*1 good appellant presented to allow deciding cause language testimony, we note used of alibi the introduction Florida, Supreme in Williams Court high that a notice of alibi (1970), court determined in which said, The Court at to ours was constitutional. statute similar 83, n.14: ques- emphasize does not that this case involve the We sanction, validity peti- of the threatened had tion of comply rule. notice-of-alibi chosen tioner discovery can to what extent State enforce Whether and comply, by against who fails to a defendant exclud- rules ing relevant, question probative raising is a Sixth evidence explore. have no issues which we occasion to Amendment relevant, erroneously proba- excluded trial court We think rule, enforcing discovery despite means of as a tive evidence showing non-compliance good cause for the rule. Cf. State, Barker v. (1979). of error need not be addressed inasmuch contentions Other necessarily they appear would reoccur. as does it new trial. reverse remand for would RANCH, KUBAN, dba and LORRAINE JUDY’S JUDY RANCH, Appellants, HELMS, dba SHERI’S v. JOHN Attorney Capacity McGIMSEY, His as District ARNOLD, County; EDWARD M. RALPH L. Lincoln Capacity LEE, and KENNETH D. SMEATH Their County; HAROLD J. of Lincoln Commissioners Capacity WOODWORTH, His as Sheriff of Respondents. No.
January *2 Fleishman, Brown, Rohde, & A Corpo- Weston Professional Hills, California, ration, Andrews, Beverly and Alan B. Las Vegas, Appellants. McGimsey, Attorney, John S. District Respondents.
OPINION Court, Manoukian, J.: By the *3 denying plaintiff-appellants’ appeal from an order In this relief, compensatory declaratory, injunctive
complaint and for They (1) are: Whether Nevada’s us. issues confront two main preclude certain counties from com- statutory enactments Whether, (2) assuming prostitution; and prohibiting pletely valid, a of proscription it consitutes process. now to address them. We turn County of Lincoln Board Com 1977 the 1971 and Between ordinances, missioners, through of various the enactment regulated imposed prostitution on and restrictions defined of in In November of brothels number approval expressed County their of voters majority Lincoln of consequence of the of As a number legalized prostitution. prostitution and the difficulties for houses of applications brothels, regulating the Lincoln otherwise policing and of of May electorate, by on referendum County initiative percent majority nearly an ordinance which by a 64 approved county.1 operated Appellants had in prostitution prohibited and, expended large had until from their provides: No. 1978-1 1Ordinance Prohibited; Defined; Soliciting Prostitution Pro- 1. Prostitution Section unlawful, any person, prostitution, act It shall as an of for hibited: be Nevada, Lincoln, engage county State of sexual inter- within the course, value, person any money thing with a whom he or or she married, person, he or she not or to solicit whom is married to is not value, intercourse, money thing person with the or have sexual soliciting. so money improving amounts of on Appel establishments. operation lants had ceased as brothels aas result of the new arrest, ordinance. Under threat of the businesses are closed to persons except selling all for the business of alcoholic bever ages. closure, Subsequent against this action the enforce- court, ment of the new ordinance was commenced. In the trial appeal, appellants argued challenged as on preempted 244.345(1), (8);2 269.175, was NRS NRS that, assuming validity ordinance, even it was unconstitutionally applied to them because of its failure to period appellants’ include a time for the amortization of invest- ment. Legality the Ordinance. compre- Appellants contend that the State Nevada has a regarding prostitution pre- statutory which scheme hensive conflicting County allegedly empts ordinance of Lincoln an context, proscribing prostitution. In the instant factual we can- agree. licensing grant board a license for a house A population greater prostitution in counties with a than County 200,000. 244.345(8). population has a NRS 200,000. Additionally, provision, substantially less than “[t]his conjunction 244.345(1), with NRS manifests a when read statutory for houses of outside scheme (8) provides part: 2NRS Every person wishing engage conducting . . . in the business hall, hall, theater, pool dancing bowling alley, billiard or soft-drink estab- lishment, permitted law, gambling game place or device or other amusement, recreation, incorporated city entertainment or outside of an town, incorporated shall: by petition (a) application to the license Make board . . . for a the kind desired. . . . license of (b) application required File the license fee with the *4 collector, present license regular who shall the same to the license board at its next meeting. may petition sheriff, The board refer the to the who shall report upon following regular meeting the the same at of the board. The grant prayed board shall then and there or refuse the license for or enter regulations. unincorpo- other order as is consistent with its ... In governed provisions chapter and cities under the rated towns NRS, 269 of power regu- the license board shall have the exclusive to license and the businesses herein set forth. late 200,000 more, any county having population a or . . . the grant any petitioner purpose shall license board operating license a for the repute any employing a house of ill fame or or other business purpose prostitution. for the female
109 Plankinton, Nye County incorporated cities and towns.” 94 741, 421, 739, (1978). legislature 423 The Nev. 587 has county provided specifically that the board of commissioners license, regulate suppress power or has brothels in unin the 244.345(1)(b), corporated or towns. NRS cities NRS 269.175. Clearly, is no that declaration voters in a small board, county, county may totally a not enact an or prostitution. banning houses holding assert that this court’s Plankinton was permits prostitu- law now the of houses of state populated less counties are
tion and that the
divested of the
holding merely
power
prohibit them. But that
confirmed the
longer
per
fact
houses of
were no
se
nuisances
light
court had
of NRS
as the
otherwise held in
60,
Cunningham
v. Washoe
(1949).
