Gammoh v. City of La Habra

• Decision Date: 26 January 2005
• Docket Number: No. 04-56072.,04-56072.
• Citation: 395 F.3d 1114
• Parties: Bill Badi GAMMOH, dba Taboo Theater aka Pelican Theater; Leslie West; Armine Michelle Bedrosian; Christine Johanna Fener; Charbonesse Garrett; Heather Eloise Elam; Stacy Joy Andre; Meghann Lara Ann Onselen, Plaintiffs-Appellants, v. CITY OF LA HABRA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

395 F.3d 1114

Bill Badi GAMMOH, dba Taboo Theater aka Pelican Theater; Leslie West; Armine Michelle Bedrosian; Christine Johanna Fener; Charbonesse Garrett; Heather Eloise Elam; Stacy Joy Andre; Meghann Lara Ann Onselen, Plaintiffs-Appellants, v. CITY OF LA HABRA, Defendant-Appellee.

No. 04-56072.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 1, 2004.

Filed January 26, 2005.

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Scott W. Wellman and Stuart Miller, Wellman & Warren, Laguna Hills, CA, for the plaintiffs-appellants.

Deborah J. Fox and Dawn A. McIntosh, Fox & Sohagi, Los Angeles, CA, for the defendant-appellee.

Scott D. Bergthold, Chattanooga, TN, for Amicus Curiae League of California Cities.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-03-00911-GLT.

Before: TASHIMA, FISHER, and TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

This case involves constitutional challenges to a city ordinance requiring "adult cabaret dancers" to remain two feet away from patrons during performances. The district court rejected these challenges by dismissing some of the Appellants' claims on the pleadings and granting summary judgment as to other claims. We denied emergency motions for a stay of enforcement of the Ordinance pending appeal and now affirm.

I

The City of La Habra's (City's) Municipal Ordinance 1626 ("Ordinance") regulates adult businesses. The first section of the Ordinance contains extensive findings that adult businesses generate crime, economic harm, and the spread of sexually transmitted diseases. These findings are based on studies and police declarations from other jurisdictions, federal and state judicial opinions, and public health data from surrounding southern California counties. Ordinance, § 1. Other sections of the Ordinance contain regulations purporting to address the secondary effects described in the first section, including a prohibition of physical contact between patrons and performers (the "no-touch rule") and a requirement that adult cabaret dancers perform at least two feet away from their patrons (the "two-foot rule"). Ordinance, §§ 4, 7. The Appellants are Bill Badi Gammoh, the owner of an adult establishment in the City, several dancers at Gammoh's club, and a dancer who has been offered employment at Gammoh's club but has not yet accepted it. Gammoh's establishment, which does not serve alcoholic beverages, features entertainment by dancers who perform nude on stage and then dress in minimal clothing before offering one-on-one offstage dances.¹ The Appellants do not challenge the provisions of the Ordinance governing on-stage dancing and other aspects of the operation of an adult cabaret; they challenge only the two-foot rule.

Three weeks after the City Council passed the Ordinance, the Appellants filed their constitutional challenge in the Superior Court of California for Orange County. The case was subsequently removed to the United States District Court for the Central District of California. The Appellants were unsuccessful before the district court. In addition to other rulings that the Appellants do not challenge on appeal, the district court dismissed the Appellants' overbreadth argument and part of their vagueness challenge with prejudice, and entered summary judgment in favor of the City on their regulatory takings claim, a First Amendment challenge, and the remaining vagueness argument. The Appellants pursue their vagueness, overbreadth, takings, and free speech and expression claims on appeal.

II

The Ordinance's two-foot rule applies exclusively to "adult cabaret dancers." The Ordinance defines an "adult cabaret dancer" as:

any person who is an employee or independent contractor of an "adult cabaret" or "adult business" and who, with or without any compensation or other form of consideration, performs as a sexually-oriented dancer, exotic dancer, stripper, go-go dancer or similar dancer whose performance on a regular and substantial basis focuses on or emphasizes the adult cabaret dancer's breasts, genitals, and or buttocks, but does not involve exposure of "specified anatomical areas" or depicting or engaging in "specified sexual activities." Adult cabaret dancer does not include a patron.

