729, INC. v. Kenton County Fiscal Court

1231(a)(6) III. § that author- Conclusion find Court should period.”5 for “a reasonable izes detention dispute The Government does not that However, light unqualified hold- beyond Tran was detained well the six- and Clark that Zadvydas of both ings presumptive period month detention estab- 1231(a)(6) continued de- permit § does not Zadvydas, lished in nor does the Govern- reasonably where removal is not tention dispute ment that removal Tran’s is not foreseeable, this cannot establish an Court Thus, reasonably foreseeable. based on none French’s exception where exists. See Supreme categorical interpre- Court’s How.) (21 Spencer, v. Lessee 1231(a)(6), § tation of we conclude (1858) (citations omitted) L.Ed. 97 holding district court was correct in (“[W]here Legislature plain makes a this statute does not authorize Tran’s con- making any exception, provision, without Accordingly, detention. we AF- tinued none.”); see the courts can make also FIRM. Clark, 543 U.S. at

(“[F]or this Court to sanction indefinite Zadvydas in the face of would

detention beyond jurisprudence, within

establish our remedy, Congress to power give principle judges can

dangerous meaning in statutory text different dif- 729, INC., Restaurants, Inc., Foxx cases.”). ferent Lounge, Inc., Patsy Hiatt, Tina Venus Sturgeon, Blankenship, Plain Wanda to the sympathetic this Court is While tiffs-Appellants, safety, we public concern for Government’s power to authorize Tran’s con- are without Foster, Inc., Plaintiff, 1231(a)(6). § under We tinued detention in a circum- note however similar Foran, Liberty’s Lounge, Kim Show safety was also of public stance where Plaintiffs, Inc., Intervening concern, prompt ac- great Congress took particular, address the issue. In tion to COURT, KENTON COUNTY FISCAL security, Congress national en-

the field of Defendant-Appellee. Act which authorizes de- acted the Patriot beyond period any the removal tention No. 06-6390. foreseeable for alien whose removal is not Appeals, United States Court of if upof to six periods additional months Sixth Circuit. security presents alien a national Thus, § 1226a. threat.6 8 U.S.C. Argued: July 2007. properly are the concerns Government’s and Filed: Feb. Decided importantly Con- Congress, directed to but authority that it has the gress has shown willingness to address these concerns. requirement statutory peri- on the that certain defines "a reasonable rests

5. The Government met; long an alien meets the three od” to be as as criteria must be criteria have been these 8 C.F.R. requirement enumerated every 8 U.S.C. reviewed six months. See 241.14(f). supra, § n. 1. See § 1226a. Act, Attorney Gener- 6. Under the Patriot authority aliens al’s to detain non-removable Sirkin, Kinsley,

ARGUED: Jennifer M. Schwartz, Cincinnati, Ohio, & for Piñales Nordloh, Appellants. Christopher S. Office, Covington, Kentucky, Nordloh Law Appellee. for ON BRIEF: Jennifer M. Sirkin, Sirkin, Kinsley, H. Louis & Piñales Schwartz, Cincinnati, Ohio, Appellants. for Nordloh, Christopher S. Nordloh Law Of- fice, Covington, Kentucky, Garry L. Edmondson, Stacy Hege, M. Kenton Coun- Office, ty Attorney’s Covington, Kentucky, Appellee. BOGGS, Judge; Before: Chief ROGERS, Judges. CLAY and Circuit BOGGS, J., opinion C. delivered the court, ROGERS, J., joined. CLAY, 505-11), (pp. J. delivered a separate opinion dissenting part concurring part.