by
political
an action
This is not
a
subdivision to abate a
Plankinton,
740,
Nye County v.
nuisance. Cf. (county unsuccessfully of commissioners P.2d at board sought perse theory). a nuisance to eliminate one brothel under Indeed, county, through the electorate of the the exercise here county by prerogative to of their initiate ordinances initiative referendum, have voted to ban all brothels. That and the elec- power dispute.3 excep- is With torate but one has tion, legislature appears to have reserved the the total ban argued, appropriate briefly Although to discuss we deem it the initiative procedure the of this The framers of Nevada Constitution state. referendum expressly power people initiative and referendum to the the reserved municipality or the state. each powers provided for and referendum in this article are The initiative registered of each voters and each munici- further reserved local, special municipal legislation every pality kind in or as to all county municipality. municipalities or In counties initiative for such may registered equal petitions be instituted a number of voters to 15 percent preceding general voted at the last or more of voters who petitions municipal election. Referendum be instituted or percent or more of such voters. Const, Therefore, legislature, irrespective people § art. power directly might themselves to deal matters which have reserved Erickson, legislature. Hunter v. left to the 393 U.S. otherwise be course, challenge zoning (1969). if owner can restriction Of unreasonable, having “clearly arbitrary and no substantial relation measure is morals, welfare.” or Euclid v. Ambler to Realty Co., (1926). 272 U.S. If the substantive result of a referendum police power, arbitrary capricious, bearing no relation to the then the it so the restriction. voters wish would not save Eastlake v. Forest fact that the City Enterprises, Inc., presently The situation before zoning denigrating depreciating action use the value of us is not one of rather, objective but, initiative and referendum which had as land is an its *5 licensing but demands in counties counties
question to the are allowed. where brothels suppression of brothels is the that “the Appellants contend except government, where the state of state concern exclusive government.” suppression power to local yields expressly its Kelley proposition, v. Clark this cited for in the case But (1942), only court 127 P.2d County, 61 Nev. suppression was one of the most of nuisances that stated government and cities cannot divest the important duties of city regulate power them. The court added that a to all state of with state laws. Id. at not inconsistent ordinances enact could respon- The in that case was 223-24. P.2d at concerning nui- enforcing laws abatement of state sible throughout jurisdiction and had sances history of NRS indicates that the The historically been a matter of local regulation brothels had community recognize standards and mores concern. may community to another and even from time from one differ community governing and that the in the same time to body, here, electorate, adopt, see fit to the local prevailing to meet or then contem repeal ordinances or amend California, Miller porary conditions. Cf. community contemporary (applying standards in (1973) proper community obscenity). that the most It is area affected, adversely, beneficially or have control over the either regulated. reading sought It is not clear from a to be area legislature pre intended to and 269.175 NRS 244.345 empt regulation. Because NRS of brothel the field licensing procedures only 244.345(1)-(7) refers to does not any county, be allowed and because mandate regulation of brothels is a matter of local con we believe cern, legislature deprive did not intend to that our we find completely. power ban brothels counties paragraph argue in the last that the reference (allowing 244.345(1) to NRS 269.175 NRS unincorporated-towns) implicitly over control exclusive boards power prohibit brothels elsewhere. is no that there means purpose scope “whole Certainly, we must look consequences dramatically incidental abolition operations. power profit-making the brothel We believe that reducing question relation to the substantial has measure County upheld. and should be This welfare of morals and issue, proc- as well. See discussion of due substantially the due resolves ess infra. legislature whether the legislative scheme” determine Mirin, occupy Lamb v. the entire field. 