IDK, Inc. v. Clark County

• Decision Date: 24 December 1984
• Docket Number: No. CV-LV-84-574 RDF.,CV-LV-84-574 RDF.
• Citation: 599 F. Supp. 1402
• Parties: IDK, INC., a Nevada Corporation; Showgirls of Las Vegas, Inc., a Nevada corporation; Golden Girls, a Nevada corporation; Playgirls, a sole proprietorship; Swinging Suzy's Escorts, Inc., a Nevada corporation; Executive Escorts, a sole proprietorship; Velvet Touch, a sole proprietorship; Escort Hotline, a sole proprietorship; Vegas Hotline, a sole proprietorship; Nevada Hotline, a sole proprietorship; Vegas Girls, a sole proprietorship; and AA-Las Vegas Escorts, Inc., a Nevada corporation, Plaintiffs, v. COUNTY OF CLARK, Thalia M. Dondero, Manuel J. Cortez, Karen Hayes, Paul May, R.J. "Dick" Ronzone, Donald M. Clark and Bruce L. Woodbury, in their capacity as members of the Clark County Liquor and Gaming Licensing Board; John Moran, in his capacity as Sheriff of Clark County, Nevada, and in his capacity as Chairman of the Las Vegas Metropolitan Police Commission, and as Chief Administrative Officer and Chief Law Enforcement Officer of the Las Vegas Metropolitan Police Department; Ned B. Solomon, in his capacity as Acting Director of the Clark County Department of Business License, Does I through XX, inclusive, Defendants.
• Court: U.S. District Court — District of Nevada

599 F. Supp. 1402

IDK, INC., a Nevada Corporation; Showgirls of Las Vegas, Inc., a Nevada corporation; Golden Girls, a Nevada corporation; Playgirls, a sole proprietorship; Swinging Suzy's Escorts, Inc., a Nevada corporation; Executive Escorts, a sole proprietorship; Velvet Touch, a sole proprietorship; Escort Hotline, a sole proprietorship; Vegas Hotline, a sole proprietorship; Nevada Hotline, a sole proprietorship; Vegas Girls, a sole proprietorship; and AA-Las Vegas Escorts, Inc., a Nevada corporation, Plaintiffs, v. COUNTY OF CLARK, Thalia M. Dondero, Manuel J. Cortez, Karen Hayes, Paul May, R.J. "Dick" Ronzone, Donald M. Clark and Bruce L. Woodbury, in their capacity as members of the Clark County Liquor and Gaming Licensing Board; John Moran, in his capacity as Sheriff of Clark County, Nevada, and in his capacity as Chairman of the Las Vegas Metropolitan Police Commission, and as Chief Administrative Officer and Chief Law Enforcement Officer of the Las Vegas Metropolitan Police Department; Ned B. Solomon, in his capacity as Acting Director of the Clark County Department of Business License, Does I through XX, inclusive, Defendants.

No. CV-LV-84-574 RDF.

United States District Court, D. Nevada.

December 24, 1984.

David Z. Chesnoff, Ltd., Las Vegas, Nev., for plaintiffs.

E. Mahlon Edwards, Deputy Dist. Atty., Clark County, and John E. Gormley, Las Vegas, Nev., for defendants.

Opinion and Order Denying Plaintiffs' Motion for Preliminary Injunction

ROGER D. FOLEY, District Judge.

Plaintiffs, various escort bureaus in Clark County, Nevada, (the Las Vegas area), bring this suit pursuant to 42 U.S.C. § 1983 seeking damages and to enjoin, temporarily and permanently, the enforcement of Clark County Code Chapter 8.32, entitled ESCORT SERVICES. This regulation subjects plaintiffs to various licensing requirements in order to lawfully operate an escort service. Plaintiffs claim the regulation is overbroad and vague; that the regulation is a prior restraint on protected First Amendment activity; and that the regulation grants excessive discretion in the Clark County Liquor and Gaming Licensing Board.

This opinion addresses plaintiffs' motion for a preliminary injunction. Plaintiffs will prevail on the motion "by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in plaintiffs' favor." Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). See also Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 753 (9th Cir.1982). However, plaintiffs have not met this burden.

The Court finds the regulation neither overbroad nor vague. And since the Court finds no First Amendment activity implicated in the escort bureau licensing scheme, the regulation is not a prior restraint. Further, the Court finds no delegation of excessive discretion. Therefore, federal interference with Clark County's licensing policies and procedures is unwarranted. No temporary or permanent equitable relief will be granted.

I. ABSTENTION

Defendants urge the Court to abstain from considering this case. Typically, a federal court will not interfere with a state's good faith civil or criminal regulatory enforcement proceedings. A state court usually will resolve any federal constitutional issues along with its resolution of the state law prosecution or civil enforcement proceeding. However, when the state proceedings will not assure adequate vindication of a litigant's constitutional rights, a federal court may enjoin those proceedings. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22, 28 (1965).

