Vivid Entertainment LLC et al v. Jonathan Fielding et al, No. 2:2013cv00190 - Document 79 (C.D. Cal. 2013)
Court Description: ORDER DENYING IN PART AND GRANTING IN PART INTERVENERS' MOTION TO DISMISS 49 ; DENYING IN PART AND GRANTING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION 55 ; AND VACATING PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 64 by Judge Dean D. Pregerson. (lom)
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Vivid Entertainment LLC et al v. Jonathan Fielding et al Doc. 79 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 VIVID ENTERTAINMENT, LLC; CALIFA PRODUCTIONS, INC.; JANE DOE a/k/a KAYDEN KROSS, 13 Plaintiff, 14 15 16 17 v. JONATHAN FIELDING, DIRECTOR OF LOS ANGELES COUNTY DEPARTMENT OF PUBLIC HEALTH; JACKIE LACEY, LOS ANGELES COUNTY DISTRICT ATTORNEY, and COUNTY OF LOS ANGELES, 18 19 Defendants. ___________________________ 20 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-00190 DDP (AGRx) ORDER DENYING IN PART AND GRANTING IN PART INTERVENERS’ MOTION TO DISMISS; DENYING IN PART AND GRANTING IN PART PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION; AND VACATING PLAINTIFFS’ MOTION FOR JUDGMENT ON THE PLEADINGS [Docket Nos. 49, 55, 64] I. Background 21 Plaintiffs Vivid Entertainment, LLC (“Vivid”) and Califa 22 Productions, Inc., produce adult films. (Compl. ¶¶ 8-9, Docket No. 23 1.) 24 (“Ms. Kross”), and John Doe, known professionally as Logan Pierce 25 (“Mr. Pierce”), are performers who appear in adult films. (Id. ¶¶ 26 10-11.) 27 28 Plaintiffs Jane Doe, known professionally as Kayden Kross The adult film industry regularly tests actors for sexually transmitted infections (“STIs”). (Id. ¶¶ 20-31.) During the Dockets.Justia.com 1 November 2012 elections, Los Angeles County passed, via referendum, 2 The County of Los Angeles Safer Sex in the Adult Film Industry Act 3 (“Measure “B”). 4 B); Los Angeles County Code § 11.39 (“§ 11.39"), et seq. (codifying 5 Measure B). 6 production can occur, to pay a fee and obtain a permit from the 7 County Department of Public Health (the “Department”), which is 8 tasked with enforcing Measure B. 9 Public Health, set the permit fee in the range of $2,000 to $2,500 (Id. ¶ 36; Docket No. 58-1 Ex. B text of Measure Measure B forces producers of adult films, before any (Id. ¶ 41-43.) The Department of 10 per year. 11 display the permit at all times during filming. 12 permit is valid for two years, but is, at all times, subject to 13 immediate revocation. 14 requires that performers engaging in anal or vaginal sexual 15 intercourse to use condoms during filming. (Compl. ¶ 42.) 16 (Compl. ¶ 48.) Once approved, the film producers must (Id.) (Id. ¶ 41.) A Once a permit is granted, Measure B Department inspectors are granted access to “any location 17 suspected of conducting any activity regulated by” Measure B, 18 without notice. 19 property or private documents from any person present at any 20 location if there is suspicion of a Measure B violation. 21 § 11.39.130. Inspectors can look at personal See id. Plaintiffs have sued various County officials for Declaratory 22 and Injunctive Relief. 23 have declined to defend Measure B’s constitutionality, this Court 24 has allowed Michael Weinstein, Marijane Jackson, Arlette De La 25 Cruz, Mark McGrath, Whitney Engeran, and the Campaign Committee Yes 26 on B, Major Funding by the AIDS Healthcare Foundation 27 (“Interveners”) to intervene. 28 to Intervene, Docket No. 44; Order Denying Plaintiffs’ Motion for (See generally Compl.) Because Defendants (See generally Order Granting Motion 2 1 Reconsideration, Docket No. 78.) Interveners were Measure B’s 2 official proponents. 3 is Interveners’ Motion to Dismiss and Plaintiffs’ Motion for a 4 Preliminary Injunction. 5 II. Legal Standard (Id. at 2:19-20.) Presently before the Court (Docket Nos. 49, 55.)1 6 A. Motion to Dismiss 7 A complaint will survive a motion to dismiss when it contains 8 “sufficient factual matter, accepted as true, to state a claim to 9 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 10 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 11 570 (2007)). 12 “accept as true all allegations of material fact and must construe 13 those facts in the light most favorable to the plaintiff.” 14 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 15 need not include “detailed factual allegations,” it must offer 16 “more than an unadorned, the-defendant-unlawfully-harmed-me 17 accusation.” 18 allegations that are no more than a statement of a legal conclusion 19 “are not entitled to the assumption of truth.” 20 other words, a pleading that merely offers “labels and 21 conclusions,” a “formulaic recitation of the elements,” or “naked 22 assertions” will not be sufficient to state a claim upon which When considering a Rule 12(b)(6) motion, a court must Iqbal, 556 U.S. at 678. Resnick Although a complaint Conclusory allegations or Id. at 679. In 23 1 24 25 26 27 28 Plaintiffs argue the motion to dismiss is untimely because the County has already filed an answer in this case. Generally, motions to dismiss must be filed before an answer. United States v. Real Prop. Located at 41430 De Portola Rd., Rancho California, 959 F.2d 243 (9th Cir. 1992). It is unclear, though, how this rule is applied in the intervener context. Regardless, should the rule apply to Interveners, the Court uses its discretion to convert the motion to dismiss into a motion for judgment on the pleadings, which is analogous to a motion to dismiss except that it may be filed after an answer. See id. 3 1 relief can be granted. Id. at 678 (citations and internal 2 quotation marks omitted). 3 allegations, a court should assume their veracity and then 4 determine whether they plausibly give rise to an entitlement of 5 relief.” “When there are well-pleaded factual Id. at 679. 6 B. Motion for Preliminary Injunction 7 “[P]laintiffs seeking a preliminary injunction must establish 8 that (1) they are likely to succeed on the merits; (2) they are 9 likely to suffer irreparable harm in the absence of preliminary 10 relief; (3) the balance of equities tips in their favor; and (4) a 11 preliminary injunction is in the public interest.” 12 Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter 13 v. Natural Resources Defense Council, Inc., 555 U.S. 7, 29 (2008)). 14 III. Motion to Dismiss Analysis 15 Sierra Forest After reviewing Interveners’ motion to dismiss, the Court 16 GRANTS dismissal of Plaintiffs’ claim that ballot initiatives 17 cannot, as a matter of law, implicate First Amendment rights, that 18 state law preempts Measure B, and that Measure B violates 19 Plaintiffs’ due process rights (with the exception of Plaintiffs’ 20 Fourth Amendment claim). 21 remaining claims. The Court DENIES dismissal on the 22 A. Standing 23 Interveners claim that Plaintiffs do not have standing. 24 Standing is a “threshold question.” 25 Scheidler, 510 U.S. 249, 255 (1994). 26 concern about the proper–and properly limited role–of the courts in 27 a democratic society.” 28 The constitutional requirements of standing are: Nat'l Org. for Women, Inc. v. The doctrine “is founded in Wart v. Seldin, 422 U.S. 490, 498 (1975). 4 1 (1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. 2 3 4 5 6 7 8 Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of 9 Jacksonville, 508 U.S. 656, 663-664 (1993). Plaintiffs have the 10 burden of showing they have standing. 11 Wildlife, 504 U.S. 555, 562 (1992). 12 standing purposes that the plaintiff intends to engage in a course 13 of conduct arguably affected with a constitutional interest and 14 that there is a credible threat that the challenged provision will 15 be invoked against the plaintiff.” 16 Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) 17 (internal quotation marks and citations omitted) (emphasis added).2 18 “Thus, when the threatened enforcement effort implicates First 19 Amendment rights, the inquiry tilts dramatically toward a finding 20 of standing.” 21 enforcement standing is appropriate when the issue is a purely 22 legal one and it would be costly to comply with the challenged law 23 or regulation. 24 (1967). Id. Lujan v. Defenders of “[I]t is sufficient for Arizona Right to Life Political Even outside the First Amendment context, pre- See Abbott Labs v. Gardner, 387 U.S. 136, 149 25 26 2 27 28 The word “arguably” is important because standing must be decided before the merits are reached. George E. Warren Corp. v. U.S. E.P.A., 164 F.3d 676 (D.C. Cir. 1999). 