East Brooks Books, Inc. v. Shelby County, Tennessee ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0407p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
EAST BROOKS BOOKS, INC.,
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No. 08-5958
v.
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Defendants-Appellees, -
SHELBY COUNTY, TENN., et al.,
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ROBERT E. COOPER, JR., STATE OF -
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Intervenor Defendant-Appellee. -
TENNESSEE ATTORNEY GENERAL,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 08-02101—S. Thomas Anderson, District Judge.
Argued: April 20, 2009
Decided and Filed: November 25, 2009
Before: BOGGS, MOORE, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Frierson M. Graves, Jr., BAKER, DONELSON, BEARMAN, CALDWELL &
BERKOWITZ, Memphis, Tennessee, for Appellant. Robert B. Rolwing, ASSISTANT
COUNTY ATTORNEY, SHELBY COUNTY GOVERNMENT, Memphis, Tennessee,
Steven A. Hart, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellees. ON BRIEF: Michael F. Pleasants, Sr., PLEASANTS LAW
FIRM, Memphis, Tennessee, for Appellant. Robert B. Rolwing, ASSISTANT COUNTY
ATTORNEY, SHELBY COUNTY GOVERNMENT, Memphis, Tennessee, Steven A. Hart,
OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, Thomas
Roane Waring III, CITY ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellees.
BOGGS, J., delivered the opinion of the court, in which SUTTON, J., joined.
MOORE, J. (p. 15), delivered a separate opinion concurring only in the judgment.
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No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 2
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OPINION
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BOGGS, Circuit Judge. This is the second of two related actions challenging
Tennessee’s Adult-Oriented Establishment Registration Act of 1998, Tenn. Code Ann.
§ 7-51-1101 et seq., (the “Act” or “Tennessee Act”), a county-option law adopted by Shelby
County, Tenn. Plaintiff-Appellant East Brooks Books, Inc. (“Plaintiff”) operates two
bookstores that sell non-obscene sexually oriented material and restrict admission to adults
only. On February 14, 2008, Plaintiff filed suit in the United States District Court for the
Western District of Tennessee, naming Shelby County and the City of Memphis as
defendants, seeking preliminary and permanent injunctions, as well as a declaratory
judgment, on the grounds that the Act is unconstitutional on its face and as applied to
Plaintiff. The Attorney General of Tennessee was granted leave to intervene to defend the
constitutionality of the Act. Plaintiff’s motion for a preliminary injunction was denied.
Plaintiff appeals from the denial of its motion for a preliminary injunction. We now affirm
the district court’s denial of the preliminary injunction.
I
The Tennessee Act is described in detail in the related action challenging its
constitutionality, Entertainment Prod., Inc. v. Shelby County, Tenn., No. 08-5494. This
Plaintiff challenges the Tennessee Act on six grounds, some of which duplicate the substance
of the claims made by the plaintiffs in Entertainment Productions. Here we address only
those claims that were not resolved by our opinion in that case.
II
A
Plaintiff’s first argument is that the definition of “adult bookstore” violates the Equal
Protection Clause. The Tennessee Act regulates “adult-oriented establishments,” which
include “adult bookstore[s]”:
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 3
“Adult bookstore” means a business that [1] offers, as its principal or
predominate stock or trade, sexually oriented material, devices, or
paraphernalia, whether determined by the total number of sexually oriented
materials, devices or paraphernalia offered for sale or by the retail value of
such materials, devices or paraphernalia, specified sexual activities, or any
combination or form thereof, whether printed, filmed, recorded or live, and
[2] that restricts or purports to restrict admission to adults or to any class
of adults. The definition specifically includes items sexually oriented in
nature, regardless of how labeled or sold, such as adult novelties, risqué gifts
or marital aids;
Tenn. Code Ann. § 7-51-1102(1) (emphasis and numeration added). A bookstore will be
deemed “adult” under the Act only if, first, its “principal or predominate stock” consists of
sexually oriented or adult materials, and second, if it “restricts or purports to restrict” its
premises to adults. Plaintiff argues that the second criterion makes the Act under-inclusive,
in violation of the Equal Protection Clause. While a bookstore with a predominantly adult
stock that excludes minors from its premises is subject to the Act, an identical bookstore that
does not so restrict admission – by, for example, setting up a “small front room” containing
its insignificant stock of non-adult materials – is not subject to the Act. Plaintiff argues that
distinguishing between these two types of bookstores constitutes unequal treatment without
a rational basis. The rational basis for the distinction is absent, Plaintiff maintains, because
both types of bookstores are equally likely to produce the adverse secondary effects targeted
by the Act, and no rationale supports exempting from regulation adult bookstores that admit
minors. Appellant’s Br. at 21-22.
