Red Eyed Jacks Sports Bar Inc. v. San Diego, City of et al, No. 3:2014cv00823 - Document 21 (S.D. Cal. 2015)
Court Description: ORDER denying 18 Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. Signed by Judge M. James Lorenz on 7/7/2015. (sjt)
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Red Eyed Jacks Sports Bar Inc. v. San Diego, City of et al Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RED EYE JACKS SPORTS BAR INC. ) ) ) Plaintiffs, ) ) v. ) ) CITY OF SAN DIEGO; SHELLEY ) ZIMMERMAN, in her official capacity ) as Chief of Police, and DOES 1-50, ) ) Defendants. ) ) ) 12 dba CHEETAH’S NIGHTCLUB., 13 14 15 16 17 18 19 Case No. 14-cv-00823-L (RBB) ORDER DENYING MOTION TO DISMISS FIRST AMENDED COMPLAINT Before the Court is Defendants' motion to dismiss for failure to state a claim. The 20 motion has been fully briefed. Under Civil Local Rule 7.1.d.1, the Court determines this 21 motion on the papers submitted without oral argument. For the reasons below, the Court 22 DENIES Defendants' motion to dismiss. 23 I. BACKGROUND 24 The background of this case has been extensively recounted in the Court's 25 previous Order. (Order Granting in Part First MTD, ECF No. 10.) Plaintiff Red Eye 26 Jacks Sports Bar Inc. d.b.a. Cheetah's Nightclub ("Plaintiff"), operates a "nude 27 entertainment business," as defined by San Diego Municipal Code § 33.602, located in 28 San Diego. (First Am. Compl. ¶4 ECF No. 17.) On July 14, 2013 and March 6, 2014, 14cv00823 Dockets.Justia.com 1 the vice unit of San Diego Police Department conducted inspections of Cheetah's that 2 lasted four and two and a half hours respectively. (Id. ¶¶ 8, 10.) 3 Plaintiff brought suit against the City of San Diego ("San Diego") and Shelley 4 Zimmerman ("Zimmerman") in her official capacity as Chief of Police (collectively 5 "Defendants"). Plaintiff alleged that the inspections violated its constitutional rights 6 guaranteed by the First, Fourth, and Fourteenth Amendments. (Id. at 5-7.) Further, 7 Plaintiff alleged that as a result of the inspections they have suffered a loss of business. 8 (Id. ¶¶ 15-17.) 9 Defendants brought a motion to dismiss Plaintiff's Complaint. (First Motion to 10 Dismiss ECF No. 3.) The Court granted the motion in part, with leave to amend. (Order 11 Granting in Part First MTD at 10.) Plaintiff filed an amended complaint, and Defendants 12 now move to dismiss the amended complaint. (FAC, ECF No. 17; MTD, ECF No. 18.) 13 Defendants argue that Plaintiff's claims are barred by the statute of limitations. 14 (MTD at 6.) Defendants also contend that the statute at issue does not implicate the First 15 Amendment and the inspections did not have any adverse effects on Plaintiff's First 16 Amendment rights. (Id. at 7, 9.) Further, Defendants assert that the ratification claim 17 and challenges under the Fourth and Fourteenth Amendments are inadequately pleaded. 18 Plaintiff opposes the motion, maintaining that the statute of limitations has not run, their 19 First Amendment rights were infringed, and their other claims are adequately pleaded. 20 (Opp'n 2-4, 7, 9, 11, ECF No. 19.) 21 22 II. LEGAL STANDARD 23 Rule 12(b)(6) - Motion to Dismiss - Failure to State a Claim 24 The court must dismiss a cause of action for failure to state a claim upon which 25 relief can be granted. FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule 26 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 27 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and 28 construe them in light most favorable to the nonmoving party. Cedars-Sinai Med. Ctr. v. 14cv00823 2 1 Nat'l League of Postmasters of U.S., 497 F.3d 2 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be 3 true. 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not 5 "necessarily assume the truth of legal conclusions merely because they are cast in the 6 form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 7 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need 8 to accept any legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, -, 129 S. Ct. 9 1937, 1949 (2009) 10 "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 11 detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 12 'entitlement to relief' requires more than labels and conclusions, and a formulaic 13 recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 14 (internal citations omitted). Instead, the allegations in the complaint "must be enough to 15 raise a right to relief above the speculative level." Id. Thus, "[t]o survive a motion to 16 dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a 17 claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 18 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable 20 for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability 21 requirement,' but it asks for more than a sheer possibility that a defendant has acted 22 unlawfully." 