5 1 Here, standing is appropriate. Vivid and Califa, 2 collectively, make, produce, and distribute adult films, and their 3 principle place of business is Los Angeles. 4 Plaintiffs Kross and Pierce perform in adult films produced Los 5 Angeles. 6 sent a letter to the “Producers of Adult Films in Los Angeles 7 County, indicating what steps the Department would take in 8 implementing and enforcing Measure B.” 9 also Compl. ¶¶ 55, 61, 76, 89, 97.) (Id. ¶¶ 10-11.) (Compl. ¶¶ 8-9.) On December 14, 2012, the Department (Docket No. 56 Ex. 1; see Vivid has presented evidence 10 that, as a result of Measurer B’s passage, it has stopped shooting 11 adult films in Los Angeles, and has thus lost the value of the non- 12 Measure B filming permits for which it has already paid. 13 Decl. ¶¶ 14 outside Los Angeles creates several difficulties: performers are 15 generally less available to film outside the County, fewer support 16 services are available outside the County, and fewer suitable 17 locations exist outside the County. 18 Kross attests that she prefers to act with a partner not wearing a 19 condom, for reasons that range from comfort to the message she 20 wishes to portray, and she also attests that Measure B has reduced 21 the number of roles in which she has had the opportunity to act. 20-21.)3 (Hirsch Vivid has also presented evidence that filming (Id. ¶¶ 28-32.) Moreover, 22 23 24 25 26 27 28 3 “In evaluating a plaintiff's standing at the motion to dismiss stage, a court may consider not only the allegations in the complaint, but also factual averments made by declaration or affidavit.” Am. Tradition Inst. v. Colorado, 876 F. Supp. 2d 1222, 1232 (D. Colo. 2012); Vildosola v. Hornbeak, No. CV 08-6590-VAP JEM, 2010 WL 1507100, at *8 (C.D. Cal. Feb. 25, 2010) (looking to declarations to determine standing at the motion to dismiss stage). “[A] suit will not be dismissed for lack of standing if there are sufficient allegations of fact—not proof—in the complaint or supporting affidavits.”) Gwaltney of Smithfield, Ltd. v. Chesapeake Bay, 484 U.S. 49, 65 (1987) (emphasis added). 6 1 (Kross Decl. ¶¶ 9-11, 15.) 2 (Pierce Decl. ¶¶ 7-11.) 3 concerns that Measure B implicates, the costs and consequences of 4 complying with Measure B, and the County’s expressed intent to 5 enforce Measure B, Plaintiffs have standing to challenge it. 6 Bayless, 320 F.3d at 1006; see also Abbott Labs, 387 U.S. at 149 7 (indicating that standing would be proper even outside the First 8 Amendment context). 9 Pierce makes similar attestations. In light of the potential First Amendment B. Plaintiffs’ State Law Preemption Claim 10 Plaintiffs contend that Cal. Labor Code § 144.7 and California 11 Code of Regulations Title 8 § 5193 preempt Measure B 12 101.) 13 supplemental jurisdiction, 28 U.S.C. § 1367, is the only means by 14 which this Court may preside over Plaintiffs’ state law preemption 15 claim. 16 “decline to exercise supplemental jurisdiction” over matters that 17 “raise[] a novel or complex issue of State law.” 18 v. Cnty. of Maricopa, 384 F.3d 990, 1022 (9th Cir. 2004). 19 Ninth Circuit has upheld a decision to decline supplemental 20 jurisdiction over a claim that state law preempted a county 21 ordinance governing adult entertainment sites. 22 F.3d at 1022. 23 remaining state-law claims raise delicate issues involving the 24 interpretation and application of Arizona law and the balance of 25 powers within Arizona between state and local government.” 26 Since similar concerns about the balance of power in California are 27 present in Plaintiffs’ novel preemption claim, this Court declines 28 supplemental jurisdiction. (Compl. ¶ Diversity jurisdiction is not alleged, and, therefore, However, 28 U.S.C. § 1367, grants courts the discretion to Id.; Dream Palace The Dream Palace, 384 The district court in that case explained that “the 7 Id. 1 C. Plaintiffs’ First Amendment Claim 2 Plaintiffs allege that requiring actors in adult films to wear 3 condoms violates their First Amendment rights. (Compl. ¶¶ 42, 51- 4 56.) 5 all conduct receives First Amendment protection; only expressive 6 conduct is considered speech and implicates the First Amendment. 7 See Nordyke v. King, 319 F.3d 1185, 1189 (9th Cir. 2003). 8 Supreme Court has applied the First Amendment to restrictions on 9 nude dancing, adult movie theaters, adult bookstores, and live Such a requirement is a restriction on conduct. However, not The 10 adult theater performances because the First Amendment protects 11 sexually explicit speech. 12 215, 224 (1990) (citing cases). 13 engaging in sexual intercourse for the purpose of making a 14 commercial adult film receives First Amendment protections. 15 Court is aware of no case that has analyzed this issue. 16 given the multitude of cases that have analyzed restrictions on 17 adult entertainment under the First Amendment, this Court concludes 18 that sexual intercourse engaged in for the purpose of creating 19 commercial adult films is expressive conduct, is therefore speech, 20 and therefore any restriction on this expressive conduct requires 21 First Amendment scrutiny. 22 FW/PBS, Inc. v. City of Dallas, 493 U.S. Presently at issue is whether The However, See id. Measure B’s stated purpose “is to minimize the spread of 23 sexually transmitted infections resulting from the production of 24 adult films in Los Angeles.” 25 58-1.) 26 unprotected speech, rather than the message the speech conveys, it 27 will be reviewed under intermediate scrutiny. 28 v. City of Cocoa Beach, 337 F.3d 1301, 1306-09 (11th Cir. (Docket No. 58-1 Ex. B, Docket No. Because this purpose focuses on the secondary effects of 8 See Fly Fish, Inc. 1 2003)(evaluating an ordinance that prohibited “totally nude” 2 dancing in “adult entertainment establishments” under the Renton 3 intermediate scrutiny framework); Heideman v. S. Salt Lake City, 4 348 F.3d 1182, 1196. (10th Cir. 2003) (evaluating a similar 5 ordinance under intermediate scrutiny); see generally Renton v. 6 Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986) (holding that 7 an ordinance that treated “theaters that specialize in adult 8 films” differently should be analyzed under a content neutral, 9 intermediate scrutiny framework because the ordinance was aimed at 10 the secondary effects of those theaters, not their content).4 11 4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs state that Measure B requires strict scrutiny review for three reasons. First, Measure B singles out adult films. But the Ordinance in Renton also involved a statute that singled out adult theaters. Renton, 475 U.S. at 47-48. Plaintiffs’ first argument, thus, fails. Second, Plaintiffs argue that Renton’s reasoning only applies in the context of zoning, because zoning does not prohibit what can be shown, only where something can be shown. Several Circuits have rejected that argument. See Fly Fish, 337 F.3d at 1306-09; Heideman, 348 F.3d at 1196. The Tenth Circuit has reasoned: The fallacy in Plaintiffs’ argument is to assume that the “adequate alternative avenues of expression” required under the Renton line of cases refers exclusively to location. Time, place, or manner regulations all are partial limitations, but each is partial in a different way. . . . “[M]anner” limitations require alternative ways in which a message may be communicated. A ban on nudity within sexually oriented businesses is a ‘manner’ regulation, and Plaintiffs have provided no reason to believe that there do not exist other ways to get their message across. Heideman, 348 F.3d at 1196 (citations omitted). Third, Plaintiffs suggest that requiring condoms “so interferes with the message that it essentially bans the message.” City of Erie v. Pap's A.M., 529 U.S. 277, 293 (2000) (pl. op.). Plaintiffs’ third argument is composed of two sub-arguments, one made at oral argument and the other made in briefing. During oral argument, Plaintiffs stated that Measure B prevents them from making adult films depicting sex during an historical period before condoms existed. The Court notes anachronisms need not detract from a story. Even assuming that condoms interfere with storylines, Plaintiffs’ argument, if accepted, would require every manner restriction to be reviewed under strict scrutiny because any manner restriction inherently (continued...) 