitals and other specified areas, excretory functions, human genitals in a state of "sexual stimulation, arousal or tumescence," and "normal or perverted" sex acts. Id.

No adult business covered by Littleton's ordinance may operate within five-hundred feet of a church, school, child-care facility, public park, massage parlor regulated by local ordinances, or community correctional facility. Id. § 3-14-3. Adult businesses also may not operate within one-thousand feet of each other or a massage parlor regulated by state law. Id. In addition, multiple adult businesses may not operate within the same structure. Id.

Under Littleton's ordinance, operation of an adult business within the City requires a license. Among other things, a license application must indicate or provide: names of all owners, managers, and employees of the business; information about whether the applicant has had an adult-business license denied, revoked, or suspended by any jurisdiction; an indication whether the applicant has adult-business licenses from other jurisdictions; the address, driver's license number, and social security number of the applicant and all owners, managers, and employees; a floor plan for the proposed business; a written statement by the City's Zoning Officer that the proposed location is in compliance with the ordinance; and a statement of whether an owner, manager, or employee of the business has been convicted of specified criminal acts.1 Id. § 3-14-5. Certain specified persons must also be fingerprinted and photographed by the Police Department. Id.

After an application has been submitted, the City Clerk has thirty days to approve or deny the license. Id. § 3-14-8. The Clerk may deny an application for one or more specified reasons, including: the applicant is under twenty-one years old; the applicant has made a false statement on the application; the applicant or any owner has had an adult-business license revoked or suspended within Colorado in the past year; the applicant has operated an adult business deemed to be a public nuisance in the past year; a corporate applicant is not in good standing or authorized to conduct business in Colorado; the applicant is overdue in any city taxes, fees, fines, or penalties assessed in relation to an adult business; the applicant has failed to obtain the required sales-tax license; or the applicant has been convicted of specified criminal acts. Id. Specified criminal acts for the purposes of the ordinance are defined as: "Sexual crimes against children, sexual abuse, rape or crimes connected with another adult business, including distribution of obscenity, prostitution, pandering or tax violation." Id. § 3-14-2.

If the clerk denies the application, the applicant then has twenty days to appeal the denial to the City Manager,2 who must hold a hearing within thirty days. Id. § 3-14-8. If that appeal is denied, the applicant may seek review in state court pursuant to Colorado Rule of Civil Procedure 106(a)(4). Id.

Licenses are issued for one-year terms and may be renewed only by filing a renewal application. Id. §§ 3-14-9, -10. Licenses may be suspended for one or more specified grounds. Id. § 3-14-11. Suspension or revocation may only occur after a hearing before the City Manager and may be appealed to state court. Id. Finally, under the amended ordinance, all adult businesses in Littleton that do not provide live entertainment are required to restrict entrance to individuals who are eighteen or older.3 Id. § 3-14-16.

III

We initially determine whether there is an Article III case or controversy before us. Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1280 (10th Cir.2002). Standing is an essential part of the case-or-controversy requirement of Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There are three elements to Article III standing: (1) injury-in-fact, (2) causation, and (3) redressability. Essence, 285 F.3d at 1280. An injury-in-fact is an "`invasion of a legally protected interest' that is (a) concrete and particularized and (b) actual or imminent, i.e., not conjectural or hypothetical." Id. (quoting Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). Causation requires a showing that the injury is "`fairly trace[able] to the challenged action of the defendant,' rather than some third party not before the court." Id. (quoting Defenders of Wildlife, 504 U.S. at 560), 112 S.Ct. 2130. Redressability means that it is "likely that a favorable court decision will redress the injury of the plaintiff." Id. "The burden to establish standing rests on the party invoking federal jurisdiction." Id. When the case has been resolved in the district court on summary judgment grounds, "`a plaintiff must establish that there exists no genuine issue of material fact as to justiciability,' and `mere allegations' of injury, causation, and redressability are insufficient." Id. (quoting Dep't of Commerce v. United States House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999)).

A

Standing usually requires that the plaintiff assert an injury to himself, rather than injuries to third parties not before the court. However, this rule is not strictly enforced in the context of facial challenges to laws as violative of the First Amendment, even though a facial challenge to the validity of a statute necessarily entails a challenge to the statute as applied to third parties besides the plaintiff:

In the area of freedom of expression it is well established that one has...

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