OPINION BOGGS, Judge. Chief County’s This case stems from Kenton licensing enactment of a ordinance therein, working sexually orient- obtain licenses from the regulates comprehensively County’s jurisdic- County. within ed businesses The Ordinance has been amend- their group A such businesses tion. began. ed several times since case County brought against suit employees Ordinance, The current version of the No. § and K.R.S. under U.S.C. 451.12, subject appeal. is the of this 418.040, constitutionality challenging § required ap- must Businesses submit the district the Ordinance. Before $3,000, in plication, along with a fee of court, raised more than ten plaintiffs order to a license. secure Should busi- sides constitutional claims. Both separate denied, ness’s license be which the summary judgment, moved for $1,500 funds of that fee. The applicable County. granted court district $155, managers fee for entertainers and ap- raise four issues none of which is refundable. The Ordi- First, the Ordinance they claim that peal. nance also creates a structure for adminis- by barring Amendment violates the First trative of license appeal denials and allows entering areas of an es- entertainers from review of such denials “in a by customers within occupied tablishment manner provided law.” performing the entertainers’ one hour of Second, they claim stage. semi-nude segments govern Two of the Ordinance rights their the Ordinance violates First, responsibilities. a licensee’s Sec- I, of Article under the Contracts Clause together, impose tions 14 and taken Third, they § 10 of the Constitution. licensees, affirmative duties on breaches of judicial review claim that the Ordinance’s punishable County’s which are within the Amend- satisfy do not the First provisions framework.1 a licen- administrative When require- prompt-judicial-review ment’s duty, County fails to fulfill a can see Fourth, they claim that the Ordi- ments. violations, levy penalty. a For some excessive, license fees are content- nance’s penalty point-assessment. is a Whereas First Amend- taxes that violate the based managerial an establishment or licensee Following a recitation of the ment. brief twenty-four points can accrue over two- case, address each background of this we subject license is year period before its turn, in plaintiffs’ challenges relat- revocation, per- an entertainer licensee is chal- respective relevant to each ing details only points within the eighteen mitted Ultimately, we lenge appropriate. when violations, period. same More serious respect district court with to the affirm the though, may suspension result or revo- challenges three and we vacate first point- penalty cation as a instead of with re- proceedings for further remand Second, Section defines assessment. spect challenge. to the fourth of conduct as “violations of certain courses I misdemeanor of- chapter” that constitute Kentucky fenses under law. There is August County adopted On criminally overlap pun- conduct between 451.7, regulated No. “sex- Ordinance under Section 22 and conduct ishable within the ually oriented businesses” sanction under businesses, bring could administrative required that such 22 makes Sections 14 and 15. Section along managers and entertainers a violation applies whenever "there has been 16 and 17 of the Ordinance create 1. Sections The former any provision” the administrative framework. of the Ordinance. governs point-assessments, whereas the latter current, non-suspend- premises from the or entertainers [sic] operating without premises’ use of the common restroom. offense. a misdemeanor ed license It intended to control illicit sexual pros- contact and reduce the incidents of II occurring titution the establishments. grant a district court’s We review Regulating delay a reasonable between de novo. Trustees summary judgment appear the times the entertainers semi- Health Care Fund Mich. Laborers’ commingling nude and their with cus- Gibbons, F.3d Cir. narrowly tomers is a tailored further- 2000). af below The decision Penalty ance of this [sic] interest. affidavits, if pleadings, firmed suspension violation: license after be- “that there is no submissions show other (2) ing cited for two such violations. any material fact and genuine issue as to (emphasis original). JA 364 Because is entitled to a moving party anyone being from Ordinance forbids matter of law.” Fed. judgment as a anywhere stage, semi-nude but on 56(c). all We must draw reason R.Civ.P. provision requires stay that an entertainer light in the most favorable able inferences away being at least five feet from areas to the non-movant. See Matsushita Elec. occupied by for at one customers least Co., Corp., Radio Indus. Ltd. v. Zenith performs hour after entertainer semi- 574, 587-88, establishments, stage. Managers, nude on (1986). L.Ed.2d 538 and entertainers each have an affirmative duty to the enforcement ensure of this III provision. attack the Ordi first Although the contend commingling provision, which is nance’s subjected provision this should be to affirmative-duty provi found within the scrutiny, strict it is well-settled laws 14 Because sions of and 15. the Sections targeting “secondary the effects” of adult- provision target prostitu was intended subject entertainment establishments are tion, likely reducing have the effect of will scrutiny. to intermediate In Renton v. substantially prostitution, and leaves intact Theatres, Inc., Playtime Supreme reject protected speech, the amount of we Court held that an designed ordinance challenge. concentrate such establishments one as provision at issue'reads follows: city subject area of a would be to interme [Ejntertainers scrutiny maintain a mini- diate because it was a content- [must] (5) time, mum feet from areas place, distance of five neutral and manner restric 41, 46-47, premises being 925, tion. 475 establishment’s U.S. 106 S.Ct. 89 customers, (1986). occupied a for minimum L.Ed.2d 29 Although five mem (1) of one hour after the entertainer bers of the premise Court abandoned the appears semi-nude on the establish- that such restrictions are content-neutral premises. regulation years City ment’s This is not sixteen later in Angeles Los Books,2 prohibit ingress egress intended to v. Alameda the Court continued to 455, judg- Kennedy 2. Justice concurred in the same assessment. Id. at 122 S.Ct. 1728 ment, ("Because writing regulation applies ordinances are "[t]hese content-based said, expression by very content based and we should call them so.” of what it reason Boolcs, 448, high expressive Alameda at 122 S.Ct. carries a risk that limits are dissenting justices imposed suppressing 1728. The four had the for the sake mes- (Ken- 449, 122 intact.” Id. at S.Ct. 1728 scrutiny target- to laws intermediate apply J., nedy, concurring judgment); id. “secondary effects.” 535 ing (2002) (“As discussed, 152 L.Ed.2d 122 S.Ct. 1728 scrutiny to ordi- (applying intermediate necessary applying rationale for interme- rather than concentrat- dispersing, nance scrutiny zoning is the promise diate businesses). In each of those ing, adult ordinances like this one reduce the cases, ruling its earlier applied the Court secondary effects without sub- costs O’Brien, which set United States stantially reducing speech.”). Although scrutiny the standard as intermediate did not dis- plurality the Alameda Books regulates pursuant government when the Ken- requirement, cuss the third Justice con- speech’s unrelated to to an interest nedy expressly said that consideration 1673, 20 tent. See 391 U.S. required this issue was for his concur- (1968). L.Ed.2d 672 judgment. rence in the Justice Kenne- See, dy’s opinion point. binds us on this that prostitution There is no doubt Bar, e.g., Village Ben’s Inc. v. Somer- “secondary within the effect” constitutes Cir.2003). (7th set, 316 F.3d case law. See meaning pertinent Books, 430, 122 U.S. at Alameda test, the plaintiffs’ Under the above County sought S.Ct. 1728. Because challenge commingling provision to the scruti target prostitution, intermediate First, no that the must fail. there is doubt here. In order to survive such ny applies sought to County target prostitution. three re scrutiny, regulation must meet investigate the County hired consultants to First, government must quirements. harms presence prostitution and other purpose suppress have had the actual in the adult establishments within “secondary effects” when it enacted ing Ordinance, County. enacting In River Amusement the ordinance. White first- County relied on the consultants’ Pub, Inc., Hartford, v. Town 481 F.3d observations, on evidence from other hand (2d Cir.2007) (collecting 171-72 reports of jurisdictions, and on first-hand cases). Arbor, Christy v. Ann See also issue, provision In the police officers. Cir.1987). Second, 824 F.2d provision noted that “is entity must have had a reasonable control illicit sexual contact intended to concluding its evidentiary basis prostitution and reduce the incidents of have the desired effect. regulation would The rec- in the establishments.” occurring extraordinarily ev Although high, clearly that quite ord demonstrates entity identiary requires that the burden prostitution. County sought target it re upon show that the evidence County adopted regulation a also “reasonably believed to be rele lied was “reasonably to be relevant” believed entity problem” to the vant Five women from solving problem. Renton, 475 sought to address. U.S. Kentucky, were Covington, club in Books, one 925; 51-52, Alameda a as the result of charged prostitution (plurali S.Ct. 1728 club, the undercover raid. At that police (Kennedy, ty); Id. at 122 S.Ct. 1728 they conducted the raid said Third, officers who J., judgment). concurring 7 minutes “solicited for sex ‘within quantity “the were the ordinance must leave ” clubs, the In some substantially entering the club.’ accessibility speech Stevens, Breyer, by Ginsburg, and ing, joined sage disagreeable or read- that is to listeners J., JJ.). ers, (Souter, government.”) dissent- or the observed sexual ac- tants found that the County’s consultants entertainers danced clubs, they two-song lasting In other min- tivity occurring. roughly sets six result, indicating by entertainers utes. As a full reports performances ceived from entertainer, back, activity had occurred in those each back to would take that sexual only forty-two forty-eight past. clubs minutes. Ab- schedule, sent an alteration in that observations about the The consultants’ few, if any, gaps restriction would leave establishments’ business model is also re- during which entertainers who dance semi- vealing. purchase “drinks” Customers nude given night commingle on a could By purchas- an establishment’s bar. from prostitu- with customers. Given that the drink, ing gains a a customer time with an problem County directly tion in the arises price entertainer. As the the drink from the mingling of customers and enter- increases, the amount of time increases. drinks,” during tainers “conversation we establishments, privacy In some of a provision hold that the at issue is related directly conversation’s location also varies directly curbing prostitution. lengthy with the drink’s cost. For more “conversations,” sure, a drink can price To be establishments find $1,000. ways exceed “Dancers did confide” to to minimize the Ordinance’s effect. the consultants “that oral sex has occurred particular Dancers who do not dance on a ” during lengthy night the more ‘conversations.’ mingle are free to with customers. sure, put To did forward might Establishments lengthen also enter- that, clubs, “buying evidence at some performances tainers’ increase the simply [buying conversation was length conver- of breaks in performances. between However, we think it a sation].” reason- Such measures greater gaps would create able conclusion on this record that during there is per- which entertainers who had prostitution risk of when mingle enhanced formed could with customers. purchase higher-priced brings Nevertheless, of a drink the provision’s aggregate ef- longer and more secluded “conversation” fect will be to reduce both the number of between an adult entertainer and a cus- mingle entertainers available to and the tomer. The direct and they circumstantial evi- amount of spend mingling. time can dence upon relied demon- say We cannot that the Ordinance is not prostitution strates the existence of a reasonably designed to further the Coun- problem ty’s under Alameda Books. simply subject interest because those might try to it impact. to lessen its County’s chosen course also seems reasonably designed prostitution. to reduce We next examine provision whether the noted, As provision at issue requires “quantity leaves accessibility speech that an stay Books, entertainer at least substantially five feet intact.” Alameda away being occupied by 449-50, from areas cus- U.S. at (Kennedy, S.Ct. 1728 J., tomers for at least one hour after the in concurring judgment). In the performs entertainer stage. semi-nude on zoning context of the in ordinance at issue applied clubs, Books, As to these it clear is that Alameda Kennedy Justice wrote: provision issue will substantially “If two adult businesses are under the lessen roof, the number of entertainers who can requiring same an ordinance them to commingle with The average separate customers. will of have one two results: One number of employed giv- entertainers on a business will either move elsewhere or en night at these clubs is between seven city’s premise close. The cannot be the eight. and uniformly, Almost It cutting speech consul- latter. is true that adult or, say, at secondary outside the adult establishments reduce probably half would in There, again, But coffee house. discussions proportionately. the local effects literature, affairs, not reduction does proportional public or eroticism promised Ibid, added). Justice (emphasis freely. simply suffice.” flow We cannot con- uphold the ordi Kennedy then voted to provision, regulates clude that this ... “[dispersing adult busi commingling only particular place nance because in a and reasonably likely to cause a ... time, only period nesses a limited substan- secondary effects reduction substantial tially impairs quantity accessibility and Id. at very little.” reducing speech while speech. protected 451, 122 words, targeted In has other provision this leaves conclude that

We contact between adult entertainers accessibility protected quantity prostitu- customers that created a risk of rea- substantially intact for several speech It has done so in a manner that tion. First, only dancers it restricts those sons. substantially ability preserves the of those night and re- particular on a performing other, affected to communicate with each an hour after their them stricts although physical way they in a less than performing Those not on a performances. thus conclude that previously. could We wish; mingle they night may as particular satisfies scruti- provision intermediate may mingle after the performing those ny. Second, entertainers passes. time bar five feet from areas that may still remain IV permits occupy, provision so the customers next contend that the within the performed entertainers who violates the Contracts whole Ordinance customers, as previous speak hour to I, 10, of the Clause of Article Section are in areas five long as the entertainers it impairs because settle Constitution away from areas accessible to custom- feet agreement ment between some of DLS, Chattanooga, City ers. Inc. v. Cf. City Covington. and the We plaintiffs3 Cir.1997) (upholding 107 F.3d reject this claim. zone between customers a six-foot buffer says Clause Contracts Third, does stage). provision pass any ... ... Law “No state shall Instead, it communication itself. bar Obligation of Contracts.” impairing presence particular area physical bans §I Art. cl. 5. There U.S. Const. length of time. Should particular for a factors that courts must consider three the club want to con- entertainers within claims. evaluating Contracts Clause when away, patrons from five feet verse with complain factor is “whether the television, The first phone, via cellular closed-circuit impairment’ ‘a substantial ant has shown chat, provision would or electronic Linton relationship.” a contractual to such conversation. serve as no bar Env’t, Health Arnold v. Comm’r & entertain- Nothing in the Ordinance bars (6th Cir.1995) (citing Energy times to meet F.3d arranging specific ers from private party Kentucky No reasonable agreement rec- law. is not 3. The settlement case, joint appendix. agreement city expect in this nor is it in the with a ord could its result, plaintiffs a it is unclear which of As trump county Because no such enactments. However, agreement. parties succeed, were to unnecessary ex- is to could it claim claim's resolution irrelevant to this fact is parties to the the substance of or the amine City Covington could not have because agreement. settlement County, power under to bind Kenton had 494 delegated power Inc. v. Kansas Power & has Group, regulate to adult