9 1 Under intermediate scrutiny narrow tailoring, Interveners 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 (...continued) interferes with a large number of storylines. It is settled law, though, that manner restrictions only trigger intermediate scrutiny. See Fly Fish, 337 F.3d at 1306-09; Heideman, 348 F.3d at 1196; City of Erie v. Pap's A.M., 529 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 576 (1991). The condom requirement is analogous to requirements that nude dancers wear pasties and G-strings, both of which are de minimis restrictions on a sexually explicit message that trigger intermediate scrutiny. Pap’s, 529 U.S. at 294 (pl. op.) (“Any effect on the overall expression [on account of requiring dancers to wear pasties and G-strings] is de minimis.”); Schultz v. City of Cumberland, 228 F.3d 831, 847-48 (7th Cir. 2000) (noting that pasties and G-strings are analyzed under intermediate scrutiny because they are de minimis restrictions); Dream Palace, 384 F.3d at 1021 (favorably discussing Schultz). Plaintiffs’ briefing argues and their declarations state that not using a condom is intended to communicate a message. (See Kross Decl. ¶¶ 12-13 (attesting that [c]ondoms are a reminder of real-world concerns” such as “pregnancy and disease,” and that requiring condoms in adult films’ hinders those films’ aim to “suspend . . . concerns [about pregnancy and disease] and allow audience members to suspend their disbelief”.)) If condomless sex in adult films is inherently expressive, then requiring condoms would completely block that expression, and strict scrutiny would be required. Pap’s, 529 U.S. at 293. “[T]he Supreme Court has ‘extended First Amendment protection only to conduct that is inherently expressive.’” Wong v. Bush, 542 F.3d 732, 736 (9th Cir. 2008) (quoting Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 66 (2006)). An act is inherently expressive if the “likelihood [is] great that the message would be understood by those who viewed it.” Spence, 418 U.S. at 410-11. The Supreme Court has cautioned that the “inherently expressive” requirement means that words cannot be used to explain the message that conduct is meant to communicate, because “[i]f combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it.” Rumsfeld, 547 U.S. at 66. Like nude dancing, sexual intercourse performed for the production of adult films inherently expresses an erotic message. See Pap's, 529 U.S. at 301 (pl. op.) (recognizing erotic message of nude dancing); Dream Palace, 384 F.3d at 1021 (same). But, without the explanatory declarations, it is unclear what message condom-less sex conveys. Just as the requirement that nude dancers wear pasties and G-strings is viewed as a restriction on expressive conduct, so, too, is the requirement that adult film actors wear condoms a restriction on expressive conduct. Put differently, sexual intercourse performed for adult films and nude dancing both are expressive conduct, but requiring condoms for the former and pasties for the latter are only de minimis restrictions on expressive conduct. 10 1 must “demonstrate that the recited harms” to the substantial 2 governmental interest “are real, not merely conjectural, and that 3 the regulation will in fact alleviate those harms in a direct and 4 material way.”5 5 is “not invalid simply because there is some imaginable 6 alternative that might be less burdensome on speech,” Turner II, 7 520 U.S. at 217, the Interveners must prove that the statute does 8 not “burden substantially more speech than is necessary to further 9 the government’s legitimate interests.” Turner I, 512 U.S. at 664–65. While an ordinance Turner I, 512 U.S. at 665 10 (internal quotations omitted). 11 frequent, and universal testing in the adult film industry, 12 Plaintiffs allege sufficient facts, which for purposes of this 13 motion must be assumed true and construed in the light most 14 favorable to Plaintiffs, to show that Measure B’s condom 15 requirement does not alleviate the spread of STIs in a “direct and 16 material way.” 17 Thus, Interveners motion to dismiss Plaintiffs’ First Amendment 18 claim is DENIED. In light of the alleged effective, Turner I, 512 U.S. at 664–65; (Compl. ¶¶ 18-31.)6 19 20 21 5 Public health is a substantial government interest. Rubin v. Coors Brewing Co., 514 U.S. 476, 485 (1995). 6 22 23 24 25 26 27 28 Plaintiffs’ over and under inclusive claims are also relevant to narrow tailoring. (Compl. ¶¶ 78-90.) Thus, these claims would be more appropriately combined with Plaintiffs’ First Amendment claim, which for the reasons discussed above, survives dismissal. Cf. Sec'y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947 n.13 (1984) (“Overbreadth has also been used to describe a challenge to a statute that in all its applications directly restricts protected First Amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest. . . . Whether that challenge should be called ‘overbreadth’ or simply a ‘facial’ challenge, the point is that there is no reason to limit challenges to case-by-case ‘as applied’ challenges when the statute on its face and therefore in all its applications falls short of constitutional demands.”) 11 1 D. Plaintiffs’ Claim That Referendums May Not Implicate the 2 3 First Amendment Plaintiffs claim that referendums that implicate the First 4 Amendment are inherently invalid, because they do not have 5 legislative records and their findings deserve no deference. 6 claim appears to focus on Measure B’s condom requirement. 7 ¶¶ 51-56 (emphasizing Measure B’s condom-related findings).) 8 one court stated, “no court has accorded legislative deference to 9 ballot drafters.” This (Compl. As Daggett v. Webster, No. 98-223-B-H, 1999 WL 10 33117158, at *1 (D. Me. May 18, 1999). 11 deference because they are “better equipped than the judiciary to 12 ‘amass and evaluate the vast amounts of data’ bearing upon ... 13 complex and dynamic” issues. 14 Because the referendum process does not invoke the same type of 15 searching fact finding, a referendum’s fact finding does not 16 “justif[y] deference.” 17 Action Comm. v. Scully, 989 F. Supp. 1282, 1299 (E.D. Cal. 1998), 18 aff'd, 164 F.3d 1189 (9th Cir. 1999). 19 Legislatures receive Turner I, 512 U.S. at 665–66. California Prolife Council Political However, an undeferential review of Measure B’s findings does 20 not equate to an automatic resolution in Plaintiffs’ favor. 21 means that Interveners must have a record sufficient for Measure B 22 to withstand intermediate scrutiny, without the benefit of 23 deference. 24 920, 945 (9th Cir. 1995), vacated on other grounds, Arizonans for 25 Official English v. Arizona, 520 U.S. 43(1997)7 (“There is no basis It Yniguez v. Arizonans for Official English, 69 F.3d 26 27 28 7 “[A]t minimum, a vacated opinion still carries informational and perhaps even persuasive or precedential value.” DHX, Inc. v. Allianz AGF MAT, Ltd., 425 F.3d 1169, 1176 (9th Cir. 2005). 12 1 in the record to support the proponents’ assertion that any of the 2 broad societal interests on which they rely 3 provisions of Article XXVIII. 4 effect is of particular significance given that . . . Article 5 XXVIII is a ballot initiative and thus was subjected to neither 6 extensive hearings nor considered legislative analysis before 7 passage.”) 8 claim that referendums may not implicate the First Amendment. 9 are served by the The absence of any evidence to this Accordingly, the Court GRANTS dismissal of Plaintiffs’ E. Plaintiffs’ Prior Restraint Claim 10 “The term prior restraint is used to describe administrative 11 and judicial orders forbidding certain communications when issued 12 in advance of the time that such communications are to occur.” 13 Alexander v. United States, 509 U.S. 544 (1993). 14 requirement is a prior restraint on speech and therefore bears a 15 heavy presumption against its constitutionality.” 16 of Seattle, 569 F.3d 1029, 1037 (9th Cir. 2009) (internal 17 quotation marks and citation omitted). 18 have found that a prior restraint exists when an individual must 19 obtain a permit to engage in nude dancing. 