23 Id. A complaint may be dismissed as a matter of law either for lack of a cognizable legal 24 theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter 25 Reynolds, Inc., 749 26 F.2d 530, 534 (9th Cir. 1984). 27 Generally, courts may not consider material outside the complaint when ruling on 28 a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 14cv00823 3 1 1555 n.19 2 (9th Cir. 1990). However, documents specifically identified in the complaint whose 3 authenticity is not questioned by parties may also be considered. Fecht v. Price Co., 70 4 F.3d 1078, 1080 n.1 5 (9th Cir. 1995) (superseded by statutes on other grounds). Moreover, the court may 6 consider the full text of those documents, even when the complaint quotes only selected 7 portions. Id. It may also consider material properly subject to judicial notice without 8 converting the motion into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 9 1377 (9th Cir. 1994). 10 11 III. DISCUSSION 12 A. 13 Defendant requests the Court take judicial notice of three documents: (1) excerpts Defendant's Request for Judicial Notice 14 from City Ordinance O-16822, (2) excerpts from City Ordinance O-18885, and (3) 15 various San Diego Municipal Code provisions regarding adult entertainment business 16 and nude entertainment businesses. (RJN 1-2, ECF No. 18-3). The Court may take 17 notice of facts that are "not subject to reasonable dispute in that [they are] . . . capable of 18 accurate and ready determination by resort to sources whose accuracy cannot be 19 reasonably questioned." FED. R. EVID. 201(b)(2). Because Plaintiff does not object to 20 these requests, and the documents are not subject to reasonable dispute, the Court 21 GRANTS IN PART Defendant's RJN with respect to these documents. 22 23 Defendant also requests the Court take judicial notice of the following facts: • "individuals in modern American society can change their hair color, 24 style and length; eye color (with contact lenses); weight; body 25 fat/muscle composition, and facial appearance (with makeup)”; 26 • names or aliases;" and 27 28 "individuals attempting to conceal their identities sometimes use false • "a nude entertainer cannot change or conceal large ink tattoos on her 14cv00823 4 1 skin as easily as she can change her hair color, style and length, eye 2 color; weight; body fat/muscle composition; and facial appearance." 3 (RJN 2.) Plaintiff opposes these factual requests because "the alleged 'facts' are 4 irrelevant at this stage of the proceedings because they go to the merits of Plaintiff's 5 claims." (Opp'n 1 n. 1.) However, Plaintiff does not dispute the accuracy of these 6 "facts." It is generally known that people can change their appearance and that 7 individuals attempting to conceal their identities sometimes use false names or aliases, so 8 the Court GRANTS IN PART Defendant’s RJN with respect to these facts. However, 9 the Court DENIES IN PARTthe RJN with respect to the alleged fact that it is not as 10 easy to conceal a tattoo as it is to otherwise alter someone's appearance, as this is not 11 generally known, nor does Defendant provide any explanation as to why this is true. 12 13 B. Plaintiff's Claims Are Not Time Barred 14 Defendants first contend that Plaintiff's facial challenges under the First, Fourth, 15 and Fourteenth Amendments are time barred.1 (MTD 6, 13.) Plaintiff disagrees, 16 suggesting that this issue has already been decided in a previous order and Defendants' 17 cited authority is inappropriate. (Opp'n 2-3.) The Court agrees with Plaintiff. 