Equal protection of the laws guaranteed by the Fourteenth Amendment “must coexist
with the practical necessity that most legislation classifies for one purpose or another, with
resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, 631
(1996) (citations omitted). The Supreme Court has stated that courts will “uphold the
legislative classification ,” if “a law neither burdens a fundamental right nor targets a suspect
class, . . . so long as it bears a rational relation to some legitimate end.” Ibid.
In this case, no “suspect class” is targeted. Nor does Plaintiff argue that a
1
fundamental right associated with the freedom of expression is burdened. Plaintiff
1
Nor could it be successfully argued that a fundamental right is implicated in this context,
notwithstanding the fact that the Act obviously regulates expressive activity. This court has explained that:
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 4
concedes that this classification needs only a rational basis to survive constitutional
scrutiny. Appellant’s Br. at 21-22. “Under the rational basis standard, a classification
‘must be upheld against equal protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.’” Richland
Bookmart v. Nichols, 278 F.3d 570, 576 (6th Cir. 2002) (quoting Tuan Anh Nguyen v.
INS, 533 U.S. 53, 77 (2001)). “[A] law will be sustained if it can be said to advance a
legitimate government interest, even if the law seems unwise or works to the
disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer, 517
U.S. at 632.
As an initial matter, we note that the bookstores allegedly advantaged by an
exemption from the Act are probably few in number, if any such establishments exist at
all. Tennessee law prohibits the display of adult material “anywhere minors are lawfully
admitted.” Tenn. Code Ann. § 39-17-914; Davis-Kidd Booksellers v. McWherter, 866
S.W.2d 520 (Tenn. 1993). Any bookstore “principally or predominantly” devoted to
adult merchandise that wishes to avoid regulation as an “adult-oriented establishment”
and sets up a small general-merchandise section, to which minors are admitted, runs a
high risk of violating this law and incurring criminal penalties.2 It is unsurprising,
Although in some cases the First Amendment is violated because “the
underinclusiveness of a law – i.e., the failure of the government to regulate other, similar
activity – may give rise to a conclusion that the government has in fact made an
impermissible distinction on the basis of the content of the regulated speech,” such a
conclusion is not possible where the content of the differently regulated speech is
“virtually identical.”
Richland Bookmart v. Nichols, 278 F.3d 570, 575 (6th Cir. 2002) (quoting DLS v. City of Chattanooga,
107 F.3d 403, 412 n.7 (6th Cir. 1997)). Since Plaintiff’s claim is predicated on the assumption that the
regulated and the unregulated “speech” – i.e., adult merchandise – is “virtually identical,” there can be no
risk of government’s invidious discrimination against particular content of speech.
2
To be sure, a “high risk” is not a certainty: a store that sells some adult materials and admits
minors to its premises may avoid sanctions if the adult material is made inaccessible to minors as specified
§ 39-17-914(b) (e.g., by taking “[r]easonable steps . . . to prevent minors from perusing the material,” or
by locating the adult material in “an area restricted to adults”). While Defendants may be exaggerating
when they assert that such stores do not exist, it does seem difficult for a store that sells enough adult
materials to constitute a “principal or predominate” share to take the necessary “reasonable steps” to
prevent minors from seeing that material. A bookstore that seeks to avoid the Tennessee Act would find
it difficult to comply with § 39-17-914 – and in this light, such a bookstore is not truly advantaged by
comparison with a similar store that is subject to the Act but does not run a high risk of criminal penalties
under § 39-17-914.
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 5
therefore, that Plaintiff does not identify any actual bookstores in Shelby County that
meet the first, but not the second, criterion of an “adult bookstore” under the Act.