Reserves 400, 411-12, Co., courts, county 459 U.S. 103 S.Ct. businesses to fiscal see Light (1983)). 67.083(3)(z), § Because this K.R.S. 74 L.Ed.2d had the dispose plaintiffs’ power of the to enact an adult-entertainment or- factor suffices claim, operate we decline to ad- dinance that would Coving- Contracts Clause within law, Kentucky ton’s dress the other two. borders. Under when county enacts a valid ordinance that Establishing impair a “substantial prescribes penalties, trump it will a less (1) that requires showing ment” there is 67.083(7). § city strict ordinance. K.R.S. (2) relationship; change that a contractual question There nois that the Ordinance at impairs in law that contractual relation system issue here creates a of administra- (3) ship; impairment that the is sub And, penalties. tive and criminal as noted Romein, Corp. stantial. Motors v. Gen. above, the Ordinance is a valid exercise of 181, 186, 112 S.Ct. County power. Accordingly, trumps any it (1992). Although agree L.Ed.2d 328 no Covington less strict ordinance. case, ment in the record of will is we Second, background rule must have agreement assume that a settlement exists incorporated any agreement been into be- and that it constitutes a “contract” under tween Covington plaintiffs. and the The Cf., e.g., Mascio v. Pub. Em Clause. agreement at issue here did not involve ployees Sys., Ret. 160 F.3d 310 Cir. parties, two power each with full 1998) con- agreement (holding pension Instead, tract. party, Covington, one pro between an individual and Ohio was Clause). agreed only could have to exercise its own tected the Contracts power particular way. in a No reasonable any cannot show that set- party expected could have Covington to agreement tlement between themselves sign away power that it possess, did not City Covington was substantial- belonged and which to a legally superior First, ly background impaired. Ken- entity. Reserves, Energy 459 U.S. at Cf. tucky county law makes clear that valid (quoting 103 S.Ct. 697 Veix v. Sixth trump city ordinances ordinances cases Ass’n, Bldg. Ward & Loan 67.083(7). § like this one. K.R.S. (1940)). 60 S.Ct. 84 L.Ed. 1061 Be- County clearly power had the both to en- cause the plaintiffs reasonably never could act this Ordinance and to make Ordi- interpreted have Covington’s assent as be- Covington’s nance effective within borders. ing broader than Covington’s power under Kentucky Constitution, Under law, Kentucky we hold that there could power expressly granted when a is to a have been no impairment substantial county government it exercise that agreement. settlement power incorporated city. within Fiscal Moreover, County City Court industry Louis- when an highly is of Jefferson ville, (strik- (Ky.1977) regulated, S.W.2d it unlikely that an exercise of ing Kentucky down under the Constitution general legislative power will constitute a delegation power county broad fiscal impairment substantial rights. of contract Reserves, upholding express delegations).4 courts but Energy 411 (quoting U.S. at Veix, 792). Assembly expressly Because the General 310 U.S. at See history "The metallic thread precision tra- counties it must do so with the of a through warp dition weave and woof of rifle shot and not with the casualness of a shotgun our Constitution is that while the General blast.” Fiscal Court of Jefferson Assembly may grant governmental powers County, 559 S.W.2d at 481. 2219, McCarter, 774, 781, 124 S.Ct. 159 L.Ed.2d Co. v. Hudson Water also (2004). 529, 349, 357, 52 L.Ed. 28 S.Ct. U.S. (1908). more industries There few long regulation as the As than adult entertainment.

highly regulated objective, “applies reasonably nondis issue history of by illustrated That much is cretionary criteria” and “does not seek to and Kenton Covington regulation such content,” ordinary a state’s court censor Kentucky law of County, by provisions satisfy require the second procedures will to counties and cities granting expressly Twp. Entm’t v. Charter ment. Bronco’s of businesses, adult see regulate power Buren, 440, 444 421 F.3d Cir. Van 67.083(3)(z) 82.082(1) (cities) & §§ K.R.S. 2005) Gifts, (citing Z.J. 541 U.S. at (counties), other by the multitude of 2219). However, licensing “[i]f S.Ct. by covered the con- municipal ordinances application subjec scheme involves report.. sultants’ standards, requiring speedy rules tive judicial may necessary.” decision be Ibid. Thus, Kentucky-law back- given the Cincinnati, Deja v. See also Vu L.L.C. regulated status of highly and the ground Trs., Twp. Bd. 411 F.3d Union industry, adult-entertainment (6th Cir.2005) ordi (noting licensing reasonably expected have cannot plaintiffs standards, subjective such applying nances fu- Covington bar agreement their the ordinance at issue in Freedman v. as County. According- by the regulation ture 734, 13 Maryland, 380 U.S. 85 S.Ct. ly, reject plaintiffs’ Contracts we (1965), ] L.Ed.2d 649 “necessitate[ claim. Clause placed judicial time limits be re strict view”) (citing Gifts, Z.J. 541 U.S. at