90 Nev. intended 329, 332-33, City See Ronnow 526 P.2d of Las (1937). Although legisla- Vegas, *6 field, preempt only may the entire here there ture elect legislative provide appears intent to for of to be a the prohibit popu- counties with a businesses and case, 200,000. exceeding In the instant there is no “clear lation acts,” Cunning- unquestionable indication from 64-65, County, 613, Nev. at 203 at ham v. Washoe 66 P.2d occupy legislation the was intended to entire field. See Bica, (1976). 424 U.S. Nor is v. 351 clear DeCanas implication counties, outlawing larger the of brothels necessarily they legislature intended that be lawful other the new in conflict areas. is the ordinance Neither Const, 4, Here, art. even had the Lincoln laws. Nev. County § of Commissioners and without Board completely prostitution, approval voter banned such ordinance been with the laws in the area. would not have Kelley inconsistent 299, 61 127P.2d Nev. at at 223-24. v. Clark Process. 2. Due prohibition
Appellants contend the of next their “estab deprivation property constitutes with lished businesses” disagree. process law. The fifth out amendment to due provides person that no the States Constitution shall be United process, deprived property private “nor without due shall use, just public compensation.” be taken Const, Accord, 1, Thus, art. V. Nev. Const. U.S. amend. § process was determined whether due afforded here it must be taking the ordinance constituted a for which com and whether pensation must be rendered. they explicate what do not believe is due “concepts princi
except a brief reference to fairness and ples equity” that there must at least be a reasonable time their for the amortization of investment. In order to allowed satisfy reasonably process, a be statute must related to a legitimate governmental interest. Ottenheimer v. Real Estate 1284, 338, 341-42, Division, (1975). 535 1285 instance, protection the ordinance is directed the morals, safety and the welfare of The nature of businesses, policing regu coupled with the burden county, limiting upon are alone sufficientreasons for lation or, here, complete pro as of such businesses the number Lovell, 111, scription v. See Oueilhe 93 Nev. of the businesses. (1977). is whether this ordinance constitutes consideration The next regulation actually taking property. A business which
a prohibits when, not constitute a business does as such here, promotes regulation welfare or community police and thus is a valid exercise of morals of Transportation City, Co. v. New York powers.4 Penn Central 104, (1978); Hempstead, Goldblatt v. 123-25 438 U.S. Kansas, 623, Mugler (1962); v. 123 U.S. 592-93 U.S. validly exercised, long police power (1887). As 668-69 prohibited. previously businesses be lawful Penn even City, Transportation York Co. New 438 U.S. at Central Sebastian, 126-27; (1915); Hadacheck Kentucky, Bonding Stephens v. Association S.W.2d Lovell, 1976). (Ky. Oueilhe v. See ordinance, Here, although having signi P.2d 1348 ventures, impact upon appellants’ ficantly economic adverse deprive appellants prop reasonable uses of of all does erty. *7 history [prostitution] been a time in the “There has never operator enterprises when the or investor in this state occupational City risks.” Primm free from such v. has been Reno, 252 P.2d In the instant case, expectation governmental appellants’ to be free of inter- operations light was not in their business reasonable in ference history prostitution industry and nature of the arbitrary The ordinance enacted here was not so Nevada. right appellants’ process, capricious to violate to due see Inc., City Enterprises, City Eastlake Forest Spanish Speaking Organization (1976); Southern Alameda California, City, (9th City 1970), 424 F.2d Union Cir. to a or invasion does not amount for which com- pensation is due. valid,
Finally, appellants if contend that the ordinance is period allowed must at least be a for them to amortize authority fail to cite relevant investment. proposition and we have found none. for this the order of the lower court. We affirm Thompson J., JJ., Batjer, Mowbray, C. concur. J., concurring: Gunderson, in the result. I concur discussion, supra. see note
4For additional