18 The Court has previously ruled that the facial challenge on First Amendment 19 grounds is not barred by the statute of limitations. (Order Granting in Part First MTD 20 8-9.) The Court finds the same logic applies to Plaintiff's facial challenges under the 21 Fourth and Fourteenth Amendments in claims one and four. 22 As explained in the Court's previous order, the Ninth Circuit doubts that a First 23 Amendment facial challenge can ever be barred by a statute of limitations. Maldonado v. 24 Harris, 370 F.3d 945, 955 (9th Cir. 2004). The Northern District of California has held 25 26 27 28 1 Though Defendants’ motion states that the facial and as-applied challenges under the First and Fourteenth Amendments in Plaintiff’s first claim are time barred, the motion only discusses the facial challenges. In regards to Plaintiff’s Fourth and Fourteenth amendment challenges in the fourth claim, Defendants’ motion only makes a statute of limitations argument about the facial challenge. All three facial challenges are considered together. 14cv00823 5 1 that infringement of First Amendment rights results in ongoing harm that precludes a 2 statute of limitations from taking effect. Napa Valley Publishing Co. v. City of 3 Calistoga, 225 F. Supp. 2d 1176, 1184 (N.D. Cal. 2002). Here, like in Maldonado and 4 Napa, Plaintiff alleges violations of their Fourth and Fourteenth Amendment rights, 5 resulting in a continuous harm to Plaintiffs as long as they are subject to the statute. 6 Therefore, the logic which was applied to the First Amendment facial challenge in the 7 Court's earlier order extends to the Fourth and Fourteenth Amendment facial challenges 8 here. 9 Further, the cases on which Defendants' rely to assert that a statute of limitations 10 begins running at the enactment of the ordinance involve the Takings Clause of the Fifth 11 Amendment rather than any of the amendments at issue here. Levald v. City of Palm 12 Desert, 998 F.2d 680 (9th Cir. 1993); Colony Cove Properties, LLC v. City of Carson, 13 640 F.3d 948 (9th Cir. 2011). In Levald, the Ninth Circuit drew a clear distinction 14 between takings claims and other kinds of harm and held that unlike other constitutional 15 violations, takings are a discrete single harm. Levald, 998 F.2d at 688. Therefore, 16 precedent based on Takings Clause jurisprudence does not apply here. 17 For the foregoing reasons, the Court finds that the facial challenges under the 18 First, Fourth, and Fourteenth Amendments are not time barred. Therefore Defendant's 19 motion on this basis is DENIED. 20 21 22 23 C. Plaintiff's First Amended Complaint is Sufficient to Allege that SDMC § 33.0103 May Have First Amendment Implications Defendants next argue that Plaintiff has not made allegations sufficient to 24 implicate the First Amendment for either the facial or as-applied challenge to SDMC § 25 33.0103. (Motion to Dismiss 7, 9.) Plaintiff responds that they have made valid 26 challenges both to the facial unconstitutionality of SDMC § 33.0103 and to the 27 unconstitutional nature of the specific inspections carried out by the San Diego Police. 28 (Opp'n 6.) The Court agrees with Plaintiff. 14cv00823 6 1 The threshold question in a First Amendment free speech case is whether the 2 challenged law is content-based, that is, whether the law regulates speech based on the 3 ideas or messages it expresses. "Content-based regulations are presumptively invalid." 4 R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). 5 On the other hand, government is given much more leeway when its content-neutral 6 regulations happen to limit some speech. See United States v. Wilson, 154 F.3d 658, 663 7 (7th Cir.1998) ("If a statute is content-based, it must survive strict scrutiny to be 8 constitutional. If a statute is content-neutral, it is subject only to intermediate scrutiny."). 9 Therefore, government may impose reasonable time, place, and manner restrictions if 10 they are "justified without reference to the content of the regulated speech." Ward v. 11 Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) 12 (internal quotation marks omitted). 13 The Supreme Court applies a specific analysis to the category of speech at issue 14 here: sexually explicit, non-obscene materials. Because this speech is not obscene, 15 government may not simply proscribe it. See Schad v. Borough of Mt. Ephraim, 452 16 U.S. 61, 66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) ("[A]n entertainment program [may 17 not] be prohibited solely because it displays the nude human figure."). But because these 18 materials border on the obscene, they are entitled to less First Amendment protection 19 than non-sexually-explicit materials. See Young v. American Mini Theatres, Inc., 427 20 U.S. 50, 70-71 (1976) (plurality) ("Even though the First Amendment protects 21 communication in this area from total suppression, we hold that the State may 22 legitimately use the content of these materials as the basis for placing them in a different 23 classification from other motion pictures."). So in City of Renton v. Playtime Theatres, 24 Inc., 475 U.S. 41, 49 (1986), the Court held that "at least with respect to businesses that 25 purvey sexually explicit materials, zoning ordinances designed to combat the undesirable 26 secondary effects of such businesses are to be reviewed under the standards applicable to 27 'content-neutral' time, place, and manner regulations." (Footnote omitted.) 