V FW/PBS, quoting 124 S.Ct. 596). 215, 110 challenge next the U.S. claiming provisions, review Ordinance’s A sufficiently they provide do not judicial they reg challenges Because prompt Addressing plaintiffs’ review. provi explication the review of the Ordi- protected speech, quires ulate a detailed satisfy prior-re provisions, which are both applicable sions must nance’s review judicial in nature. The contains two administrative and jurisprudence, straint which Dallas, into provisions split 493 administrative requirements. FW/PBS (1) 227-30, upon rejection parts: 107 three review (1990). First, for a new or renewed “any application restraint of an L.Ed.2d 603 (2) license, 11; as- upon § review imposed review can be see prior judicial Inspec- the License during points sessment of specified period for a brief (3) 16; tor, upon § review maintained.” see quo the status must be penalty, a license-related Second, judi- institution of prompt there must be Ibid. revocation, decision, for a suspension or the licensor’s which such as cial review of provi- any Ibid. violation of Ordinance’s decision. prompt includes sions, § Each of those adminis- Gifts, 541 see 17.5 City Littleton v. Z.J. See also chapter” "violation[s] 16 or as immediately clear Ordinance’s Section It is not from logical the most affirmative-duty under Section 17. We think provisions text whether the places the adminis- reading the Ordinance carry penalties suspension revoca- under Section 17. (rather tration of those violations only point penalties) are tion than hearings apply point-assessment “point-assessments” under Section 16’s as administered held, providing hearing a of a filing. contains clause Once is a deci- trative sections provided “in manner judicial review a days. sion must be issued within ten 17(d). 11(f), 16(h), by law.” See §§ & regard point-assessment With to hear- judicial-review provi- a 19 contains Section ings under Section the Ordinance con- denials, to license applies sion that sus- following procedures. tains the review revocations, pensions, and as well as a requires by The Ordinance notification stays the effect of orders provision Inspector’s point-as- mail of the License revoking denying, suspending, or license permits an appeal sessment then of during pendency judicial the review. a Hearing assessment to Officer with- 22, which creates misdemeanor Section twenty days. Hearing Officer must penalties, is not relevant to the outcome of hearing then schedule a that must occur appeal. We address relevant days receipt within ten ap- of the procedures in turn. view peal. days hearing, Within ten of the Hearing a Officer must issue decision set- ting findings forth of fact and conclusions complete application Upon filing again, obligation of law. Once there is no for a new or for the renewal of an license pursue an appeal administrative before license, existing issues a tem- judicial seeking “Any review. license hold- porary that remains in effect pend- license by aggrieved er the decision of either the judicial ing administrative review. If Inspector Hearing License or the Officer an application for a new or renewal license points may judicial to assess seek review denied, may applicant request is in a provided by manner law.” reconsideration, hearing for which must be regard With to administrative “violation days receipt filed within ten of the of the chapter” hearings, following process obligation initial decision. There is no place. is in Inspec- Whenever the License pursue judicial appeal; an administrative tor receives “verified or “in otherwise credible provided may review a manner law” immediately. information” that a “violation sought appeal chapter” If an is filed, occurred,6 a hearing Hearing must be scheduled for has Officer is obli- days gated by within fifteen calendar from the date hearing.7 Section 17 to hold a points are liability. express- those instances where as- tion of criminal Section reading ly acknowledges overlap sessed. That is most consistent with between conduct itself, requires criminally Section 16 punishable notice to and conduct assessed,” points subject only licensee "that have been penalty, to administrative so it permits "points poses reading administrative review after no bar to this of Section 17. assessed,” ("[Tjhe have been may and allows for same factual circumstances lead County’s penalty review of the "to decision assess to a under [Section 22] and also affect points.” Chapter” ability Section 17’s "Violation of of the individual to hold a li- cense.”). hearings apply any violation that is not governed by specific provision. a more It is provision general application. ap- hearing provisions apply "any It 6. These also if plies any provision” to "a required violation of the conditions for the issuance of Ordinance, changed” which would include violations of “anything license have or if affirmative duties listed Sections 14 the license have been untrue or incom- punishable by plete.” and 15 that are not the assess- points. Although ment of Section does chapter” include the procedural protections term in its 7. The "violation in the Section title, provisions its apply chapter” of con- hearings to courses 17 "violation of are sub- provisions duct that stantially violate of the Ordinance more robust than those in the Sec- enough imposi- point-assessment hearings. Compare serious to warrant the tion judicial-review clauses: a clause and a hearing is whether the subject of the “any provisions of the The former stay-of-enforcement has violated clause. licensee Hearing Offi- Chapter.” that, in this by listed a final says “[fjollowing decision hearing the for the date for cer must set Hearing Inspector the License or Officer thirty days ten and date between some license, revoking a denying, suspending or of the infor- Inspector’s receipt after the disapproving application or the renewal for indicating that a violation occurred. mation license, applicant may a such licensee or violation, “he Hearing finds If the Officer judicial provided in a manner seek review the license issued may suspend or revoke by says law.” The latter that “the License of a or in the case chapter, under this stay shall Inspector Hearing or Officer may “refuse to application,” he renewal pending of the Ordinance enforcement Hearing Officer renew such license.” judi- disposition proceedings for final fact and conclu- findings of must “issue review, during cial which time the status an order wherein the of law and sions of the will be maintained.'” quo applicant the com- may dismiss Hearing Officer added). (emphasis revoke a license or suspend or or plaint, ambiguity note that there is an We issued, or or renew permit previously only pre- refers to Section 19.9 Section 19 issued.” previously to renew a license fuse “applicant,” an serving quo the status for aggrieved by the deci- “Any license holder unlikely that this suspend to not for a licensee. It is Hearing Officer sion judicial review may oversight license ... seek be- such textual distinction was by law.”8 provided in a manner “judicial clause of the cause the review” by applies terms to “a same section its judicial specific to the review In addition the Ordi- applicant.” licensee or Were above, also noted the Ordinance provisions suspension nance to countenance 19, that provision, contains another Section during the pen- revocation of a license challenge the judicial review to guarantees review, it dency judicial would raise applica- license of a new or renewal denial problems. constitutional See an serious suspension or revocation of tion or the (“[T]he Entm’t, 421 at 444 two Bronco’s F.3d existing license. Section 19 contains 17(b)(2) provides rights, including forcement clause. That clause for (listing procedural § testify quo “pending calling will under of the status of witnesses who the continuation evidence, oath, subpoe- proceedings judi- production disposition for the final documents) added). says power people (emphasis and for with It noth- na for cial review.” 16(e) right proceedings. § (providing ing for the to examine or How- about administrative witness, ever, any listing judicial-review applies but not cross-examine clause procedural protections specificity similar disposition” of administrative after the "final 17(b)(2)). § chapter” pro- contained within proceedings. to those In “violation of ceedings, impairing a there is no decision Hearing operational ability Although appears only pro- licensee's until Section 17 ag- where an accu- judicial review for license holders issues one. In a case vide Officer by grieved by suspend, points and not results in a decision decisions to mulation of license, revoke, subject suspend a license holders licensor to revoke or decisions ju- stay proceedings may stay-of-enforcement also would revocation still obtain clause general ju- “pending 19’s order dicial review under Section the enforcement of the which, judicial provision, disposition proceedings review as discussed dicial final denials, below, provides judicial ap- review for need not even Since licensees review.” suspensions, administratively peal point-assessment revocations. be- review, seeking judicial they need fore any delay result from the significant endure that would 9. Section 19 also contains less proceeding. stay-of-en- administrative ambiguity, which arises from the during judicial must be maintained and licensees seek review “in quo status any judi- during provided by Although the course of a manner law.” we period and Nashville, review.”) Deja (citing acknowledge vagueness Vu of that lan cial Nashville, guage, 274 F.3d we conclude that Inc. v. Metro. Gov’t Ordinance’s (6th Cir.2001)). judicial language points pursuant 400-01 Section 19 review 23A.010(4), suspen- § countenance provides need not be read to to K.R.S. review, pending judicial generally or revocation sion review administra however, Inc., In Nightclubs, City and Ordinance is least tive action. Paducah, (6th ambiguous point. pro- on this Section 19 202 F.3d 891-92 Cir. 2000), judicial for review of various adverse city vides this court dealt with a ordinance actions, denials, including provided judicial any that “in administrative review revocations, and, jurisdiction.” suspensions, competent immedi- court of readWe ately following provision, language states: “The that apply to K.R.S. 23A.010(4). Hearing § Inspector Nightclubs, License or Officer shall Ibid. Based on stay pending judicial enforcement of the Ordinance we conclude this case that re proceedings ju- the final disposition provided by view “in a manner law” under County’s dicial review....” If enforcement of the ordinance refers to review 23A.010(4). judicial stayed pending § Ordinance is a final under K.R.S. validity of a suspension decision on the plaintiffs allege that review under

revocation, suspended no licenses will be 23A.010(4) § satisfy fails to require- judicial pending or revoked review. The ments of the First Amendment because it stay-of-enforcement following text this delays” creates “infinite process (“during provision which time the status judicial reaching a determination. For maintained”) quo applicant will be proposition, they Nightclubs, refer to stays need not read to limit of enforce- 23A.010(4) § which held that was unconsti- (effectively, ment maintenance of the sta- applied tutional as to an adult-entertain- holders) only quo appli- tus for license licensing ment ordinance. In Nightclubs, cants, preceding all of the text given the court judicial noted that such review clause. any way would not “in limit the time for moreover, At argument, County furnishing oral transcripts, conducting a court expressed Attorney understanding hearing, judicial his or rendering a decision.” subject to suspension licensees or revoca- 202 F.3d at (citing East Brooks Books (6th operate during pendency tion City Memphis, could of v. 48 F.3d Cir.1995)). judicial both administrative review. Accordingly, given the Ordinance’s textual Nightclubs here, controlling would be ambiguity County’s proffer and the at oral Supreme but for the Court’s decision in argument, permit we read Section 19 to There, Z.J. the Court held that Gifts. both applicants operate licensees and ordinary judicial “practices review during pendency of administrative and procedures” satisfy requirement judicial proceedings. prompt judicial long review as as the li- censing regulation “applies reasonably ob-

B jective, nondiscretionary criteria ... un- plaintiffs’ We now address the chal- related expressive to the content of the lenges judicial-review to the Ordinance’s materials that an adult business sell provisions. At each step display.” of the Ordi- or Gifts, Z.J. 541 U.S. at 782- nance’s process, applicants plaintiffs administrative 124 S.Ct. 2219. The do not First, discretionary re respect issue em the Ordinance argue that view, correctly characterize than such criteria. anything other ploys 23A.010(4) § provides the review that Hence, holding Night the central In Ac Taxpayer’s run-of-the-mill cases. does ordinary judicial review clubs—that v. Madison Board Group tion “promptness” requirement satisfy the Elections, (Ky.Ct.App. S.W.2d time specific not offer a it does because 1983), Kentucky not Appeals Court control longer decision—is no limit for a 23A.010(4) § under ed that the decision recently noted when court ling. As our determination review administrative statute, ordinary a Tennessee considering Kentucky’s the discretion of rests within satisfy generally will Z.J. judicial review However, Kentucky Su trial courts. County, v. Decatur See Odle Gifts. specifically has held preme Court Cir.2005). Moreover, 386, 391 F.3d “procedural process” requires due in Night at issue unlike the ordinance review of administrative action where clubs, pre at issue here the Ordinance rights are involved.” See “constitutional quo every relevant the status serves Res., Hilltop County Basic Inc. v. of during pendency the respect, including (cit Boone, 464, (Ky.2005) 180 S.W.3d 469 during the var application10 a license Catlettsburg, 437 ing City Morris v. Following Z.J. penalty proceedings. ious 753, (Ky.1969)). 755 S.W.2d holding that Nightclubs court’s Gifts, the in ev- rights are involved Constitutional 23A.010(4) unconstitutionally delays § challenging a licensor’s refusal ery action judicial decision must be over prompt his permit private party to exercise ruled. is, That where rights. First Amendment Nevertheless, raise two plaintiffs prior is a being what is administered distinguish arguments seeking to further constitutional speech, straint on free here from that judicial review at issue Thus, obviously implicated. rights are First, they claim that upheld Z.J. plain- alleviates the Kentucky law itself Gifts. by the courts under K.R.S. review Precedent indicates tiffs’ concerns. 23A.010(4) 23A.010(4) § of the entirely § is discre- review under generally judicial will be County’s licensing determinations this court’s deci- tionary, and thus violates right. Hilltop, accorded as a matter Nashville, 274 F.3d at Deja sion in Vu 469; Morris, at 437 S.W.2d 180 S.W.3d a ‘final guarantee it “fails to because Gifts, “pre- we must Z.J. 755. Under merits,’ as re- judicial adjudication on the are aware Kentucky’s “courts sume” safeguard.” first quired under Freedman’s to avoid ‘undue constitutional need Second, they at 41-42. Appellants, Br. of resulting] in the unconstitutional delay provided of review claim that the standard speech.’” 541 protected suppression 23A.010(4) satisfy the First by § fails to Thus, 782-84, 124 2219. it “of limited scope Amendment because at is- that the review plaintiffs’ allegation to limited issues.” Ibid. We and confined “discretionary” is not borne here is sue plaintiffs’ characteriza- conclude Kentucky law. out Kentucky points law on these are tions of Second, respect to the standard arguments lack with inaccurate and that these review, that a claimant plaintiffs argue merit. a new filing application for goes upon the of an respect, further In one the Ordinance val- temporary license remains applicants by provid- license. That quo for than the status judicial review concludes. temporary id until ing of a license issuance 500 administrative action under the court