20 Anaheim, 826 F. Supp. 336, 342 (C.D. Cal. 1993); Santa Fe Springs 21 Realty Corp. v. City of Westminster, 906 F. Supp. 1341, 1363 (C.D. 22 Cal. 1995) (citing Dease and applying that case’s logic). 23 “A permitting Berger v. City Courts in this district Dease v. City of Interveners claim that Measure B is not a prior restraint 24 because it does not require a permit to show films, it only 25 requires a permit to film certain types of films. 26 distinction is unhelpful. 27 invalid because they chill speech from occurring. “The presumption 28 against prior restraints is heavier-and the degree of protection This Prior restraints are presumptively 13 1 broader-than that against limits on expression imposed by criminal 2 penalties. 3 our law: a free society prefers to punish the few who abuse rights 4 of speech after they break the law than to throttle them and all 5 others beforehand.” 6 559 7 prior restraint to require a permit for a film to be shown, a book 8 to be published, or a painting to be displayed but not a prior 9 restraint to require a permit for a movie to be filmed, a book to Behind the distinction is a theory deeply etched in (1975). Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, This policy concern would be upended if it were a 10 be written, or a painting to be painted. 11 which requires producers to obtain a permit before shooting “any 12 film, video, multimedia or other representation of sexual 13 intercourse” is a prior restraint.8 14 Therefore, Measure B, Plaintiffs argue that Measure B does not provide sufficient 15 procedural safeguards, does not have narrowly tailored 16 requirements, and gives the County unbridled discretion. 17 Court generally agrees.9 The 18 8 19 20 21 22 23 24 25 26 27 28 Interveners are incorrect in arguing that Plaintiffs must allege that they have applied for a permit in order to challenge Measure B. “Plaintiffs who challenge a permitting system are not required to show that they have applied for, or have been denied, a permit. . . . They must only have declined to speak, or have modified their speech, in response to the permitting system.” Kaahumanu v. Hawaii, 682 F.3d 789, 796 (9th Cir. 2012); see id. (striking down a broad revocation and suspension provision even though “the record indicate[d] that permits . . . have been issued as a matter of course, and that the discretionary power reserved in [the revocation and suspension provisions] has never been exercised.”) As outlined in the “Background” section and “Standing” subsection, Plaintiffs have modified their speech because of Measure B. 9 Plaintiffs’ Opposition to the Motion to Dismiss makes a broad, although conclusory, argument that requiring a permit itself is an invalid prior restraint. Docket No. 53 at 13-14. This argument, was not made in Plaintiffs’ Preliminary Injunction brief. (continued...) 14 1 1. Procedural Safeguards 2 Plaintiffs focus on the procedural safeguards relating to 3 revoking Measure B permits.10 4 entertainment, as Measure B does, must provide the following 5 procedural safeguards: “the licensor must make the decision 6 whether to issue the license within a specified and reasonable 7 time period during which the status quo is maintained, and there 8 must be the possibility of prompt judicial review in the event 9 that the license is erroneously denied.” Prior restraints that target adult FW/PBS, Inc. v. City of 10 Dallas, 493 U.S. 215, 228 (1990) modified on other grounds, City 11 of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 776 12 (2004) (a prior restraint targeting adult businesses must “assure 13 prompt judicial review of an administrative decision denying a 14 license”). 15 and revocations as well as license denials.” 16 City of San Diego, 183 F.3d 1108, 1114 (9th Cir. 1999). 17 suspensions and revocations differ from the denial of a license 18 application in that “preservation of the status quo means that the 19 suspension or revocation cannot be enforced, and the business is 20 allowed to continue to operate under its license,” until there has 21 been a judicial determination. 22 Department to revoke and suspend a permit, and once revocation or “[T]hese considerations apply to license suspensions Id. 4805 Convoy, Inc. v. License Measure B allows for the 23 9 24 25 26 27 28 (...continued) Docket No. 55 at 8-10. Because Plaintiffs state a valid prior restraint claim without this argument, the Court need not analyze it now. 10 The procedural safeguards claims were raised in the complaint, and argued, though only with respect to revocations and suspensions, in Plaintiffs’ preliminary injunction motion. (Compl. ¶ 96; Docket No. 55 at 9:7-14 (citing provision of Measure B regarding suspensions and revocations). 15 1 suspension has occurred, a permit holder must “cease filming any 2 adult film.” 3 are, thus, unconstitutional because they provide for suspensions 4 and revocations before a judicial determination. 5 § 11.39.110 (D), (H). These provisions of Measure B 2. Unbridled Discretion 6 Additionally, Government officials cannot have unbridled 7 discretion over permits that implicate First Amendment activity. 8 G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1082 (9th 9 Cir. 2006). Here, in order to receive and keep a permit, the 10 following is required: pay for the permit, complete an 11 application, conduct blood-borne pathogen training, post the 12 permit on the worksite, and use condoms during anal and vaginal 13 sex. 14 are clear and do not leave much, if any, room for discretion. 15 Another Measure B provision, though, is more problematic. 16 No. 53 at 14:17-15:4.)11 § 11.39.080-11.39.110; (see Compl. ¶ 58.) These criteria (Docket 17 11 18 19 20 21 22 23 24 25 26 27 28 Measure B states: “Upon successful completion of the permit application process described in subsection A of this section, the department shall issue an adult film production public health permit to the applicant. The adult film production public health permit will be valid for two years from the date of issuance, unless revoked.” § 11.39.080(B). In analyzing another statute that singled out adult entertainment, the Supreme Court held that “the licensor must make the decision whether to issue the license within a specified and reasonable time period.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228, 1990). Here, in light of the obligation to, when possible, interpret an ordinance in a way that maintains its constitutionality, the Court construes the word “upon” to place sufficiently specific and reasonable time limit for permit authorizations. See New York v. Ferber, 458 U.S. 747, 769 (1982) (discussing the importance of interpreting federal law to preserve its constitutionality); see also Beaulieu v. City of Alabaster, 454 F.3d 1219, 1232 (11th Cir. 2006) (essentially applying the maxim to ordinances); Int'l Soc. for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 822 (5th Cir. 1979) (same). Because Webster’s (available at http://www.merriam-webster.com/) defines “upon” to mean “on,”, (continued...) 16 1 Measure B, also, provides that after an administrative 2 review, “[t]he Department may . . . modify, suspend, revoke or 3 continue all such action previously imposed upon a permittee 4 pursuant to this chapter or impose any fine imposed by law for 5 violations of this chapter or any other law or standards affecting 6 public health and safety, including but not limited to [certain 7 laws and regulations].” 8 under some circumstances, for the denial of permits when adult 9 film makers violate unnamed, undescribed “standards affecting 10 11 public health.” § 11.39.110(F). Thus, Measure B allows, This is unbridled discretion.12 For similar reasons, portions of § 11.39.110(E) are 12 unconstitutional. 13 health or safety is found or is reasonably suspected,” that 14 provision allows the department to “immediately suspend . . . [a] 15 permit, initiate a criminal complaint and/or impose any fine If there is “any immediate danger to the public 16 17 18 19 20 21 22 23 24 25 26 27 28 11 (...continued) Measure B indicates that applications will be immediately reviewed. 