Even if the kinds of bookstores Plaintiff describes exist, or, as Plaintiff suggests,
will come into existence as operators “scramble to establish a small front room of some
minor amount of non-adult materials” into which minors are admitted, Appellant’s Br.
at 23, the “classification” does not lack a rational basis. “Th[e] [rational-basis] standard
permits a court to hypothesize interests that might support legislative distinctions,
whereas heightened scrutiny limits the realm of justification to demonstrable reality.”
Nguyen, 533 U.S. at 77. We can readily hypothesize the state’s interest in confining
regulation to bookstores that meet both definitional criteria. As a matter of practice,
sexually oriented businesses, including bookstores, commonly restrict admission to
adults. Moreover, only those businesses that cater to adults would restrict access in this
manner. Restricted access is thus a reliable indicator that the goods offered or displayed
on the premises are of an adult or explicit nature. A prominent display advertising an
establishment as an “adult store,” moreover, is a more objective indicator that the store
is of the kind the Act aims to regulate, than the mere share of its stock or trade comprised
of adult materials. Hence, it is not irrational for the legislature to use the access
restriction as a means of identifying those bookstores that are likely to produce adverse
secondary effects targeted by the Act.
Our court has adjudicated an analogous challenge to a restriction of business
hours, which applied to adult establishments offering live entertainment but excepted
those offering “nonlive entertainment.” Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd.
of Trs., 411 F.3d 777, 792 (6th Cir. 2005). We explained that so long as a regulation
“furthers a substantial government interest . . . and there is no evidence of an
impermissible motive on the part of” the legislature, such an exception “is not a cause
for concern under rational-basis review because a government may implement its
program of reform by gradually adopting regulations that only partially ameliorate a
perceived evil.” Ibid. (internal quotation marks and citations omitted); see also Richland
Bookmart, 278 F.3d at 577-78 (holding that exempting live cabarets from operating-hour
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 6
restrictions applicable to adult bookstores was rational because the legislature took a
legitimate and “plausible step-by-step approach” to combating secondary effects). The
same reasoning is pertinent to this case: even if Plaintiff is correct that the exempted
bookstores are as liable to produce pernicious secondary effects as the regulated
bookstores, Tennessee and Shelby County are permitted to implement a gradual and
incomplete solution “that only partially ameliorate[s]” such effects.
Thus, we hold that the district court did not err in determining that Plaintiff has
not shown a substantial likelihood of succeeding on the merits of the challenge to the
“adult bookstore” definition.
B
Plaintiff further claims that the prohibition on the sale, use, or consumption of
alcoholic beverages is overbroad and/or not narrowly tailored, and violates the Due
Process Clause. While alcohol is not explicitly prohibited in the “Prohibited activities”
section of the Act, its sale or use is a specified ground for a revocation, suspension or
annulment of a license:
(a) The board shall revoke, suspend or annul a license or permit for any
of the following reasons:
...
(5) Any intoxicating liquor or malt beverage is served or
consumed on the premises of the adult-oriented establishment,
when an operator, employee, entertainer, or escort knew, or
should have known, of the violation and authorized, approved, or,
in the exercise of due diligence, failed to take reasonable efforts
to prevent the violation;
Tenn. Code Ann. § 7-51-1109. Plaintiff conflates its claims that the provision is
overbroad and that it is not narrowly tailored as applied to adult bookstores. While
banning alcohol at adult cabarets that present live entertainment is justified by the
secondary effects resulting from the “explosive combination of nude dancing and alcohol
consumption,” Plaintiff argues, there is no evidence connecting alcohol consumption on
the premises of an adult bookstore to the targeted secondary effects. Appellant’s Br. at
51.
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 7
A challenge to this provision on the basis of overbreadth is without merit. “A
law is overbroad under the First Amendment if it ‘reaches a substantial number of
impermissible applications’ relative to the law’s legitimate sweep.” Deja Vu of
Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 387 (6th
Cir. 2001) (citations omitted). Overbroad laws warrant invalidation “to prevent the
chilling of future protected expression,” and thus, “any law imposing restrictions so
broad that it chills speech outside the purview of its legitimate regulatory purpose will
be struck down.” Ibid. A proscription on alcohol is not in itself a prohibition on any
protected expression. Thus, to be persuaded by the claim that prohibiting alcohol in
adult bookstores “reaches a substantial number of impermissible applications,” we need
to believe that the threat of license suspension for alcohol use will deter bookstore
owners from offering adult fare in their establishments, or that the prohibition on the
consumption of alcohol will keep out customers wishing to exercise their protected right
to peruse adult-oriented materials offered by the bookstores. Neither prospect is
probable, in view of the likely fact that the primary purpose of adult bookstores is to sell
adult materials, and the primary purpose of an average customer in such an
establishment is to purchase or view said materials. Plaintiff makes no effort to show
that extending the prohibition on alcohol to adult bookstores actually and substantially
chills protected expression.