challenging searching conducted a review of 23A.010(4) only prevail § can if the admin Attorney determinations of the Adver- “arbitrary istrative determination was and tising Commission and the Board of Gov- capricious.” Again, regard to run-of- Kentucky ernors of the Bar Association to cases, the-mill administrative law disapprove attorney certain advertise- See, plaintiffs e.g., are correct. Trimble ments. judgment The court rendered Snyder, Fiscal Court v. 866 S.W.2d attorneys, reversing Kentucky Bar (Ky.Ct.App.1993). Corp. See also Lab. because, judgment, Association’s in part, v. Holdings Rudolph, Am. 184 S.W.3d “reflected], the Association’s decisions ar- contracts) (Ky.Ct.App.2005) (public guably, a resolution of the against doubt Beauty Am. (quoting Corp. Homes v. allowing constitutionally protected County Planning Louisville & & Jefferson speech.” Ibid. Comm’n, Zoning (Ky. 379 S.W.2d Hughes & Coleman demonstrates that 1964)); Campbell v. Reis Bd. of Kentucky’s courts will not follow the defer- Educ., (Ky.1996) 938 S.W.2d ential review that plaintiffs (teacher termination); Special Fund v. claim they impose. Rather, will Ken- Francis, (Ky.1986) S.W.2d tucky’s courts will resolve reasonable (worker’s compensation); Thomas Cabi doubts in favor protecting speech. Ibid. net, (Ky.2001) (adoption). 57 S.W.3d 262 words, In other Kentucky’s courts will not also correct that such apply the standard of applies review that judicial review is deferential to administra to zoning, Snyder, decisions about determinations, 866 permitting challenge tive a 124, public S.W.2d or contracting, Lab. to succeed if the administrative action 73, Corp., 184 at S.W.3d to procedural process violated due or if “the administrative decisions challenger’s] restricting evidence in First [the favor was so Amendment rights. compelling finding heightened as to mandate a in The his standard of review Snyder, favor.” 866 applied by S.W.2d the Kentucky courts accords longstanding with the principle that courts However, in deciding as the context of apply searching should review to actions discretionary whether review is impinging on the speech. freedom of See issues, cases involving constitutional Randall, Speiser 513, 525, v. 357 U.S. 78 Kentucky courts have determined that a 1332, (1958) (“[T]he 2 S.Ct. L.Ed.2d 1460 different, searching, more applies review line speech between unconditionally guar- in First Amendment cases. Kentucky anteed speech may and legitimately Supreme adopted Court has following regulated, suppressed, punished or is as a principle Kentucky law: “[W]hen finely separation drawn. The legitimate regulatory body, directly indirectly, un illegitimate from speech calls ... sensi- dertakes the responsibility of restricting tools.”). McNary tive v. Haitian constitutionally protected speech, which in Cf. Refu- Ctr., Inc., gee cludes 498 U.S. lawyer advertising, it 111 must resolve S.Ct. 888, (1991) any 112 in favor of L.Ed.2d 1005 permitting (applying doubts the con de stitutionally protected speech.” novo rather Ap In re than abuse-of-discretion stan- peal Coleman, 540, Hughes & 60 dard to S.W.3d constitutional claims in the context 544 (Ky.2001).11 Coleman, In Hughes & of a particular immigration program); 11. The Hughes statute at capricious issue in & Coleman exercise of discretion. 60 S.W.3d provided sense, the Board's determinations at 543. In that it is broader than the errors, were legal clearly reviewable for generally erro- review available under findings, 23A.010(4). neous arbitrary § factual or the

501 70, them at an electoral risk. Bredesen, puts 74 waste Fed.Appx. Wilson Commensurately, government’s deci Cir.2004) Tennessee law (noting that expenditures generally is sion to incur administrative determinations subjects taxpayers. challenge by the legal immune from ques when constitutional novo review de Reli Hein v. Freedom From . issue) Cf v. Robin (citing State tions are — Found., Inc., —, gion (Tenn.2000)). 476, son, 29 S.W.3d (2007). 2553, 2569, 168 L.Ed.2d 424 S.Ct. plain- that the conclude Accordingly, we transfers government But once the under distinguish review tiffs’ efforts parties via a private of a measure cost 23A.010(4) up- judicial review § from the fee, measure becomes licensing sub in Z.J. Supreme Court by held Gifts challenge. general ject private States expressly overrule We unpersuasive. are vigorously, their laws as ly may enforce that, and hold as on this issue Nightclubs A laxity, they much as like. or with as 23A.010(4) matter, § satisfies general choose to call out the National state First Amendment. an adult-entertainment Guard to enforce ordinance, with the leaving but licensees

VI far. go would too check claim that the next decades, the Over the course of several uncon imposed by the Ordinance fees decided three cases Supreme Court impos stitutionally large. The Ordinance our here: Cox v. New approach influence establishments, 576-77, 569, $3,000 61 S.Ct. Hampshire, license fee 312 U.S. es a (1941), L.Ed. 1049 Murdock v. if the license $1,500 is refunded of which Pennsylvania, 319 U.S. denied, non-re application $155 (1943), Forsyth L.Ed. 1292 managers and entertain fee for fundable Movement, County v. Nationalist court, although noting The district ers. 120 L.Ed.2d 101 provided Defen that “the information (1992). those cases re- We believe expenses it would support dant” “secondary ef- quire a consideration administering the Ordinance incur in (1) questions: of three wheth- fects” cases out and calculat “could have been broken amount will deter the fee’s maximum er detail,” exacting nevertheless ed in more rights, First Amendment the exercise of they because licensing fees the upheld (2) measures the cost of which whether the expenses “reasonably related the were to licensees County seeks transfer the the ordi incident to the administration narrowly tailored its fee structures via nance.” advancing County’s interest means (3) effects, secondary curbing in A County’s cost estimates whether the the Su- from the outset noteWe reasonable. Because measures are those enunciated a has never preme Court not undertake this court did the district to the constitu- approach comprehensive of ma- genuine issues inquiry, and because charged for licensing a fee tionality of issues, on these we present fact are terial rights. Amendment of First the exercise summary judg- court’s the district vacate Thus, general principles. from begin we further and remand for ment on this issue bears its own government proceedings. When (or costs, hope at least expect can one B

for) offi- frugality. Elected degree a Supreme prodigal incur or turn to those three often loath to now cials are We Cox, First, in such Court decisions. because superfluous expenditures 576-77, upheld expense the Court a incident to the administration of a a required permit group before law the Ordinance and to the maintenance of a parade public could down road. The in public order the matter licensed.” Ibid. ranged fee from a “nominal” permit language The ordinance’s was lifted almost $800, “public depending amount to word-for-word from the ordinance at issue expense policing” or cost associated Cox, 312 U.S. at S.Ct. event. Ibid. The Court held that the Nevertheless, struck Court it down constitutionally permissible, Cox fee was licensing regula- and made clear that a fee contrary noting nothing that “there is First, requirements. tion must meet two charge the Constitution in the of a fee” it delegate overly licensing must not broad tax, a but one to meet is “not revenue government discretion to a official. Sec- expense incident to the administration ond, “any permit controlling scheme public maintenance of of the Act and to the time, place, speech and manner of must order in the matter licensed.” Ibid. not be based on the content of the mes- Murdock, Second, in 319 U.S. at sage, narrowly must be tailored to serve a a flat the Court struck down fee significant governmental interest, city to all charged canvassers and open ample must leave alternatives held that solicitors. The Court where a communication.” 505 “fixed in amount and license fee is unrelat- S.Ct. 2395. In its holding,12 the Court scope petition- ed to the of the activities of Cox, sharply noting limited nothing revenue,” ers or to their realized it is suggested Cox that the Hampshire New unconstitutional. Court reached that permitted licensing statute vary result based on its conclusion that fee to the flat content, “imposed regulatory fee was not as a based on such as whether defray expenses measure to of policing speech provoke would a hostile reaction is, question.” the activities in That be- from its audience.