28 In Renton, the Supreme Court considered a constitutional challenge to a zoning 14cv00823 7 1 ordinance prohibiting adult movie theaters from locating within 1,000 feet of any 2 residential zone. 475 U.S. at 43. Citing its decision in Young v. American Mini 3 Theatres, Inc., 427 U.S. 50 (1976), the Court established a now familiar three-part 4 analytical framework for evaluating the constitutionality of sexually-oriented business 5 regulations, or what Professor Tribe has described rather aptly as "erogenous zoning 6 laws." Laurence H. Tribe, American Constitutional Law 934 (2d ed. 1988). First, the 7 Court asked whether the ordinance was a complete ban on adult theaters. Id. at 46. 8 Because the ordinance was not a total ban, it was properly analyzed as a time, place and 9 manner regulation. Id. Second, the Court considered whether the ordinance was content 10 neutral or content based. The Court held that, because the ordinance at issue was aimed 11 not at the content of the films shown at adult theaters, but rather at the secondary effects 12 such theaters have on the surrounding community, it was properly classified as content 13 neutral. Id. at 47. Third, given this finding, the final step is to ask whether the ordinance 14 is designed to serve a substantial government interest and that reasonable alternative 15 avenues of communication remain available. Id. at 50, 106 S.Ct. 925. The Supreme 16 Court recently reaffirmed the Renton framework in City of Los Angeles v. Alameda 17 Books, Inc., 535 U.S. 425 (2002). 18 Neither party has applied the proper Renton standard in their papers. This is 19 understandable because, as the Sixth and Seventh Circuit have pointed out, there is 20 confusion with respect to the Supreme Courts' First Amendment analysis of regulations 21 of sexually explicit material and adult-oriented establishments. See Richland Bookmart, 22 Inc. v. Nichols, 137 F.3d 435, 440 (6th Cir.1998); DiMa Corp. v. Town of Hallie, 185 23 F.3d 823, 827-28 (7th Cir. 1999). The problem stems from the fact that Court in Renton 24 treats these types of regulations as content-neutral regulations for some purposes, even 25 though they are in fact content-based. Thus when courts and litigants fall into the 26 shorthand of simply referring to regulations like the one here as "content-neutral," they 27 can find themselves arguing about irrelevancies. DiMa Corp., 185 F.3d at 828. Here, 28 the ordinance obviously singles out adult-oriented establishments for different treatment 14cv00823 8 1 based on the content of the materials they sell or display. And under Renton, the 2 ordinance is constitutional so long as it satisfies the requirements of a reasonable time, 3 place, and manner restriction. See id.; see Center For Fair Public Policy v. Maricopa 4 County, Arizona, 336 F.3d 1153, 1159-60 (9th Cir. 2003). 5 Although neither party expressly addresses the proper standard for which to 6 analyze Plaintiff's claim, it appears clear that only the third element of the Renton test is 7 in question: whether the ordinance"is designed to serve a substantial government interest 8 and that reasonable alternative avenues of communication remain available." Here, 9 Plaintiff has alleged that the vagueness of the ordinance gives "the Chief of Police 10 [complete discretion] to determine the scope and method of an inspection, allowing 11 inspections that are in fact warrantless raids[.]" Further, Plaintiff alleges that the 12 unconstitutional inspections executed pursuant to the ordinance caused Plaintiff to cease 13 business operations which included activity protected by the First Amendment. (Id. ¶¶ 14 20, 26.) Essentially, Plaintiff suggests that the language of the ordinance permits no 15 alternative avenues of communication, which would establish a First Amendment 16 violation if proven. 17 Therefore, Defendants' motion to dismiss on these grounds is DENIED. 