While the traditional requirements of standing are relaxed in the context of a
facial challenge on overbreadth grounds, Plaintiff must show that it suffered an injury
that is “fairly traceable” to the allegedly unconstitutional statute for the purposes of its
claim that the alcohol prohibition is not narrowly tailored as applied to Plaintiff. Prime
Media, Inc. v. City of Brentwood, 485 F.3d 343, 348-49 (6th Cir. 2007) (citations
omitted). Since no provision of the Tennessee Act has been enforced against Plaintiff’s
bookstores at this time, no injury to Plaintiff is apparent. Plaintiff has not even
established that it has or intends to seek a liquor license, or given this court any other
reason to suppose that Plaintiff is likely to lose an adult-establishment license on account
of its employees’ or customers’ consumption of alcoholic beverages on the bookstores’
premises. Even assuming, arguendo, that standing requirements do not bar the claim
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 8
that the Act is not narrowly tailored, Plaintiff did not demonstrate a substantial
likelihood of success on the merits.
In the context of content-neutral time, place, or manner regulations, narrow
tailoring does not require that the chosen measures be “the least speech-restrictive means
of advancing the Government’s interests.” Turner Broad. Sys. v. FCC, 512 U.S. 622,
662 (1994). This requirement is satisfied if the regulation “promotes a substantial
government interest that would be achieved less effectively absent the regulation.” Ibid.
(quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)). It requires, “in other
words, that the means chosen do not burden substantially more speech than is necessary
to further the government’s legitimate interests.” Ibid. (internal quotation marks
omitted). Moreover, in selecting the means to advance the legitimate interest in
controlling adverse secondary effects of adult entertainment, governments are entitled
to rely on evidence “reasonably believed to be relevant to the problem.” 729, Inc. v.
Kenton County Fiscal Court, 515 F.3d 485, 491 (6th Cir. 2008) (citing Renton v.
Playtime Theatres, 475 U.S. 41, 51-52 (1986); City of L.A. v. Alameda Books, 535 U.S.
425, 438-39 (2002) (plurality); id. at 449 (Kennedy, J., concurring in the judgment)).
Both Tennessee and Shelby County relied on numerous reports, studies and
judicial decisions with regard to the deleterious secondary effects of adult-oriented
establishments. In the Ordinance that adopts the Act in the county, Shelby County notes
that the County reviewed, among other evidentiary materials, “a report regarding the
adverse health effects of activity commonly occurring in adult bookstores.” Ibid. In
view of this evidence, which Plaintiff does not call into doubt, Shelby County may
“reasonably believe” that the availability of alcohol on the premises of any adult-
oriented establishment – not just those that offer live or nude dancing – would magnify
the adverse effects. As this court held in Richland Bookmart, “[i]n finding that sexually
oriented businesses as a category are associated with numerous adverse secondary
effects, the County reasonably relied on a number of prior judicial decisions finding
sufficient evidence to support the connection between adverse effects and adult
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 9
entertainment when combined with alcohol consumption.” Richland Bookmart, Inc. v.
Knox County, Tenn., 555 F.3d 512, 532 (6th Cir. 2009) (emphasis added).
Moreover, this prohibition does not burden substantially more speech than
necessary to advance legitimate state interests, if it can be said to burden speech at all.
As the Seventh Circuit explained in upholding a ban on alcohol in adult cabarets:
The regulation has no impact whatsoever on the tavern’s ability to offer
nude or semi-nude dancing to its patrons; it seeks to regulate alcohol and
nude or semi-nude dancing without prohibiting either. The citizens . . .
may still buy a drink and watch nude or semi-nude dancing. They are not,
however, constitutionally entitled to do both at the same time and in the
same place. The deprivation of alcohol does not prevent the observer
from witnessing nude or semi-nude dancing, or the dancer from
conveying an erotic message.
Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 728 (7th Cir. 2003) (citation
omitted). Likewise, the deprivation of alcohol does not prevent a bookstore employee
from offering sexually explicit materials for sale, nor does it prevent customers from
enjoying all the merchandise such businesses have to offer.
Plaintiff claims that the prohibition is unconstitutional for yet another reason: it
violates the Due Process Clause because it allegedly imposes strict liability on the owner
for any violations by employees or customers. The Act states that a license or permit
will be revoked “when an operator, employee, entertainer, or escort knew, or should
have known, of the violation and authorized, approved, or, in the exercise of due
diligence, failed to take reasonable efforts to prevent the violation.” Plaintiff asserts that
an establishment’s license will be revoked if an employee “whose knowledge cannot be
imputed to the business itself” fails to take a reasonable effort to prevent alcohol use on
the premises. Appellant’s Br. at 52 (quoting Wal Juice Bar, Inc. v. City of Oak Grove,
Kentucky, No. 5:02CV-252-R, 2008 WL 1730293, at *10 (W.D. Ky. 2008)). While the
district court did not address this argument, its interpretive premise is without merit. As
Shelby County explains, “[a] violation by an employee imperils that employee’s permit,”
but “does not imperil the operator’s license, unless [the operator] ‘knew, or should have
known of the violation and authorized, approved, or, in the exercise of due diligence,
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 10
failed to take reasonable efforts to prevent the violation.’” Appellees’ Br. at 38-39
(citations omitted; emphasis in original). We agree, as this interpretation of the
challenged provision is also compelled by the general standard for revocation of
operator’s licenses and employees’ permits. The Act provides for a revocation or
suspension of an operator’s license on the basis of an employee’s actions only if an
operator “has a duty to supervise conduct on the premises,” and “knew, or should have
known, of the violation and authorized, approved, or, in the exercise of due diligence,
failed to take reasonable efforts to prevent the violation.” Tenn. Code Ann.
§ 7-51-1109(a)(2). Because the Act does not punish operators of adult establishments
on the basis of strict liability, we affirm the district court’s determination that no
substantial likelihood of success on the merits of this claim was demonstrated.
C
Finally, Plaintiff challenges the Act’s provision on “[p]enalties for violation of
part,” which states:
(a) (1) A violation of this part shall, for a first offense, be a Class B
misdemeanor, punishable by a fine only of five hundred dollars ($500),
and shall result in the suspension or revocation of any license.
(2) A second or subsequent violation of this part is a Class A
misdemeanor, and shall result in the suspension or revocation of
any license.
(b) Each violation of this part shall be considered a separate offense, and
any violation continuing more than one (1) hour of time shall be
considered a separate offense for each hour of violation.
Tenn. Code Ann. § 7-51-1119. Section 7-51-1109 specifies that an operator whose
license is revoked is disqualified from receiving an adult-oriented establishment license
for five years. Plaintiff argues that a punitive revocation of a license on the basis of past
violations of this Act constitutes an unconstitutional prior restraint on future protected
expression.
The district court declined to consider this claim on the merits because it
determined that Plaintiff, who has not applied for a license nor had a license revoked,
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 11
lacked standing to challenge the penalty provision. Plaintiff protests that it need not wait
for a license revocation to bring a facial challenge on overbreadth grounds. Appellant’s
Br. at 54-55. “[I]t is well established that one has standing to challenge a statute on the
ground that it delegates overly broad licensing discretion to an administrative office,
whether or not his conduct could be proscribed by a properly drawn statute, and whether
or not he applied for a license.” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889
(6th Cir. 2000) (quoting Freedman v. Maryland, 380 U.S. 51, 56 (1965)); see also Odle
v. Decatur County, 421 F.3d 386, 389 n.2 (6th Cir. 2005). Plaintiff does not exactly
articulate a challenge on the grounds of overly broad or unbridled discretion. However,
the essence of Plaintiff’s claim is that the allegedly unconstitutional applications of this
provision are substantial relative to legitimate applications because punitive revocation
suppresses future protected speech “unconnected to the negative secondary effects cited
as legislative justification,” Schultz v. City of Cumberland, 228 F.3d 831, 849 (7th Cir.