cause it forced some licensees to bear they more than the costs impose, would Our court has distilled two fee violated First Amendment be- Cox, general principles Murdock, from required potential cause it licensees to First, Forsyth County. “an ordinance re “purchase, through a license fee a li- quiring person pay permit a license or tax, privilege freely cense granted by fee before can engage he a constitution the constitution.” Ibid. ally protected activity does not violate the long Constitution so purpose as the

Third, 123, in Forsyth County, 505 U.S. charging the fee is limited defraying 130-34, 2395, 112 sharply S.Ct. the Court expenses occurred in furtherance of le limited Cox and struck down a discretion- gitimate state interest.” ary fee Northeast Ohio high upper with a limit. The ordi- Coalition City nance at the Homeless v. provided applicants issue that for Cleveland, 1107, permits amount, an 105 pay had to advance F.3d 1110 Cir .1997). $1,000, words, by not to In exceed to be determined other in order to transfer designed the licensor government “meet the the cost of a measure to a (1) concerns, 12. The Court security held that the ordinance con- were often based on which discretion, ferred too much because it was the Court held would amount to a heckler’s applied by county nearly officials to confer 133-34, Forsyth County, veto. at discretion, (2) unfettered that the ordi- 112 S.Ct. 2395. Harry Kalven, Jr., Cf. permitted nance content-based discrimination Negro (1965). and the First Amendment 140 because the differentials fee structures

503 genuine ceedings because there are issues legiti- licensee, itself must be the measure Coalition, preclude granting F.3d of material fact that Northeast Ohio mate. Thus, County. “[A]ny the measure “must be summary judgment at 1110. to the message, must the content of time, based on place, permit controlling scheme significant tailored to serve narrowly not be speech and manner of must based interest, and must leave governmental message^] the content of the must be on for communica- alternatives open ample narrowly significant tailored to serve a County, 505 U.S. at Forsyth tion.” interest,” and must not be governmental Second, also the court 112 S.Ct. 2395. high constitutionally protect as to deter so County creat- acknowledged Forsyth County, 505 at speech. Forsyth ed govern- limit on the amount ed some County 2395.13 The bears S.Ct. potential on the charge, could based ment showing the burden of that its measures protected speech. for a fee to deter Fish, Inc., Fly narrowly are tailored. See Coalition, 105 F.3d Northeast Ohio Beach, City 337 F.3d v. Cocoa 1110. (11th Cir.2003). Nightclubs, See also ade- that such a framework We believe 4; Kentucky F.3d at 888 n. Restaurant dangers dis- guards against quately Louisville, 209 Concepts City v. Forsyth County by the Court cussed (W.D.Ky.2002); F.Supp.2d 691-92 First, even if each individ- and Murdock. Lights City Newport, 830 Bright narrowly-tai- reflects a ual cost assessed (E.D.Ky.1993). F.Supp. advancing govern- means of lored acknowledge regime that the at is- We interest, is still a chance that ment’s there Books, content-neutral, is not Alameda sue significantly amount will de- the fee’s total (Kenne- 448-50, 122 535 U.S. at speech. constitutionally protected ter J., dy, concurring judgment), in the Forsyth County, 505 U.S. possibility raises the consideration, Second, upon close busi- unpopular an subset of its penalizing dangers highlighted that the we believe record, in the nesses. There is evidence Court are subsumed within Murdock County charges example, analysis. gov- If the Forsyth County exceed tax that cannot operational $50 narrowly tailored ernment’s measures outside the adult-entertainment businesses in- advancing government’s means of County’s li- industry. According to the terests, government’s and if the estimates those other businesses inspector, cense those measures are reason- of the costs of file employees their must and some of able, those costs to licen- transferring then required from applications similar to those facially unconstitutional sees cannot be establishments. adult-entertainment tax under Murdock. also for those businesses licensing regime C hearings and incorporates administrative confronting a here, Were we point-assessments. Applying principles those press, such regulation targeted pro- case for further we must remand this target appropriately to behavioral tailoring more narrow of the seems 13. We think that the Forsyth County monetary the second ele- exactions. fees under ment, restrictions rather than setting upper limit narrowly combined with the tailored the costs of If a fee reflects range point speech-deter- at the of the fee speech, it deter would measures and will not rence, open ample alternatives for will "leave superfluous apply the third element of to be under the third element. communication” Forsyth County. inquiry "ample alternative channels” The tor, only justi- treatment could County says, differential the will spend forty County point if the could attending fied some hours hearings, forty hours con- special press characteristic of ducting inspections the initial of the five estab- higher would warrant the fee. Minne- in County, twenty the lishments hours con- apolis Star & Tribune v. Minn. ducting follow-up Co. inspections, forty- and Revenue, Comm’r listening “general 103 two hours questions (1983) (“[D]if- S.Ct. 75 L.Ed.2d 295 and complaints.” deposition, In his treatment, justified by ferential unless though, County Treasurer said special press, some background characteristic of the “we have no go on as far as suggests goal regulation many is hearings happen [how] that would or suppression expression, unrelated to point whatever of assessments.” a goal presumptively is unconsti- such County The incorporated also has vari- tutional.”). possibly ous questionable costs into the fee

However, Supreme calculation, Court has re- including a one-time cost of peatedly $15,000 reviewed effects” or- “secondary a yearly amount exceeding $2,500 degree scrutiny ap- dinances under the the purchase and maintenance plicable to content-neutral regulations. software, of database for the customized Books, 535 U.S. at licensing Alameda S.Ct. regime. say, We cannot without J., (Kennedy, concurring judg- more evidence about necessity of in- ment). Renton, cost, See also curring 46- that a measure whose despite 925. That is goal so could be reached by using either government’s clear County’s differential treatment current computer system by adult businesses those cases. The costly less employing data- off-the-shelf justified, differential treatment is “narrowly base software is tailored” to ad- held, Court by “secondary has peculiar County’s vance the interests. effects” associated with adult businesses. Similarly, County has in a factored As long justified as the fee differential per applicant cost for a background $150

by the “secondary adult effects” of busi- check. is clear from It the record that the nesses, we will treat it as content-neutral City Covington also conducts back- for Forsyth County purposes. ground part checks as licensing its

Thus, the Forsyth County inquiry col- gime. license, A Covington costs though, lapses question into the of narrow tailor- only any applicant, including for $150 ing. County’s regard choices with County establishments. The has not ex- pass costs it will on to licensees plained why checks, are background its they constitutional if “narrowly are it expensive concedes more than those tailored to significant serve govern- [the] by Covington, conducted will further the mental interest” in combating “secondary County’s any interest more than less-ex- effects.” Forsyth County, 505 pensive U.S. at measures. Cf. 130, 112 S.Ct. 2395. We cannot conclude First, We also note two points. other genuine there was no issue material many of the incorporated by costs issue, fact on this and so we must vacate County paid only be will once or will de- the district judgment court’s remand substantially crease in amount the sec- for further proceedings. year. time, ond Over the County’s reve- given has various estimates nues exceed the costs imposed by the of the hours its officials will spend enforc- licensees terms of administering the ing this Licensing Ordinance. The Inspec- regime. scenario, In that it would be clear opin- with this proceedings consistent “narrowly ther not reflect would the fees ion. secondary ef- reducing means tailored” Second, County’s retention

fects. appli- CLAY, in Judge, dissenting part denied establishment $1,500 from Circuit costs the Coun- only the in concurring part. must reflect cants and Although denial. in the license ty incurs No. 451.12 County Ordinance Kenton regard, in this no determinations we make “secondary ef- to address the purports as to whether issue genuine is a there establish- of adult entertainment fects” might far exceed amount of that retention licensing scheme that by imposing a ments denying those processing the costs for business apply businesses requires applications. fees, licenses, by annual and abide pay undertake court failed district employees. on the conduct restrictions case, in as inquiry this any tailoring majority from the respectfully dissent I Forsyth County, U.S. by quired 451.12 is because Ordinance No. opinion in briefly engaging After 2395. 112 S.Ct. to survive insufficiently narrowly-tailored ourselves, conclude we cannot inquiry provide scrutiny, fails intermediate of material issue genuine was no there review, imposes exces- prompt that we have this issue. We stress on fact However, agree I with licensing fees. sive findings whether any made about analysis of the Contracts majority’s these costs County properly assessed opinion. of its in Section IV issue Clause However, the dis- its licensees. against remand, in an must, engage on trict court I. the meas- that determines whether inquiry at- No. 451.12 Kenton Ordinance to licen- ures, on passed costs were whose “secondary target negative tempts to its sees, to advance narrowly tailored were establish- entertainment of adult effects” effects.” “secondary combating interests other illicit prostitution and such as ments 130, 112 County, 505 Forsyth by entertainers requiring conduct sexual (5) five distance of a minimum “maintain on inquiry in further engaging Without the establishment’s from areas on feet on issue, district court instruct the we customers, being occupied premises (1) whether to determine: remand (1) the enter- hour after minimum of one the exercise will fee’s total amount deter on the establish- semi-nude appears tainer (2) whether rights; Amendment First 451.12 No. premises.” Ordinance ment’s the fee’s amount associated measures 14(a)(10). § advancing narrowly tailored means (3) interests; whether County’s adult entertainment A restriction nar- for those County’s expression cost estimates and is protected that affects secondary are reasonable. ef- rowly tailored measures to decrease designed in- subject to expression is of such fects VII Angeles scrutiny. City Los termediate Books, Inc., 535 U.S. Alameda in v. AFFIRM foregoing, we on the Based (2002) L.Ed.2d 670 judgment part part and VACATE interme- J., concurring).1 The (Kennedy, fur- court, and REMAND the district plurality judgment ion concurred concurring opinion has Kennedy’s 1. Justice Marks v. United See narrowest basis. opin- on the as his authority precedential inasmuch 506 scrutiny governed by