18 19 D. Plaintiff has Sufficiently Pleaded a Ratification Claim 20 Defendants move to dismiss Plaintiff's ratification claim on the grounds that 21 Plaintiff has alleged insufficient facts to show that Defendant Zimmerman ratified the 22 actions of the officers who carried out the inspections. (MTD 13.) Plaintiff maintains 23 their ratification claim is sufficient because they allege that Zimmerman either personally 24 made the decision to conduct the raids in the manner they were conducted or delegated 25 the authority to do so. (Opp'n 10.) The Court agrees with Plaintiff. 26 A Court may properly take judicial notice of facts outside the pleading. Mack v. 27 South Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir. 1986). Accordingly, the 28 Court takes notice of the fact that Defendant Zimmerman became Chief of Police on 14cv00823 9 1 March 4, 2014. About the Chief, CITY OF SAN DIEGO, 2 http://www.sandiego.gov/police/about/chiefofpolice.shtml (last visited July 7, 2015). 3 However, Plaintiff's First Amended Complaint names Shelley Zimmerman in her official 4 capacity. (First Am. Compl. 1.) Therefore, it is irrelevant when Defendant Zimmerman 5 assumed office because the suit against Zimmerman represents claims against the Chief 6 of Police of San Diego as an entity, not Defendant Zimmerman as an individual. Will v. 7 Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). 8 A plaintiff can demonstrate liability of an entity "by showing that an official with 9 final policymaking authority either delegated the authority to, or ratified the decision of, 10 a subordinate." Ulrich v. City and County of San Francisco, 308 F.3d 968, 985 (9th Cir. 11 2002). The ordinance at issue here provides that "The Chief of Police shall make, or 12 cause to be made, regular inspections of all police-regulated businesses." SDMC § 13 33.0103(a). Since the ordinance gives the Chief of Police final authority to carry out 14 inspections of establishments such as those run by Plaintiff, the inspections at issue were 15 necessarily undertaken at the direction of either the Chief of Police or some subordinate 16 to whom the Chief of Police had delegated authority. Thus, although Plaintiff has not 17 made extensive allegations in regards to the ratification claim, Plaintiff has stated a valid 18 claim. 19 For the foregoing reasons, Defendants' motion to dismiss on these grounds is 20 DENIED. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 14cv00823 10 1 E. Plaintiff's Challenges Under the Fourth and Fourteenth Amendments 2 Defendants do not appear to challenge the sufficiency of Plaintiff's as-applied 3 challenge to this claim. Defendants contend that Plaintiff's Fourth and Fourteenth 4 Amendment facial challenges are improper.2 (MTD 13-14.) Defendants argument is 5 based on their assertion that a constitutional facial challenge may only succeed "'where 6 no set of circumstances exists under which [SDMC Section 33.0103] would be valid.'" 7 (MTD 14) (citing United States v. Salerno, 481 U.S. 739, 745 (1987). Specifically, 8 Defendants argue that Plaintiff's Fourth Amendment facial challenge fails because the 9 statute "does not expressly mention searches of private business records or non-public 10 areas" and the City "can inspect Plaintiff's business without inspecting private business 11 records or searching non-public areas of Plaintiff's business, [the statute] can be 12 administered in a valid manner." (MTD 14.) Plaintiffs oppose on the grounds that they 13 have asserted sufficient facts to sustain an as-applied challenge. 14 The Ninth Circuit has cast doubt on whether the Salerno "no set of circumstances" 15 standard of review for facial challenges "is to be generally applied to facial challenges" 16 or whether it is dicta. Sierra Club v. Bosworth, 510 F.3d 1016, 1023 (9th Cir. 2007).3 In 17 18 2 21 3 In the heading of section “E” of the Motion to Dismiss, Defendants assert that Plaintiff has not alleged sufficient facts to support a facial challenge under the Fourth and Fourteenth 19 Amendments. However, in the body of the section, Defendants only make arguments based on the merit of the argument, not the allegations of the First Amended Complaint. Defendants’ 20 Reply is silent as to the factual allegations of the claim. 