In the present case, plaintiffs, the escort bureaus, allege they are engaged primarily in protected First Amendment activity. Furthermore, they claim the continued enforcement of Clark County Code Chapter 8.32 impermissibly violates their freedom of association. If the regulation truly inhibits plaintiffs' freedom of association, as alleged, plaintiffs may indeed suffer irreparable injury while they await a state court decision on matters pending under the regulation. Continued enforcement of the regulation may result in serious constitutional violations. The threat of sanctions against the escort bureaus and their employees may deter protected conduct as effectively as the actual application of sanctions. "The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure." Id. at 486-87, 85 S.Ct. at 1120-21.

Plaintiffs' allegations suggest that the County's actual and threatened prosecutions against them and their employees has a chilling effect on protected associational conduct. If these allegations state a claim under 42 U.S.C. § 1983, as the Court believes they do, abstention is inappropriate. And assuming the allegations are correct, judicial delay in vindicating those allegedly infringed constitutional rights must be prevented. Id.; Marshall v. Sawyer, 301 F.2d 639, 646 (9th Cir.1962).

Abstention may still be proper if the regulation in question is open to a Nevada state court's interpretation which might avoid in whole or in part the present constitutional issues. Id. at 645. But the Nevada Supreme Court already has dealt with Clark County Code Chapter 8.32. Republic Entertainment, Inc. v. Clark County, 99 Nev.Ad.Op. 173, 672 P.2d 634 (1983). In Republic Entertainment, the Nevada Supreme Court resolved questions of overbreadth, vagueness and prior restraint, and found the regulation constitutional on all accounts. The scope of the regulation was not narrowed.¹

Because the Nevada Supreme Court has already dealt with these issues, the regulation is "not readily subject to a narrowing construction by the state courts." Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125, 135 (1975). And since the regulation "is not fairly subject to an interpretation which will avoid or modify the federal constitutional questions, it is the duty of this Court to decide the federal questions" now before it. Zwickler v. Koota, 389 U.S. 241, 251, 88 S.Ct. 391, 397, 19 L.Ed.2d 444, 452 (1967). Therefore, abstention here is inappropriate.

However, the equitable and legal relief sought by plaintiffs is not necessarily mandated simply because abstention is improper. Plaintiffs still must establish that their activity is protected under the First Amendment. Therefore, the Court must determine whether the challenged regulation inhibits any of plaintiffs' First Amendment rights.

II. OVERBREADTH

a. Standing

Plaintiffs allege the Clark County ordinance is overbroad and, as a result, unconstitutional on its face. This court must base its determination of facial validity on any limiting constructions the Nevada courts or enforcement agencies have proffered which would narrow the permissible scope of the regulation. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494, n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362, 369 (1982); Adamian v. Jacobsen, 523 F.2d 929, 932 (9th Cir.1975); See also Sawyer v. Sandstrom, 615 F.2d 311, 315 (5th Cir.1980). But the Nevada Supreme Court has already approved of the present language of the regulation, as amended by Regulations G-59-81 and G-66-83. Republic Entertainment, Inc. v. Clark County, 99 Nev.Ad.Op. 173, 672 P.2d 634 (1983).² The regulation's scope has not been narrowed. Therefore, this Court's determination of facial validity will be unaffected by that decision.

The nub of plaintiffs' overbreadth argument is that the conduct of plaintiffs, their hired escorts and runners,³ is protected by what plaintiffs label "GENERIC first amendment rights." Further, they claim the regulation inhibits those rights. Plaintiffs' Brief at 14. Plaintiffs propose that the First Amendment freedom of association includes a paid escort's right to date, socialize, visit and accompany the paying customer. Moreover, plaintiffs claim that the escort bureaus themselves have the constitutional right to "introduce" the escort to her customer, and that the escort runners have the constitutional right to "contact" and "meet" the customer to arrange the date. Id.

Though plaintiffs claim a First Amendment right to "introduce" the escort and her customer, they assert primarily the rights of the escorts who are not before the Court. It is the escorts who supposedly "date," not the bureaus themselves. Plaintiffs, however, "are permitted to challenge this regulation ... because of a judicial prediction or assumption that the regulation's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 840 (1973).

Plaintiffs seek equitable relief to enjoin enforcement of the ordinance because of its alleged overbreadth. Plaintiffs will prevail on the motion for preliminary injunction if they show a "realistic danger that the regulation itself will significantly compromise recognized First Amendment protections" of the plaintiffs themselves or of parties not before the Court. City Council v. Taxpayers for Vincent, ___ U.S. ___, 80 L.Ed.2d 772, 784, 104 S.Ct. 2118 (1984). As shall be seen, however, plaintiffs fail to carry this burden.

Under the overbreadth doctrine, "a law is void on its face if it sweeps within its ambit not solely activity that is subject to governmental control, but also includes within its prohibition the practice of a protected constitutional right." Clark v. City of Los Angeles, 650 F.2d 1033, 1039 (9th Cir.1981). See also, Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). However, the overbreadth still must be both real and substantial and, the constitutional flaw, if any, must be a "substantial...