12 Plaintiffs also argue that the Department has unbridled discretion in determining which blood-borne pathogen training class meets Departmental approval. (Docket No. 53 at 15:5-11.) The Court need not address this issue because Plaintiffs have otherwise stated a valid prior restraint claim. (See Docket No. 55 at 8-10). However, the proper issue is whether the Department has too much discretion in terms of who receives a permit, not whether they have too much discretion in selecting appropriate training classes. G.K. Ltd., 436 F.3d at 1082 (9th Cir. 2006) (“The requirement of sufficient direction for City officials seeks to alleviate the threat of content-based, discriminatory enforcement that arises where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit”) (internal quotation marks and citation omitted). The appropriate way to challenge the training course requirement, or any other requirement (including the requirement to get a permit), is to do so on narrow tailoring grounds. Berger, 569 F.3d at 1041. Since Plaintiffs do not argue that the blood training course fails a narrow tailoring analysis, the Court will not analyze the issue. 17 1 permitted by [Measure B].” The provision also states: “Immediate 2 danger to the public health and/or safety shall include any 3 condition, based upon inspection findings or other evidence, that 4 can cause, or is reasonably suspected of causing, infection or 5 disease transmission, or any known or reasonably suspected 6 hazardous condition.” 7 limited to Measure B’s requirements, and it applies to conditions 8 “reasonably suspected” to be “suspected of causing” the 9 transmission of unnamed diseases. This provision is too broad–it is not The department is given no 10 guidance as what types or diseases or what types of transmission 11 methods § 11.39.110(E) applies. 12 to authorize revoking a permit if a cameraman were working with a 13 cold. 14 unconstitutional. The discussed portions of § 11.39.110(E), therefore, are 3. Narrow Tailoring 15 16 Indeed, § 11.39.110(E) would seem Pursuant to the most lenient scrutiny that Measure B could be 17 reviewed under, a prior restraint’s provisions must be narrowly 18 tailored such that they do “not burden substantially more speech 19 than is necessary to achieve a substantial government interest.” 20 Berger, 569 F.3d at 1041. 21 prohibits the production of any adult film by any entity that has 22 had a permit suspended or revoked.” 23 Interveners bear the burden of justifying a prior restraint’s 24 restrictions, because an alternative to revoking the permit Plaintiffs allege that “Measure B also (Compl. ¶ 58.)13 Because 25 26 27 28 13 A Measure B permit is issued to adult film producers. See generally § 11.39.080(A). The permit extends for two years, and is applicable to all films a producer makes. See § 11.39.080(B). Thus, revocation or suspension means a permit holder cannot produce any adult film. 18 1 completely would be revoking the permit only as to the offending 2 film, and because Interveners do not address Plaintiffs’ claim 3 that a total revocation is improper, Plaintiffs’ prior restraint 4 claim survives. 5 (holding that “the existence of obvious, less burdensome 6 alternatives is a relevant consideration in determining whether 7 the ‘fit’ between ends and means is reasonable”) (internal 8 quotation marks omitted); Docket No. 49 at 12-15 (ignoring 9 Plaintiffs’ revocation argument). 10 Id. at 1035 (discussing the burden), 1041 Plaintiffs claim that Measure B is not narrowly tailored 11 because, although the condom requirement applies only to vaginal 12 and anal sex, a Measure B permit is required to film much more. 13 permit is required for “adult films,” which are defined as “any 14 film, video, multimedia or other representation of sexual 15 intercourse in which performers actually engage in oral, vaginal, 16 or anal penetration, including, but not limited to, penetration by 17 a penis, finger, or inanimate object; oral contact with the anus 18 or genitals of another performer; and/or any other sexual activity 19 that may result in the transmission of blood and/or any other 20 potentially infectious materials.”14 21 have stated a claim on this issue. A The Court finds Plaintiffs 22 23 24 25 26 27 28 14 Although Plaintiffs have not raised the issue, the following clause of the “adult films” definition is problematic: “and/or any other sexual activity that may result in the transmission of blood and/or any other potentially infectious materials.” The use of “or” indicates that filmed “sexual activity” that “results in the transmission of . . . other potentially infectious materials” requires a Measure B permit. Sexual activity could mean many things. Potentially, kissing could qualify, as saliva may contain infectious materials. Therefore, the portion of adult film’s definition discussed in this footnote is unconstitutionally overbroad and vague. 19 1 As discussed, Measure B’s purpose is to prevent the spread of 2 STIs, and requiring condoms is the means by which Measure B seeks 3 to prevent their spread. 4 B’s “findings and declarations”), § 3 (“purpose and intent”). 5 Since Measure B only requires condoms for vaginal and anal sexual 6 intercourse, and since Measure B’s purpose is condoms-focused, 7 Plaintiffs have stated a claim that the permit requirement is not 8 narrowly tailored because it applies to adult films without 9 vaginal or anal sexual intercourse.15 (See Docket No. 58 Ex. B § 2 (Measure 10 F. Plaintiffs’ Fees Claim 11 Prior restraints may only impose permit fees if they are 12 revenue neutral, because the Government may not charge for the 13 privilege of exercising a constitutional right. 14 Pennsylvania, 319 U.S. 105, 113-14 (1943); Cox v. New Hampshire, 15 312 U.S. 569, 577 (1941). 16 applied this revenue-neutral rule to permit fees on adult 17 entertainment businesses. 18 v. Kenton Cnty. Fiscal Court, 515 F.3d 485, 510 (6th Cir. 2008). 19 The Eighth Circuit, though, declined to do so. 20 v. City of Coates, 284 F.3d 884, 890-891 (8th Cir. 2002). 21 analyzing the contrary Eighth Circuit authority, the Eleventh See Murdock v. The Sixth and Eleventh Circuits have Fly Fish, 337 F.3d at 1314; 729, Inc. Jakes, Ltd., Inc. In 22 15 23 24 25 26 27 28 The Court rejects Plaintiffs’ argument in its preliminary injunction brief that Measure B’s criminal and civil penalties are not narrowly tailored, and, therefore, constitute an invalid prior restraint. Prior restraint analysis looks to the requirements of and processes associated with obtaining and keeping a permit, not criminal penalties. Cf Conrad, 420 U.S. at 559 (“The presumption against prior restraints is heavier-and the degree of protection broader-than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.”) 20 1 Circuit noted that even though nude dancing was at the “outer 2 perimeters of the First Amendment,” because the government could 3 not completely ban erotic dancing, the government cannot tax it 4 without limit. 5 the Eleventh Circuit’s logic and finds it applies to Measure B’s 6 fees. 7 Fly Fish, 337 F.3d at 1315. The Court agrees with Courts applying the revenue-neutral rule to adult 8 entertainment require the government to prove that revenues merely 9 cover “the costs of administering [the] licensing program.” Id. 10 at 1314-15; 729, 515 F.3d at 510. 11 this case, $2,000-$2,500, is relatively minimal, the Court will 12 not assume that it is constitutionally permissible. 13 337 F.3d at 1315 (holding as unconstitutional a $1,250 fee per 14 adult business because the “City . . . conducted no real 15 accounting of the costs of administering its licensing program”). 16 Since the Complaint does not allege facts suggesting that the fees 17 are revenue neutral, the fees’ claim survives the motion to 18 dismiss. 19 later, that Interveners provide no evidence of revenue neutrality. 20 21 22 Even though the permit fee in See Fly Fish, The Court notes, for reasons that will be relevant (See Docket No. 57 at 15:14-18.) G. Plaintiffs’ Vagueness Claim Under the void-for-vagueness doctrine, “legislatures [are 23 required] to set reasonably clear guidelines for law enforcement 24 officials and triers of fact in order to prevent arbitrary and 25 discriminatory enforcement.” 26 572-73 (1974). 27 narrowing state court interpretation, is capable of reaching 28 expression sheltered by the First Amendment, the doctrine demands Smith v. Goguen, 415 U.S. 566, “Where a statute’s literal scope, unaided by a 21 1 a greater degree of specificity than in other contexts.” 