22 23 24 25 26 27 28 See, e.g., City of Chicago v. Morales, 527 U.S. 41, 55 n. 22 (1999) (plurality opinion) (“To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court.”); Washington v. Glucksberg, 521 U.S. 702, 740 (1997) (Stevens, J., concurring) (commenting on Court's failure to apply Salerno standard even though challenge to assisted suicide ban was facial challenge, and stating that “I do not believe the Court has ever actually applied such a strict standard, even in Salerno itself” (footnote omitted)); Janklow v. Planned Parenthood, Sioux Falls Clinic,517 U.S. 1174, 1175 (1996) (Stevens, J., concurring in denial of cert.) (stating that Salerno “no set of circumstances” standard “does not accurately characterize the standard for deciding facial challenges,” and that this “rigid and unwise dictum has been properly ignored in subsequent cases even outside the abortion context”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992) (statute facially invalid as “substantial obstacle” to exercise of right in “large fraction” of cases); id. at 972-73, (Rehnquist, C.J., concurring in judgment in part and dissenting in part) (arguing that “no set of circumstances” dictum should have led to different result); Kraft Gen. Foods, Inc. v. Iowa Dep't of Revenue & Fin., 505 U.S. 14cv00823 11 1 fact, the Supreme Court sustained a Fourth Amendment facial challenge to a state statute 2 that required candidates for elective office to submit to drug testing, holding that the 3 state's interest in drug free officials was not a special need that rendered the intrusion 4 reasonable. Chandler v. Miller, 520 U.S. 305, 323 (1997). If the Salerno "no set of 5 circumstances" standard had been applied, the statute would have survived the challenge 6 because there were likely some circumstances under which the statute would have been 7 constitutional, such as when the statute was applied to candidates with a known drug 8 problem. See id. Nonetheless, the Supreme Court did not even mention the Salerno test 9 in the opinion. 10 Here, Defendants fail to acknowledge the shaky ground on which the Salerno rule 11 sits. Nor do Defendants present any argument as to why this rule should apply here. At 12 this point in the proceedings, and in light of the legal landscape surrounding Salerno, the 13 Court refuses to apply the "no set of circumstances" rule. In light of this, neither party 14 provides a framework under which the Court can evaluate the pending motion with 15 respect to Plaintiff's Fourth Amendment facial challenge.4 Nonetheless, it appears that 16 Plaintiff's facial challenge is sufficiently pleaded. 17 Searches of private property conducted "without prior approval by judge or 18 magistrate, are per se unreasonable under the Fourth Amendment[.]" Katz v. United 19 States, 389 U.S. 347, 357 (1967). Plaintiff alleges that SDMC § 33.0103 allows searches 20 of private business records and non-public areas of its premises without a warrant. (First 21 Am. Compl. 32.) Plaintiffs also allege that during the inspections at issue, San Diego 22 71, 82-83 (1992) (Rehnquist, C.J., dissenting) (arguing that tax statute was facially valid because 23 it would be constitutional under certain facts); Bowen v. Kendrick, 487 U.S. 589, 602 (1988) (statute facially invalid under Establishment Clause only if, inter alia, law's “primary 24 effect” is advancement of religion, or if it requires “excessive entanglement” between church and state); id. at 627 n. 1 (Blackmun, J., dissenting) (pointing out and agreeing with majority's 25 rejection of “no set of circumstances” dictum); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L.Rev. 235, 236, 238 (1994). 26 27 4 The Court notes that the proper standard to evaluate this claim may be found in New York v. Burger, 482 U.S. 691 (1987), wherein the Supreme Court explains the protections of the 28 Fourth Amendment with respect to “closely regulated” industries. 14cv00823 12 1 Police officers entered "into the private women's dressing rooms and into the private 2 office of the manager." Id. at 9. Defendant has not highlighted how these allegations 3 fail to establish either an as-applied or facial challenge. Consequently, the Court deems 4 Plaintiff's claims under the Fourth and Fourteenth Amendment to be valid. 5 Therefore, Defendants' motion to dismiss on these grounds is DENIED. 6 7 IV. CONCLUSION & ORDER 8 In light of the foregoing, the Court DENIES Defendants' motion to dismiss 9 Plaintiff’s First Amended Complaint. 10 IT IS SO ORDERED. 11 DATED: July 7, 2015 12 13 M. James Lorenz United States District Court Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14cv00823 13
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