diate test is United As a result of the ordinance’s restric- O’Brien, 367, tions, v. 391 U.S. patrons States 88 S.Ct. and entertainers are prohib- (1968). 1673, 672 ited not physical 20 L.Ed.2d from contact According or so- court, prostitution, licitation of government to the O’Brien “a but regu- also from any conversation on sufficiently justified subject. Although is if it lation is within the County has legitimate power interest de- constitutional Govern- creasing the prostitution, incidence of it ment; if it important furthers an or sub- go any length to achieve this interest; governmental stantial if gov- goal. Regardless of whether entertainers ernmental interest is unrelated to the and customers wish to continue to develop of free suppression expression; and if the fantasy erotic created on stage incidental restriction on alleged First they whether wish to talk up- about an Amendment greater freedoms is no than coming political any election or other top- is essential to the furtherance of that in- ic, Ordinance No. severely 451.12 limits O’Brien, terest.” their ability to do so. An ordinance that S.Ct. Accord Hamilton’s Bogarts, restricts interaction to such a degree that (6th Michigan, Inc. 501 F.3d the most options viable for conversation Cir.2007). Although legislatures may reg- patrons between and entertainers include ulate adult entertainment establishments communication “via phone, cellular closed- in order to secondary address effects such television, circuit chat,” or electronic Maj. as crime and prostitution, regulation this Op. at clearly decreases and substan- must crafted so that “the incidental tially interferes with quantity ac- and restriction on alleged First Amendment cessibility speech. greater freedoms is no than is essential to The contradictions majori between the furtherance interest.” ty’s discussion effectiveness of the O’Brien, 391 U.S. at 88 S.Ct. 1673. regulation and its discussion of the nar Ordinance No. 451.12 falls far short of row-tailoring requirement reveal the fatal objective. this The ordinance forbids en- weakness in Ordinance No. regu 451.12’s tertainers from within coming five feet of latory scheme. Although the language of customer-occupied areas for an hour after the ordinance highlights the need pre performances. entertainers’ As the vent illicit sexual contact prostitution, notes, majority provision would “leave regulation purports to attempt to de few, any, if gaps during entertainers crease the prostitution incidence of by de who dance given semi-nude on a night creasing opportunities for entertainers could commingle with Maj. customers.” (J.A. customers talk to each other. Op. at very 492. At the least it would (a 136, 141 drafter of the ordinance dis “reduce both the number of entertainers cussing the desire to decrease “oppor available to mingle and the amount of time tunity negotiations”).) Thus, po can they spend mingling.” Maj. Op. at tential effectiveness of this ordinance in 492. One credibly cannot assert that this deterring prostitution directly propor stringent restriction “the quantity leaves tional to its effectiveness at foreclosing accessibility speech substantially in- opportunities speech. The Supreme Books, tact.” Alameda 449-50, 535 U.S. at Court has expressly stated that regula J., 1728 (Kennedy, concurring). tion that works way in this is unconstitu- States, Akron, City Inc. v. 40 F.3d (1977). Grille, L.Ed.2d 260 Triplett Cir.1994). Accord

507 it addressed tailored because narrowly in concurring opinion his In tional. due to the near that occurred Kennedy problems Books, Justice Alameda up-close per- during nudity of dancers may not city “[a] that emphasized peatedly involving the formances, dances such as secondary effects reduce it will that assert dancers’ cream from whipped of licking propor- same in the reducing speech by propen- violent 449, potentially and the bodies Books, at U.S. 535 Alameda tion.” prox- in desiring to be close men J., concurring). sities of (Kennedy, 122 S.Ct. These dancers. Id. J„ near-nude imity (Kennedy, with 122 S.Ct. at id. See here since not issue are at sec- concerns (“It to reduce no trick is concurring) con- fully while clothed its entertainers speech or reducing by ondary effects patrons. with versing sec- may not attack audience; city but a attacking by indirectly ondary effects ability on the zones of buffer The effect speech.”). was not discussed patrons to converse however, Deja at in DLS; it was issue in ordinances many of the in

keyA factor Nashville, Metropolitan Inc. v. Gov narrow Vu to be determined courts have that of Coun and Nashville Davidson of ernment regulation ordinances’ is the ly tailored of (6th Cir.2001), Tennessee, 274 F.3d 377 ty, the en expression and not conduct an ordinance upheld in this Court v. City in Erie example, For tertainers. be buffer zone a three-foot imposed that A.M., 120 S.Ct. 529 U.S. Pap’s during and customers entertainers (2000), tween Supreme 146 L.Ed.2d contended The performances. required ordinance upheld Court entertainers’ violated the ordinance G-strings and pasties wear dancers to con by limiting rights First Amendment noted that The Court performing. while but, recognition versation, despite its message being not the nudity itself was expressive as to free A.M., rights entertainers’ Pap’s in nude dance. expressed zone sociation, upheld buffer Therefore, the court 289, 120 1382. and entertain because customers part in contained restrictions held that Court from a three-foot still converse ers could narrowly tailored to were the ordinance in court held Id. at 396. distance. public health interest government’s preventing interest governmental regu ordinance safety “[t]he and because disease spread of and the prostitution impact conduct, any incidental lates justified bodily fluids transfer dancing through is nude element expressive custom between requirement distance 120 S.Ct. 1382. Id. minimis.” de Id. at 396- performers. semi-nude ers and circumstances, this Court Under some case, re provision the instant In 97. require buffer statutes that upheld has interaction patron-entertainer stricting entertainers semi-nude zones between at issue regulation than the goes farther are danc- the entertainers while patrons fully- requiring Deja Nashville Vu of DLS, Chattanooga, City Inc. v. In ing. dancing who are entertainers clothed Cir.1997), the ordinance 107 F.3d customer- away from five feet to remain six to remain dancers required at issue range areas, outside of well occupied during perform- customers away feet from oc could conversation which normal within zone was The buffer ances. Id. at cur. to address narrowly tailored found to be Deja Vu by DLS and As demonstrated violent crime transmission disease a dis- Nashville, impose ordinances However, the ordi- at 413. concerns. Id. an entertainer while requirement tance was found to in DLS challenged nance performing semi-nude are on firmer con- Dallas, Inc. City PBS ground stitutional than the ordinance at 596, 107 (1990)). L.Ed.2d 603 issue in case. previ- ordinances The second Freedman safeguard requires ously upheld by this Court targeted the the assurance of a “prompt final real danger of illicit immediate sexual con- decision” when an applicant appeals an tact of targeting speech instead pur- licensing adverse Freedman, action. 380 portedly lead prostitution. could to future 59, at 85 S.Ct. 734. Supreme The ordinances regulation involved of Court recently has clarified that this sec physical contact which is incidental to the ond factor will in most cases be satisfied entertainer’s erotic message. To the ex- by allowing applicants appeal license physical tent contact a part of erotic denials through a ordinary judicial state’s message, the attempted ordinances to nar- process. review City Littleton v. Z.J. rowly tailor goal restrictions of pre- D-4, L.L.C., 541 U.S. Gifts venting illicit sexual by contact prohibiting (2004). 159 Thus, L.Ed.2d 84 contact while nude or semi-nude entertain- order for a licensing ordinance regulating However, ers are dancing. Ordinance No. sexually oriented businesses to be constitu prohibition 451.12’s effective on virtually tional, it must ensure the maintenance of all communication, including innocuous quo status until a prompt judicial final conversations, is not narrowly tailored decision is reached regarding an adverse goals. these licensing Deja decision. Vu Cincinnati, 411 F.3d at 786. Accord Odle v. Decatur II. County, Tennessee, (6th 421 F.3d 389 Ordinance No. licensing 451.12’s scheme Cir.2005). acts as an unconstitutional prior restraint Kenton County No.

