Federal appeals court overturns part of San Diego adult business licensing law

Tuesday, July 20, 1999

A San Diego ordinance regulating the licensing of nude dancing businesses violates the First Amendment, a federal appeals court has ruled.

The 9th U.S. Circuit Court of appeals found that the ordinance failed constitutional review because it did not allow nude dancing establishments to remain open while they appealed adverse administrative rulings in court.

4805 Convoy, Inc., which operates a nude dancing business in the city, sued San Diego after officials cited the club for violating two regulations: one mandating nude dancers to be licensed and one requiring them to perform at least 6 feet from patrons.

The club first appealed the license suspension administratively. After the City Council's public safety committee rejected its appeal, the club took its fight to state and federal court.

When a federal judge ruled in favor of the city in October 1996, the club appealed its case to the 9th Circuit.

Last week, the 9th Circuit reversed the lower court's decision, finding that part of the license law violated the First Amendment by not incorporating adequate procedural safeguards.

The U.S. Supreme Court in its 1990 decision FW/PBS, Inc. v. City of Dallas identified two major procedural safeguards that adult entertainment licensing ordinances must contain:

  • The decision to issue or deny a license must be made within a “specified and reasonable time period.”
  • “There must be the possibility of prompt judicial review in the event that the license is erroneously denied.”

In 4508 Convoy, Inc. v. City of San Diego, the 9th Circuit extended the requirement of procedural safeguards in license-denial cases to license-suspension cases.

The court found that the San Diego law satisfied the first procedural safeguard because it allowed adult businesses to stay open while they went through the administrative appeals process.

However, the court found San Diego's ordinance constitutionally flawed because it did not require prompt judicial review of an administrative licensing decision. The 10th Circuit cited its recent decision Baby Tam & Co., Inc. v. City of Las Vegas, which defined the U.S. Supreme Court's requirement of “prompt judicial review” as an “opportunity for a prompt hearing and a prompt decision by a judicial officer.”

“In pursuing this goal, we conclude that we must extend Baby Tam's requirement of an opportunity for a prompt hearing and decision by a judicial officer in license-denial cases to license suspensions or revocations as well,” the 9th Circuit wrote.

The 9th Circuit noted that the San Diego law contained no “express time limits or guarantee of a prompt hearing or decision.”

The court said that the city law would have been constitutional if it had mandated that city officials allow an adult business to remain open while the business appealed its license suspension.

The San Diego ordinance and corresponding state law provide that a judge “may stay the operation of an administrative order or decision” pending the outcome of the appeals process.

To the 9th Circuit, “may” was not good enough because it “gives rise to the possibility of the suppression of protected expression before judicial review of the case on the merits and is therefore contrary to the principles which underlie the procedural safeguards set forth in FW/PBS.”

The appeals court issued an injunction that prohibits city officials from suspending 4805 Convoy's license. The court stated that the injunction “will remain in place” as long as the city and state law “fail to provide for a prompt hearing and decision by a judicial officer.”

A. Dale Manicom, attorney for the club, said the decision was significant because it extended procedural safeguards to license-suspension cases.

The deputy city attorney who handled the case could not be reached for comment.