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May 27, 2005
SOB ordinance target of lawsuitADULT SUPERSTORE SUES NYE COUNTY OVER RESTRICTIONS ON SEXUALLY ORIENTED BUSINESSES
By PHILLIP GOMEZ David D. L. Horton, legal director with the law offices of Salas & McQuigg in Las Vegas, the attorney representing The Superstore and the one who made the request for the commissioners to reconsider their rushing through with the ordinance in February, filed the civil complaint in federal district court for declaratory relief, preliminary injunction, permanent injunction and attorney's fees. The civil action challenges the county's ordinance on virtually every section for violation of its rights guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth amendments to the U.S. Constitution and the Nevada Constitution. The 15-page brief basically accuses Nye County of over-reaching in trying to regulate sexually oriented businesses and enacting an ordinance "unconstitutionally vague and void for over-breadth." Furthermore, the ordinance "creates an impermissible classification that is arbitrary, irrational and violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." Other alleged violations include: • The ordinance "creates an impermissible prior restraint of protected speech" by making it onerous to obtain a license. • Disclosure requirements in the licensing process are violative of rights to privacy and association as guaranteed by amendments to the Constitution, are unconstitutionally vague and overly drawn. • Disclosure requirements are not narrowly tailored to advance any real governmental interest, thus resulting in prior restraint of protected speech. • By vesting authority in a licensing officer to determine who will be allowed to operate an SOB and who will not, based upon past criminal charges or association with a person with whom the owner was residing, Nye County has created an improper prior restraint that prohibits a person from exercising their rights of speech in the future. In other words, sections of the ordinance improperly prohibit free speech rights in the future based upon alleged wrongful conduct in the past, according to the lawsuit. • The county has impermissibly delegated to its appointed licensing officer "unconstitutional, unbridled discretion" in determining when, under what circumstances and for how long a business license may be suspended or absolutely revoked. • The ordinance fails to provide the required procedural safeguards in applying for an SOB license and the assurance of prompt judicial determination. • The ordinance imposes fees "far in excess of any administration costs, in violation of the First and Fourteenth Amendments" to the Constitution. • The ordinance's provision for allowing the county to "inspect the premises of an SOB for the purpose of insuring compliance with the law, at any time it is occupied or open for business, without a search warrant," is a violation of the First, Fourth and Fourteenth Amendments. • Nye County "drastically and unconstitutionally restricts the public access to certain publications and films on the basis of the content of these publications and films in violation of the First and Fourteenth Amendments." • Provisions of the ordinance imposing zoning restrictions for the location of SOBs in the Pahrump Regional Planning District fail to provide "an adequate number of locations ... in which affected SOBs in general, and plaintiff's business in particular, may lawfully operate." (SOBs are legal only in heavy and light industrial zones and in the area zoned Brothel. There is very little land available in Pahrump zoned for any of those categories that is not way off the beaten path, where such a business would not be viable.) Zoning requirements allegedly "fail to incorporate the necessary procedural safeguards" as articulated in U.S. Supreme Court rulings, thus constituting a prior restraint. The ordinance in this regard allegedly "is designed and calculated to unlawfully eliminate plaintiff's ability to conduct its business and to censor protected expression in Nye County, Nevada." • The ordinance violates the equal protection clause of the Constitution, which guarantees the equal treatment of persons and classes, "by terminating the property rights of a particular class of business based solely upon the content of the expression presented at the business." • Sections of the ordinance are alleged to be violative of both the plaintiff's and the plaintiff's customers' rights to privacy and association, as guaranteed by the First, Ninth and Fourteenth amendments. Furthermore, they impermissibly restrict the public's access to adult-oriented entertainment in violation of the Constitution. • The ordinance creates an arbitrary classification of those who must comply with its sections and those who need not comply, because they are businesses not engaged in selling sexually oriented materials. Such classification schemes are "arbitrary, irrational and designed to suppress a certain type of speech based upon content." • Nye County "has openly and publicly avowed to close plaintiff's establishment under any circumstances." Finally, the petition requests a judgment "for all damages sustained by the plaintiff, including but not limited to lost profits, lost goodwill and violation of constitutional rights, in an amount to be determined, together with pre-judgment and post-judgment interest as provided by law ... and for such other and further relief the court may deem just and proper under the circumstances." Further, the complaint states that the plaintiff reserves the right to amend its complaint "and name certain public officials and political figures within such municipality, as well as seek damages against those persons individually, in the event plaintiff determines, through discovery, that such ordinance was enacted or enforced in bad faith." The complaint again alleges, as reported previously and denied by Chief Civil Deputy District Attorney Ron Kent, that after repeated attempts, the plaintiff was unable to obtain a final version of the ordinance and "is still not certain of the exact language in the final enacted version ... since Nye County has been unwilling or unable to provide a copy." Kent said he was in receipt of the lawsuit but would decline comment until he could review the allegations contained within the complaint and brief the Nye County Board of Commissioners. It is important to note the allegations, at this point, are unproven accusations and the onus is on the plaintiff to prove the ordinance is unconstitutional. Kent said District Attorney Bob Beckett would likely make public comment on the matter in the near future, but not until he and other officials "have a handle" on what has been alleged. Doug McMurdo contributed to this report. |