2000). Treating Plaintiff’s arguments charitably, we hold that Plaintiff does have
standing to bring this facial challenge to the Act on the basis of its penalty provision.
Constitutional invalidity of prior restraints may result from one or both of “two
evils . . . : (1) the risk of censorship associated with the vesting of unbridled discretion
in government officials; and (2) ‘the risk of indefinitely suppressing permissible speech’
when a licensing law fails to provide for the prompt issuance of a license.” Nightclubs,
Inc., 202 F.3d at 889 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 225-27 (1990)).
The Tennessee Act’s licensing scheme is a prior restraint on protected expression. Odle,
421 F.3d at 389; see also Belew, et al. v. Giles County Adult-Oriented Establishment
Board, et al., No. 1-01-0139 (M.D. Tenn. Sept. 30, 2005). Prior restraints are not
unconstitutional per se. Richland Bookmart, Inc., 555 F.3d at 533 (citing Odle, 421 F.3d
at 389). Where license issuance is based on explicit and objective criteria, a licensing
scheme passes constitutional muster when it “guarantee[s] applicants a prompt final
judicial decision on the merits of a license denial and preservation of the status quo
while an application or judicial review of a license denial is pending.” Odle, 421 F.3d
at 389 (citing Freedman, 380 U.S. at 58; FW/PBS, Inc., 493 U.S. at 229-30; City of
Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774, 779-80 (2004)). Logically, the same
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 12
procedural guarantees required for license denials are required for license revocations.
Furthermore, “[s]ystems of prior restraint . . . [must] also pass[] the appropriate level of
scrutiny.” Deja Vu of Nashville, Inc., 274 F.3d at 391(citing Freedman, 380 U.S. at
58-59).
In Odle, we held that the provisions regarding license denial of this very Act are
not unconstitutional because they comply with the procedural requirements of prompt
judicial review and maintenance of status quo. 421 F.3d at 390-91. Punitive revocation
of a license under § 7-51-1119 likewise complies with the two requirements. The
Tennessee Act provides for a prompt final judicial decision on the merits of a license
revocation: an entity whose license or permit is to be revoked or suspended is given 10
days to request a hearing before the adult-oriented establishment board (“board”) to
contest the revocation, § 7-51-1109(b)(2), which shall be held within 15 days of the
receipt of the request, and a final decision will be rendered by the board within 22 days
of the initial notice of revocation, § 7-51-1109 (b)(3). If the revocation or suspension
is affirmed, “the county attorney for such county shall institute suit for declaratory
judgment in a court of record in such county, within five (5) days of the date of any such
affirmation.” § 7-51-1109 (c)(1). Finally, “[t]he applicant shall be entitled to judicial
determination of the issues within two (2) days after joinder of issue, and a decision shall
be rendered by the court within two (2) days of the conclusion of the hearing.”
§ 7-51-1109 (c)(3).3 The Act also complies with the second requirement as it provides
for the maintenance of the status quo “pending the final outcome of judicial proceedings
to determine whether such license or permit has been properly revoked or suspended
under the law.” § 7-51-1109(b)(2).
3
We note that the Act provides adopting counties with a choice: a county has the option of
making subsection § 7-51-1109 (d) applicable in the county, rather than subsection (c). The salient
difference between the two sections resides in the identity of the party who initiates judicial review of the
administrative action and bears the burden of proof with respect to the revocation; however, the guarantee
that a judicial decision will be rendered within two days of the judicial determination on license denial or
revocation appears only in subsection (c). Neither party to this lawsuit indicates which section is
applicable in Shelby County. Because there is no allegation or affirmative representation that subsection
(d) was elected by Shelby County, and (c) appears to be the default option, we will assume that (c) is the
applicable standard and express no opinion with regard to subsection (d).
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 13
Plaintiff asserts that it is not challenging the constitutionality of the licensing
scheme on the grounds of inadequate procedural protections for license revocation. See
Appellant’s Rep. Br. at 19, 21-22. At the same time, Plaintiff does not appear to attack
the substantive grounds for revocation: Plaintiff does not argue, for example, that the
criteria for revocation are insufficiently objective and delegate unbridled authority to
officials, or that the criteria for revocation are too numerous to be narrowly tailored to
the state interest at stake. Instead, Plaintiff argues in general and opaque terms that the
Act is unconstitutional because it employs punitive revocation to control protected future
expression rather than to punish violators “in the ordinary sense.” Appellant’s Rep. Br.
at 22.