2 573. 3 lines” such that “men of common intelligence [are] not forced to 4 guess at the meaning of the criminal law.” 5 quotation marks and citations omitted). 6 Id. at All that is required is that there be “reasonably clear Id. at 574 (internal Plaintiffs’ opposition brief and complaint conclusorily state 7 that some of the terms in Measure B are unconstitutionally vague. 8 (Docket No. 53 at 16:14-17; Compl. ¶¶ 71-77.) 9 sufficient reason to dismiss the claim. 10 This is a See Iqbal, 556 U.S. at 678-79. 11 Measure B defines three of Plaintiffs’ challenged terms: 12 “adult film,” “exposure control plan,” and “producer of adult 13 film.”16 14 terms are undefined, they are given their “ordinary and natural 15 meaning,” and courts employ “general usage dictionaries to 16 determine” that meaning. 17 (9th Cir. 2013). 18 management-level employees” complete blood borne pathogen 19 training. 20 “principal” and “management-level employees” are unclear. Several other terms are not defined. When statutory Castro v. Terhune, 712 F.3d 1304, 1312 Measure B requires that “principal and § 11.39.080. Plaintiffs claim that the terms Webster 21 16 22 23 24 25 26 27 28 For reasons discussed in the prior restraint analysis, “adult film” must be narrowed in scope. After striking the offending portions of that term’s statutory definition, and adding no new terms, it would be defined as “any film, video, multimedia or other representation of sexual intercourse in which performers actually engage in vaginal or anal penetration by a penis.” § 11.39.010. “Exposure control plan” is defined as: “a written plan that meets all requirements of Title 8 California Code of Regulations sections 3203 and 5193, to minimize employees' risk of exposure to blood or potentially infectious material.” § 11.39.050. “Producer of adult film” is defined as: “any person or entity that produces, finances, or directs, adult films for commercial purposes.” § 11.39.075. 22 1 defines “principal,” in relevant part, as “a person who has 2 controlling authority or is in a leading position.” 3 defined as “the collective body of those who manage or direct an 4 enterprise,” and manage is defined as “to exercise executive, 5 administrative, and supervisory direction of <manage a business>.” 6 These terms are sufficiently clear.17 Management is Plaintiffs also challenge the following terms: “commercial 7 8 purposes,” “reasonably suspected,” “hazardous condition,” and 9 “interference.” (Docket No. 53 at 16:15-16.) Because Plaintiffs 10 do not analyze these terms’ meaning or their potential for 11 confusion, for purposes of this Motion the Court finds that they 12 are not vague. 13 I. Plaintiffs’ Due Process Claim 14 Plaintiffs assert that Measure B violates their due process 15 rights. The Fourteenth Amendment prohibits the deprivation “of 16 life, liberty, or property without due process of law.” 17 process requires “some form of hearing before an individual is 18 finally deprived of [a protected] interest.” 19 Eldridge, 424 U.S. 319, 333 (1976). 20 analyzed under the Mathews v. Eldridge weighing test. 21 335. 22 their due process claims generally dismiss the review procedures 23 to which license holders and applicants are entitled under Measure 24 B. 25 Dist. L.R. 7-5 (moving papers must provide “a brief but complete 26 memorandum in support thereof and the points and authorities upon Matthews v. Due process claims should be See id. at However, Plaintiffs do not engage in such a weighing, and (Compl. ¶¶ 91-98); § 11.39.110(B),(D),(E)(2); see also Cent. 27 17 28 Due All definitions are available at http://www.merriam-webster.com/. 23 1 which the moving party will rely.”). 2 dismissal of Plaintiffs’ due process claims, with one exception 3 discussed below. 4 largely duplicate of their prior restraint arguments. 5 The Court, therefore, GRANTS Regardless, Plaintiffs’ due process arguments However, Plaintiffs make a Fourth Amendment challenge in the 6 due process section of the Complaint that warrants further 7 consideration. 8 authorizes an unconstitutional system of warrantless searches and 9 seizures. (Compl. ¶ 95.)18 Plaintiffs claim that Measure B In a closely regulated industry, administrative 10 warrantless searches are permitted so long as the following 11 conditions are met: (1) “[t]here is [a] ‘substantial’ government 12 interest that informs the regulatory scheme pursuant to which 13 inspection is made,” (2) “warrantless inspection is necessary to 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 It is an open question whether a facial challenge of an administrative search scheme on Fourth Amendment grounds is permissible. 832 Corp. v. Gloucester Twp., 404 F. Supp. 2d 614, 620 (D.N.J. 2005) (noting the issue is unresolved, but assuming that such a challenge is allowable). In preliminarily enjoining an ordinance that permitted warrantless administrative searches of “Adult-Oriented Businesses,” a district court in this circuit noted: There is arguably a question as to whether a party can assert a facial challenge to a statute permitting warrantless administrative searches. See, e.g., S & S. Pawn Shop Inc. v. City of Del City, 947 F.2d 432, 439-40 (10th Cir.1991) (identifying the issue, but declining to decide it). Despite some hesitation, the court entertains such a challenge here because the ordinances vest too much discretion in City officials conducting the inspection to qualify as a valid administrative inspection scheme. See City of Chicago v. Morales, 119 S.Ct. 1849, 1999 WL 373152 *15 (June 10, 1999) (Breyer, J., Concurring) (“The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case”). Le v. City of Citrus Heights, No. CIV.S-98-2305WBS/DAD, 1999 WL 420158, at *6 n.6 (E.D. Cal. June 15, 1999). Finding Le’s facts sufficiently analogous and its reasoning persuasive, this Court concludes a facial challenge is permissible. 24 1 further the regulatory scheme,” and (3) the “inspection program, 2 in terms of certainty and regularity of its application, must 3 provide a constitutionally adequate substitute for a warrant” 4 (i.e. “it must advise the owner of the commercial premises that 5 the search is being made pursuant to the law and has a properly 6 defined scope, and it must limit the discretion of the inspecting 7 officers”). 8 (citations omitted). 9 limits the discretion of the inspectors, we have observed that it New York v. Burger, 482 U.S. 691, 703 (1987) “In addition, in defining how a statute 10 must be carefully limited in time, place, and scope.” 11 (internal quotation marks and citation omitted). 12 Id. Plaintiffs’ Fourth Amendment allegations and briefing focus 13 on Burger’s requirement that administrative searches be limited in 14 time, place, and scope. 15 states: 17 18 19 20 22 23 24 25 26 27 Specifically, Measure B The county health officer may enter and inspect any location suspected of conducting any activity regulated by this chapter, and, for purposes of enforcing this chapter, the county health officer may issue notices and impose fines therein and take possession of any sample, photograph, record or other evidence, including any documents bearing upon adult film producer’s compliance with the provision of the chapter. Such inspections may be conducted as often as necessary to ensure compliance with the provisions of this chapter. 16 21 (Compl. ¶ 95.) § 11.39.130. The “any location” language of § 11.39.130 violates the Fourth Amendment. In upholding warrantless administrative searches, courts emphasize the limited nature of what may be searched. United States v. Delgado, 545 F.3d 1195, 1203 (9th Cir. 2008) (holding that a statute was constitutional in part because it was “limited to commercial vehicles,”); Burger, 482 U.S. at 711 (emphasizing that the statute was limited to “vehicle dismantling 28 25 1 business[es]”). Given that adult filming could occur almost 2 anywhere, Measure B would seem to authorize a health officer to 3 enter and search any part of a private home in the middle of the 4 night, because he suspects violations are occurring. 5 unconstitutional because it is akin to a general warrant. 6 Therefore, the Court DENIES dismissal of Plaintiffs’ Fourth 7 Amendment claim. 