on Ordinance protected speech. 451.12 ‘prior “A restraint’ an acts as unconstitutional prior exists when the exercise restraint of a First Amend speech on inasmuch as it ment not right depends does allow on the for prior approval prompt judicial review of public suspen- license Deja Nashville, officials.” Vu of Inc., sions and revocations and provide 274 F.3d at 400. does This Court has for the recognized that maintenance of the “any system quo status prior re some cases. straint Section 17 governs a heavy carries presumption hearings against regarding validity.” its violations of Id. ordinance. “Licens Or- ing dinance § No. city schemes a 451.12 17. These hearings ordinance regulating are sexually distinct oriented from hearings governed businesses constitute a prior Section 16 to restraint must incorporate determine points whether least the first two should be Freedman assessed Mary [v. ordinance viola- land, tions. Section provides 17 that when a (1965) L.Ed.2d 649 procedural Inspector License ] safe receives credible infor- guards” in order to being avoid mation an a regarding deemed violation of the ordi- impermissible prior nance restraint. Id. she at 400- must schedule a hearing to oc- 01. The first Freedman cur ten safeguard to thirty days re later. After the quires the issuance of a hearing, license within a the Hearing Officer must issue an “specified and period reasonable time dur order “dismissing] the complaint, or sus- ing which the status quo is pending] maintained.” or revoking] a or permit license Deja Vu Cincinnati, L.L. C. v. previously issued, Union or renewing] or re- Township Trustees, Board 411 F.3d fusing] renew license previously is- (6th Cir.2005) (en banc) (quoting 17(b)(3). § However, sued.” FW/ no time limits (“First Cir.2000) Amend order, n. of this the issuance placed reed very rest on a thin would rights ment decision result, the administrative as a attorney at city of a promises if the indeed peri- for an indeterminate delayed can to au alone sufficient were argument oral may only seek addition, party In od. of an ordi meaning thoritatively limit the decision receiving after review nance.”). possible have statutes 17(d). Thus, li- When § Hearing Officer. inter unconstitutional constitutional indeterminately may wait holders cense a rea them give are to courts pretation, decision. an administrative long time to save in order interpretation sonable deprived of are also holders License Odle, 421 unconstitutionality. from them Ordi- quo under the status maintenance competing are no But there at 396. F.3d ordi- 19 Section No. 451.12. nance case, and in this interpretations reasonable will be quo that the status states nance in order statute language to insert judi- an seeks applicant while maintained beyond Court’s go would this rewrite it to no makes review, the ordinance but cial v. Eubanks See interpretation. role seeking holders for license provision such Wilkinson, 1122 Cir. F.2d defending licenses their renew to that 1991) (“[T]he rule is federal general Be- licensing infractions. alleged against create to rewrite statutes courts do not provide not does the ordinance cause Thus, No. Ordinance constitutionality.”). hold- to all license review judicial prompt unconstitutional declared should be 451.12 quo the status not maintain and does ers judicial prompt provide to it fails because seek who holders those license for status of the the maintenance review con- not does review, No. 451.12 Ordinance the revo faced with holders quo for license safeguard Freedman first tain licenses. of their suspension cation or unconstitutional. be declared thus should constitutionality of the In its discussion III. judicial review 451.12’s No. Ordinance No. 451.12 County Ordinance Kenton that majority claims provisions, establishments adult entertainment quires regarding ambiguous is ordinance li- procure to employees their well as as are sus licenses when of licensees rights ordinance, the According to censes. majority also or revoked. pended annually, with fee is $3000 license business causing this the omissions concedes is if the license to be made refund a 50% intentional. probably were “ambiguity” enter- managers and Additionally, denied. to majority attempts at 497. Maj. Op. annually for individ- pay $155 tainers must quo that the status its contention support to issued are to be Licenses ual licenses. process the review during maintained background satisfy a can who applicants invoking of licensees all categories completed application and submit check entirely unclear government’s dem- The record required fees. argument. oral equivocal concessions uncon- fees are these license onstrates expressly has This Court at 498. Maj. Op. stitutionally excessive. rel by the offered that “assurances stated a fee impose may not a state Generally, the ordinance authorities local evant constitutionally aof exercise upon the effect put [unconstitutional] not be will applied license tax “A right. guaranteed save are not future” sufficient First by the guaranteed its to activities on is unconstitutional ordinance ... destruc- [a] would have Amendment Night See Odle, F.3d at 397. face. Pennsylvania, Murdock Paducah, tive effect.” F.3d clubs, City Inc. v. (1943). (1992). S.Ct. 870 In Forsyth County the fee in- rule, Despite Supreme Court has creased on depending “the amount of hos- held that a license fee imposed as tility likely to be created by the speech long as the fee is “a one, nominal imposed on based its content.” Id. Those speakers as a regulatory measure and calculated to with more controversial messages would defray the expenses of protecting those have to pay more they because would re- streets and at against home the abus- quire increased police presence. Id. The es of solicitors.” Id. at 63 S.Ct. 870. Court determined that such a rule was As this explained, Court has “an ordi- unconstitutional because it increased the requiring nance a person pay a license speaker fee a to pay had based on the or permit fee he can before engage in a content speech. 136-37, Id. at constitutionally protected activity does S.Ct. 2395. As Justice Kennedy reiterated violate the Constitution so long as the in Alameda Books: purpose of charging the fee is limited A city may not, for example, impose a defraying expenses incurred further- content-based fee or tax. See Arkansas ance of a legitimate state interest.” Project, Writers’ Inc. v. Ragland, 481 Northeast Ohio Coalition the Home- 221, 230, 107 1722, S.Ct. 95 L.Ed.2d City Cleveland, v. less 1107, 105 F.3d of (1987) (“[Ojfficial scrutiny of the (6th Cir.1997). 1109-1110 The fee will be content publications of as the basis for upheld long so as it is “reasonably related imposing a tax entirely incompatible to expenses incident to the administra- with the First guarantee Amendment’s tion of the ordinance.” Id. at 1110. of freedom of press”). This is true even if

The government Eleventh Circuit purports has applied justi to fy the rule fee specifically in the reference to secondary context of adult effects. entertainment establishments and con- cluded that “a licensing fee on en- adult Books, Alameda tertainment establishments ... must be 1728 (Kennedy, J., concurring). reasonably related recouping the costs In case, the instant County Kenton has of administering licensing program.” given a detailed explanation of its rationale Fly Fish, v. Inc. City Beach, Cocoa of license fees. County’s The cost F.3d Cir.2003). Accord- estimates include an initial cost of over ingly, “it is City’s burden to establish $15,000 and an annual cost $2,500 of over its licensing justified fee is by the for the creation and maintenance of a data- cost processing application.” Id. base for the licensing scheme. The Coun- The record must support the contention ty also claims that background cheeks will that the city has made reasonable efforts cost per person $150 because of an exten- to ascertain the costs associated with the sive investigation of each applicant. How-

licensing program. ever, the County has not accounted for the

The Supreme Court has further noted difference between this cost and the sub- that the amount of any fee cannot be tied stantially lower costs of background to of speech. content Importantly, the checks in nearby jurisdictions. In addi- Court was confronted with an tion, ordinance the County given has no basis for its required speakers to pay a fee fifty retention percent of the license fee order to public use lands. Forsyth County for those applicants who are denied licens- v. Movement, Nationalist Thus, es. the County has not shown that 134, 112 120 L.Ed.2d 101 the fee is based upon its reasonable costs licensing pro- for the administration America, UNITED STATES Coalition Ohio gram. Northeast Plaintiff-Appellee,

Homeless, 1110. F.3d to ad- majority opinion attempts licensing fees the issue excessive dress PHINAZEE, L. Defendant- Rafael for fur- district court to the and remands Appellant. whether these fees ther consideration 06-5730. No. narrowly purpose tailored secondary of adult effects reducing Appeals, United States Court majority claims that entertainment. Sixth Circuit. of material fact genuine issues “there are Argued: Oct. 2007. summary judgment granting preclude County.” Maj. Op. at 503. Yet to the Filed: Decided and Feb. already that the evidence there is justify cost estimates used exorbitant applicants fees on license

levying high countervailing evidence on the record

no the amount of the fees are

suggest costs render

justifiable. These excessive the statute licensing portion fee

unconstitutional, so hold. and we should

CONCLUSION 451.12 sub-

Kenton Ordinance quantity ac-

stantially diminishes expression, imposes

cessibility protected protect- prior restraint on the exercise opportunity without expression

ed review, and exces- imposes

prompt As a applicants. on license

sive fees

sult, held to be this ordinance should be

unconstitutional.

Case Details

Case Name: 729, INC. v. Kenton County Fiscal Court

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 6, 2008

Citation: 515 F.3d 485

Docket Number: 06-6390

Court Abbreviation: 6th Cir.