Ordinance, § 4. The district court rejected the Appellants' assertion that this definition is vague and overbroad because it contains subjective terms. We review the district court's ruling de novo. See United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir.2004); United States v. Linick, 195 F.3d 538, 541 (9th Cir.1999).

A

To survive a vagueness challenge, a regulation must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see also United States v. Adams, 343 F.3d 1024, 1035 (9th Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2871, 159 L.Ed.2d 779 (2004). A greater degree of specificity and clarity is required when First Amendment rights are at stake. Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1057 (9th Cir.1986).

The Appellants argue that the subjective language used to define an "adult cabaret dancer" makes the definition, and thus the Ordinance, unconstitutionally vague. Cf. City of Chicago v. Morales, 527 U.S. 41, 56-64, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (holding a provision criminalizing loitering, which is defined as "to remain in any one place with no apparent purpose," void for vagueness because the provision was "inherently subjective because its application depends on whether some purpose is `apparent' to the officer on the scene"); Tucson Woman's Clinic v. Eden, 379 F.3d 531, 554-55 (9th Cir.2004) (holding a statute requiring physicians to treat patients "with consideration, respect, and full recognition of the patient's dignity and individuality" void for vagueness because it "subjected physicians to sanctions based not on their own objective behavior, but on the subjective viewpoint of others") (internal quotation and citation omitted); Free Speech Coalition v. Reno, 198 F.3d 1083, 1095 (9th Cir.1999), aff'd sub nom. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (holding a provision that criminalized sexually explicit images that "appear[ ] to be a minor" or "convey the impression" that a minor is depicted unconstitutionally vague because it was unclear "whose perspective defines the appearance of a minor, or whose impression that a minor is involved leads to criminal prosecution").

Several of the terms within the Ordinance's definition of "adult cabaret dancer" — "sexually oriented dancer," "exotic dancer," "similar dancer," "regular basis," and "focuses on or emphasizes" — are unarguably subjective. However, two main factors distinguish the Ordinance from cases such as Morales, Tucson Woman's Clinic, and Free Speech Coalition, where the regulations were held to be too subjective to give notice to ordinary people or guidance to law enforcement: 1) the subjective terms in the Ordinance are used in combination with other terms, and 2) the subjective terms do not define prohibited conduct.

This circuit has previously recognized that otherwise imprecise terms may avoid vagueness problems when used in combination with terms that provide sufficient clarity. See Kev, 793 F.2d at 1057 (holding that an ordinance prohibiting dancers from "caressing" and "fondling" patrons was not vague "in the context of the other definitions provided in the ordinance" at issue). In this case, the district court recognized that the two-foot rule applies only to "adult cabaret dancers" who meet the following five qualifications: 1) the individual must perform at an "adult cabaret";² 2) the performer must perform as a sexually-oriented dancer, exotic dancer, stripper, or similar dancer; 3) the performance must focus on or emphasize the performer's breasts, genitals, and/or buttocks; 4) the performance must have this focus or emphasis on a regular basis; and 5) the performance must have this focus or emphasis on a substantial basis. Thus, an "adult cabaret dancer" is defined by a combination of features, not by any one subjective term. The combined terms outline the performer, the place of the performance, and the type of performance. Each of the five limitations provides context in which the other limitations may be clearly understood. The definition as a whole gives notice to performers and ample guidance to law enforcement officers as to who is and who is not an "adult cabaret dancer."

Furthermore, although the definition of an "adult cabaret dancer" contains subjective terms, the prohibited conduct is defined objectively. It is not illegal to be an adult cabaret dancer; only to be an adult cabaret dancer performing within two feet of a patron. This distinction introduces additional objectivity into the Ordinance because the act that is prohibited — being within two feet of a patron — is certainly not vague.³

Vagueness doctrine cannot be understood in a manner that prohibits governments from addressing problems that are difficult to define in objective terms. See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("we can never expect mathematical certainty from our language"). In this case, a combination of subjective and objective terms is used to give a clear picture of an "adult cabaret dancer" and the conduct prohibited of such a dancer is defined objectively. Thus, the definition of "adult cabaret dancer" is sufficiently clear to give notice to performers and guidance to law enforcement. See Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1150 (9th Cir.2001) ("perfect clarity is not required...