8 Cir. 1985) (holding that a statute “authoriz[ing] any officer, 9 employee, or agent of the Department to enter and inspect any This is See Rush v. Obledo, 756 F.2d 713, 717, 722 (9th 10 place providing personal care, supervision, and services at any 11 time, with or without notice, to secure compliance with, or to 12 prevent a violation of, any applicable statute” unconstitutional 13 because it “permitt[ed] general searches at any time of any place 14 providing care and supervision to children”); United States v. 15 4,432 Mastercases of Cigarettes, More Or Less, 448 F.3d 1168, 1180 16 (9th Cir. 2006) (stating that the procedural safeguards of 17 warrantless administrative searches that implicate homes must be 18 strong and citing Rush as “str[iking] down as unconstitutional a 19 regulation that enabled warrantless searches of family-home day 20 care facilities because it failed to place any limits on the time 21 of searches, the area that could be searched, or the regularity of 22 searches”).19 23 IV. Preliminary Injunction Analysis 24 Because Plaintiffs’ First Amendment claim regarding Measure 25 B’s condom requirement is unlikely to succeed on the merits, the 26 19 27 28 Under very different circumstances, a narrow and constrained warrantless administrative search of a home is permissible. See Rush, 756 F.2d at 717 (upholding such a search when regulations limited a statute’s reach). 26 1 Court DENIES a preliminary injunction on that issue. As detailed 2 below, the Court GRANTS a preliminary injunction on Plaintiffs’ 3 other claims that survived the motion to dismiss. 4 A. Plaintiffs’ First Amendment Claim 5 The First Amendment claim, which focuses on narrow tailoring 6 (and specifically testing as an adequate alternative to condoms), 7 is unlikely to succeed on the merits. 8 First Amendment analysis on arguing that Measure B’s condom 9 requirement should be reviewed under strict scrutiny. Plaintiffs focus their (Docket No. 10 55 at 7-8.) However, for the reasons discussed in the motion to 11 dismiss analysis, intermediate scrutiny should be employed. 12 Plaintiffs also make a narrow tailoring argument. Id. at 13 5:3-6. 14 B targets “are real, not merely conjectural, and that [Measure B] 15 will in fact alleviate those harms in a direct and material way.” 16 Turner I, 512 U.S. at 664–65. 17 Health Officer at the Los Angeles County Department of Public 18 Health, has stated: 19 20 21 22 23 24 25 26 27 Interveners have presented evidence that the harms Measure Jonathan Fielding, the Director and Since 2004 DPH received reports of 2,396 cases of Chlamydia (CT), 1389 cases of gonorrhea (GC), and five syphilis cases among AFI performers; 20.2% of performers diagnosed with STD had one or more repeat infections within a one year period. Between 2004 and 2008, repeat infections were reported for 25.5% of individuals. Due to the failure to routinely screen for rectal and oral pharyngeal infections, a sustained high level of endemic disease among AFT workers persists. Furthermore, these disease rates and reinfection rates are likely to be significantly underestimated as rectal and oral screening is not done routinely and these anatomic sites are likely to be a reservoir for repeat reinfection. Analyses of2008 data also indicated that AFI performer experience significantly higher rates of infection (20%) than the general public (2.4%) or in the area of the County (SPA 6) experiencing the highest rates of STDs (4.5%). 28 27 1 2 3 4 5 6 7 Data is less clear for HIV since occupation is not reported in HIV/AIDS reports. Since 2004, AIM has reported 25 cases of HIV. However, it is difficult to confirm the number of actual performers infected with HIV/AIDS as not all those tested are current performers and may have other roles in tl1e AFI, or are partners of an AFI performer, or may otherwise be referred to AIM for testing. AIM claims that a minority of the 25 cases are performers, but even if this is accurate, it is reasonable to assume that some of the remaining 25 infected individuals were tested because they wished to work in the AFI in Los Angeles or were partners of AFI performers. 8 (Docket No. 58-1 Ex. A at 2.) Plaintiffs, by contrast, have 9 presented evidence from individuals in the adult film industry, 10 but not in the public health or medical profession, who claim 11 testing is so effective and universal that condoms are 12 unnecessary. 13 Interveners’ evidence are in tension. 14 the Department of Public Health’s detailed explanation compelling, 15 especially in light of its unique role in protecting the 16 community’s health. 17 (See, e.g., Hirsch Decl. ¶¶ 8-16). Plaintiffs’ and However, the Court finds Interveners’ evidence also indicates that Measure B does not 18 “burden substantially more speech than is necessary to further the 19 government's legitimate interests.” 20 Measure B “need not be the least restrictive or least intrusive 21 means available.” 22 evidence indicates that testing for STIs has proven insufficient 23 to prevent their spread. 24 testing is Plaintiffs’ proffered alternative, and because evidence 25 indicates it may be ineffective, requiring condoms is a 26 permissible way (at least at this stage) to target and prevent the Turner I, 512 U.S. at 665. Berger, 569 F.3d at 1041. Here, Interveners’ (Docket No. 58-1 Ex. A at 2.) 27 28 28 Because 1 spread of STIs. For these reasons, Plaintiffs’ claim challenging 2 the condom requirement is not likely to succeed on the merits.20 3 B. Plaintiffs’ Remaining Claims 4 Plaintiffs’ claims concerning the following Measure B 5 provisions are likely to succeed on the merits: the fees 6 provision, the administrative search provision, and the prior 7 restraint provisions explicitly found to have survived the motion 8 to dismiss. 9 concerning Measure B’s broad revocation policy (i.e. that a The fees provision and the prior restraint provision 10 revoked permit means a producer cannot work on any adult films, 11 instead of simply the offending film) are likely to succeed on the 12 merits because Interveners’ have offered no evidence that these 13 provisions are narrowly tailored. 14 (not discussing the broad revocation policy), 15:14-18 (faulting 15 Plaintiffs for providing no evidence concerning the fee’s (See Docket No. 57 at 14-15 16 20 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ over and under inclusive arguments also bear on narrow tailoring. However, these arguments fail to show that Plaintiffs are likely to succeed on the merits. Plaintiffs fault Measure B for not applying generally to the entire population of Los Angeles County. (Docket No. 55 at 13:14-16.) However, Measure B would be patently unconstitutional if it applied to individuals having sex in a private place for non-commercial purposes. Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. at 562 (2003). Sex in public places appears to be already prohibited by public decency laws. See Los Angeles County Code § 13.22.020. Plaintiffs’ also claim that Measure B “applies only to adult films produced for a commercial purpose, to the exclusion of non-commercial films whose performers are exposed to risks (accepting arguendo the Measure’s assumptions) that are the same as those for performers in commercial adult entertainment.” (Docket No. 55 at 13:14-16.) But Plaintiffs provide no evidence about these “non-commercial” films, such as the percent of adult films that are non-commercial and that could be regulated without violating the type of privacy rights expressed in Griswold and Lawrence. Besides, intermediate scrutiny does not require a perfect fit, Berger, 569 F.3d at 1041, and at this stage Interveners have provided evidence that the adult film industry is uniquely problematic in the spread of STIs. (Docket No. 58-1 Ex. A.) 29 1 reasonableness, but providing no evidence that the fee is revenue 2 neutral)); Turner I, 512 U.S. at 664–65 (indicating that 3 Interveners bear the burden of proving narrow tailoring). 4 remaining provisions are likely to succeed on the merits because, 5 as discussed previously, Measure B’s text indicates they are 6 unconstitutional. 7 The Once a Plaintiff shows that a constitutional rights claim is 8 likely to succeed, the remaining preliminary injunction factors 9 weigh in favor of granting an injunction. Melendres v. Arpaio, 10 695 F.3d 990, 1002 (9th Cir. 2012))([T]he deprivation of 11 constitutional rights unquestionably constitutes irreparable 12 injury. . . . 