Insofar as we are able to discern a legal theory behind Plaintiff’s constitutional
attack on the penalty provision, it rests on a misinterpretation of the Tennessee Act.
Plaintiff appears to think that the procedural safeguards applicable to license revocations
generally, which are set forth in § 7-51-1109, do not apply to a punitive license
revocation under § 7-51-1119. Because § 7-51-1119 states that a violation “shall” be
a misdemeanor and “shall result in the suspension or revocation of any license,”
(emphasis added), Plaintiff seems to conclude that a revocation under this section is
permanent and not contestable. However, this is not a sustainable reading of the
Tennessee Act. Although § 7-51-1119 does not state that the punitive revocation of a
license is temporary or subject to the procedural protections required of prior-restraint
schemes, the temporal and procedural limitations are clearly spelled out in § 7-51-1109.
The latter section lists several grounds for license revocation, including violations of the
Act’s provisions – the consequences of which are addressed further in § 7-51-1119.
Section 7-51-1109 explicitly states that the procedural safeguards governing license
revocation contained therein apply “[n]otwithstanding anything in this part to the
contrary.” § 7-51-1109(b)(1). Thus, it is implausible to maintain that the procedures
governing revocations generally are not applicable to punitive revocations for violations
of the Act under § 7-51-1119.
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 14
We are unable to glean any alternative logic to support Plaintiff’s claim that the
Act is an unconstitutional prior restraint because it is not “punishment in the ordinary
sense.” Thus, we hold that the district court did not err in finding that Plaintiff did not
show a substantial likelihood of success on the merits of this claim.
D
Plaintiff raises other grounds for its facial attack on the Act, all of which are
waived and/or addressed by our opinion in the companion case. Plaintiff’s claim that
the definition of “adult cabaret,” § 7-51-1102(2), renders the Act unconstitutionally
overbroad was found to lack merit in Entertainment Productions. Plaintiff’s claims that
the definition of “specified sexual activities,” § 7-51-1102(27), and the prohibition on
“fondling,” § 7-51-1114(d)(1)(D), are overbroad and/or not narrowly tailored are
waived. While Plaintiff identifies these claims in its initial complaint, they are not
presented in its Memorandum in Support of Motion for a Preliminary Injunction, and
were therefore not addressed by the district court.4 Lastly, Plaintiff’s claim that the
prohibition on touching and the buffer-zone requirement are overbroad and/or not
narrowly tailored is also waived because it was not presented in its Memorandum in
Support of Motion for a Preliminary Injunction and was not addressed by the district
court. In any case, we rejected this claim on the merits in Entertainment Productions.
III
For the foregoing reasons, we affirm the district court’s denial of the preliminary
injunction.
4
Even if considered on the merits, however, these challenges would fail. Plaintiff misconceives
the role that the definition of “specified sexual activities” plays in the Act, treating the term, which is
employed in the definition of “adult entertainment,” as a prohibition. The claim that the prohibition on
fondling in § 7-51-1114(d)(1)(D) unconstitutionally burdens expression would also fail on the merits for
the same reasons that the challenge to the no-touching provisions did not succeed in Entertainment
Productions. The prohibition on “fondling genitals” is surely less burdensome and easier to justify than
the broader, more intrusive provisions challenged by the plaintiffs in Entertainment Productions.
No. 08-5958 East Brooks Books v. Shelby County, Tenn., et al. Page 15
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CONCURRING ONLY IN THE JUDGMENT
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KAREN NELSON MOORE, Circuit Judge, concurring only in the judgment.
I believe that the district court did not abuse its discretion by denying the plaintiffs’
motion for a preliminary injunction. I do not join the majority’s opinion, and I concur
solely in the judgment affirming the district court’s judgment that the plaintiffs have not
satisfied the requirements for a preliminary injunction of the challenged provisions.
It is important to emphasize that plaintiff waived any challenge at this time to
Tennessee Code Annotated § 7-51-1114(d)(1)(D)’s prohibition on self-touching by not
raising the issue in its preliminary-injunction motion or supporting memorandum. Thus,
any discussion regarding the merits of a hypothetical challenge to that provision is
premature.