13 the violation of a party's constitutional rights.”) (internal 14 quotation marks and citations omitted); Klein v. City of San 15 Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (“The balance of 16 equities and the public interest thus tip sharply in favor of 17 enjoining the ordinance. 18 preliminary injunctions to a plaintiff like Klein who is likely to 19 succeed on the merits of his First Amendment claim, we see no 20 reason to remand for further proceedings with respect to Klein's 21 motion in this case.”) [I]t is always in the public interest to prevent As our caselaw clearly favors granting 22 C. Severability 23 Whether Measure B’s offending provisions are severable is a Leavitt v. Jane L., 518 U.S. 137, 139 24 “a matter of state law.” 25 (1996). 26 whenever possible to preserve the validity of the remainder of the 27 statute.” 28 1384 (1992). “Invalid provisions of a statute should be severed Briseno v. City of Santa Ana, 6 Cal. App. 4th 1378, “The California Supreme Court has held that there 30 1 are three criteria for severability under California law: the 2 provision must be grammatically, functionally, and volitionally 3 separable.” 4 1111, 1114 (9th Cir. 2003). 5 depends on whether the remainder . . . is complete in itself and 6 would have been adopted by the legislative body had the latter 7 foreseen the partial invalidity of the statute . . . or 8 constitutes a completely operative expression of the legislative 9 intent . . . [and is not] so connected with the rest of the Valley Outdoor, Inc. v. Cnty. of Riverside, 337 F.3d However, “[t]he final determination 10 statute as to be inseparable.” 11 Deukmejian, 48 Cal.3d 805, 821 (1989). 12 Id. (quoting Calfarm Ins. Co. v. As an initial matter, Measure B contains an unambiguous 13 severability clause: “If any provision of this Act, or part 14 thereof, is for any reason held to be invalid or unconstitutional, 15 the remaining provisions shall not be affected, but shall remain 16 in full force and effect, and to this end the provisions of the 17 Act are severable.” 18 establishes that the voters wanted Measure B, even if portions 19 were found unconstitutional, to survive, if at all possible. 20 “Although not conclusive, a severability clause normally calls for 21 sustaining the valid part of the enactment.” 22 Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821 (1989) Docket No. 58 Ex. B § 8.21 This clause 23 “An enactment passes the grammatical test where the language 24 of the statute is mechanically severable, that is where the valid 25 and invalid parts can be separated by paragraph, sentence, clause, 26 phrase or even single words.” Barlow v. Davis, 72 Cal. App. 4th 27 21 28 It is unclear where this severability clause was codified within the Los Angeles County Code. 31 1 1258 (1999). 2 its relevant provisions. 3 concerning revoking and suspending Measure B permits.22 4 The permit fee requirement is easily separable from The same is true of the provisions The provision authorizing administrative searches is self 5 contained, so enjoining it creates no grammatical issues. 6 11.39.130. 7 § In § 11.39.110(F), which concerns the Department’s authority 8 to revoke a permit and levy other penalties against a permittee 9 after an administrative review, the following words can be 10 stricken without any grammatical problems: “modify, suspend, 11 revoke or any other laws or standards affecting public health and 12 safety, including but not limited to the Los Angeles County Code, 13 the California Health and Safety Code, the blood borne pathogen 14 standard, California Code of Regulations Title 8, section 5193 or 15 the exposure control plan of the permittee, or any combination 16 thereof, or for interference with a county health officer's 17 performance of duty.” 23 The provision requiring permits for 18 22 19 20 21 22 Had the Court only enjoined the revocation and suspension provisions of Measure B on grounds that the status quo is disrupted before judicial review, the Court would have only enjoined the County from “enforcing a license suspension or revocation for ninety days after an administrative appeal becomes final, the time allowed for filing a writ of administrative mandamus under the California statutory scheme.” Convoy, 183 F.3d at 1116. 23 23 24 25 26 27 28 That is to say, § 11.39.110(F) paragraph makes grammatical sense when read as follows: “The department may, after an administrative review or waiver thereof continue all such action previously imposed upon a permittee pursuant to this chapter or impose any fine imposed by law for violations of this chapter.” Thus, what remains of § 11.39.110(F) is the Department’s authority to initiate fines or criminal charges, as provided for in Measure B for Measure B violations only, against Measure B violators. Of course, this order affects no other provision of law outside of Measure B. Although the term “modify” has not previously been discussed, it is also unconstitutional as its vagueness permits (continued...) 32 1 anything other than vaginal or anal sexual intercourse can be 2 similarly successfully edited.24 3 emergency fines and revocations, § 11.39.110(E), is not completely 4 self contained, as it continues to § 11.39.110(E)(1)-(2). 5 Therefore, subsections (1) and (2) of § 11.39.110(E) are also be 6 enjoined. 7 The provision concerning Under the functionality test, the Court must decide whether 8 Measure B remains “operational” without the offending language. 9 Valley Outdoor, 337 F.3d at 1114. Here, adult film actors must 10 still use condoms. 11 permit may not be modified, suspended, or revoked, fines and 12 criminal charges may still be brought against offenders, as 13 described in footnote 23. 14 15 16 A permit is still required. Although the While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B. Regarding fees, since there is no evidence that Measure B’s 17 fees are revenue neutral, there is no reason to believe the 18 Department’s Measure B duties cannot be performed without fees–or 19 performed at least until the fees’ defect is cured, either by 20 enacting a new, constitutional ordinance or providing this Court 21 with evidence of revenue neutrality. 22 City of Oak Grove, No. CIV.A. 5:02CV-252-R, 2005 WL 2333636, at See Wal Juice Bar, Inc. v. 23 24 25 26 23 (...continued) unbridled discretion, and, given its undefined scope, allows the Department to effectively suspend or revoke a license. See G.K. Ltd., 436 F.3d 1082 (discussing unbridled discretion). 24 27 28 § 11.39.010 then reads: “An ‘adult film’ is defined as any film, video, multimedia or other representation of sexual intercourse in which performers actually engage in vaginal, or anal penetration by a penis.” 33 1 *5-6 (W.D. Ky. Sept. 22, 2005) (deciding that a license fee for 2 sexually-oriented businesses was unconstitutional, but stating 3 that the fee was severable in part because the ordinance remained 4 functional without the fee provision). 5 B remains operational. 6 For these reasons, Measure The volitional test asks “whether it can be said with 7 confidence that the electorate’s attention was sufficiently 8 focused upon the 9 separately considered and adopted them in the absence of the parts to be severed so that it would have Gerken v. Fair Political Practices Com., 6 10 invalid portions.” 11 Cal. 4th 707, 714-15 (1993). 12 volitional test when “it seems eminently reasonable to 13 suppose that those who favored the proposition would be happy 14 to achieve at least some substantial portion of their 15 purpose.” 16 purpose of preventing the spread of STIs and for the reasons 17 discussed above in the operational analysis, it seems that those 18 who “favored [Measure B] would be happy to achieve” what 19 remains of it.” 20 V. Conclusion 21 Id. at 715. A ballot initiative passes the Here, in light of Measure B’s stated Id. As set forth above, this Court GRANTS in part and DENIES in 22 part Interveners’ Motion to Dismiss, and GRANTS in part and DENIES 23 on part Plaintiffs’ Motion for a Preliminary Injunction. 24 In light of this Order, Plaintiffs’ motion for judgment on 25 the pleadings is vacated. 26 IT IS SO ORDERED. 27 Dated: (Docket No. 64.) August 16, 2013 DEAN D. PREGERSON United States District Judge 28 34
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