Princess Sea Industries v. STATE, CLARK CTY.

victim is a child who difficult, impossible, to obtain if the if not dangerous weapon guna or other been killed with has not severely —but beaten, instant case. as in the remaining to be without merit. issues find the We degree affirmed. murder is for first conviction Springer, J., Batjer, Mowbray, and Gunderson, C. JJ., concur. INDUSTRIES, INC., SEA

PRINCESS MEAD PUB LISHING, INC., PANARAMA; d/b/a LAS VEGAS COMPOSITION, INC., and GALAXY d/b/a LAS MIRROR, Appellants, VEGAS v. STATE OF NEVADA, COUNTY, CLARK a Political Subdivision Nevada, the State BOARD OF CLARK COMMISSIONERS, COUNTY BENT, ROBERT H. BROAD PETITTI, DONDERO, JACK R. THALIA J.R. RONZONE, CORTEZ, BOWLER, MANUEL SAMUEL Constituting CANTER, DAVID the Members of MILLER, Board; ROBERT Attorney, Said District BRYAN, County, Nevada, RICHARD Clark Attorney General, Nevada, State and JOHN McCARTHY, County, Nevada, Sheriff of Clark Respondents.

No. 12252 October 635 P.2d 281 Smith, Cremen, Vegas, Appellant Maurer & Las for Princess Industries, Inc.; Bernstein, Vegas, Edward Appel- Sea Las for Publishing, Galaxy Composition, Inc. Mead lants Inc. General, Bryan, Attorney City, Richard Carson and Josh Landish, General, Deputy Attorney Vegas, Respond- Las for Miller, Nevada; Attorney, ent State County, Robert District Clark Edwards, Deputy Attorney, and S. Mahlon District Respondents Vegas, County, County Clark Las Board of Commissioners, McCarthy. and Sheriff John

OPINION Court, Mowbray,

By the J.: below, plaintiffs sought Appellants, Assembly to have Bill Stats., unconstitutional, declared 1979Nev. and to obtain against injunction provisions. enforcement of its The dis- requested. judgment. the relief We affirm denied trict court

THE FACTS appellants legal Nye include the County owner of a brothel, newspaper publishing and two concerns which have willing publish published concerning and are to advertisements legislation question purports prohibit brothel. The to any prostitution: “Anywhere any house of county, city prostitution prohibited by town where or is local licensing prostitution or where the of a ordinance house of is by prohibited state statute.” The enactment also undertakes to “Any person, company, punish: corporation association or owner, knowingly any operator, agent employee allows who prostitution, anyone acting on of a house behalf of person, place advertise a to house of in his Appellants challenged legislative pro- have business....” these visions, contending they publish that advertisements to wish speech protected by commercial the First are Amendment to United States Constitution. THE OF LEGISLATION THE CONSTITUTIONALITY 201.440, amended, prohibit variety do NRS 201.430 i.e., containing speech, advertisements informa- commercial concerning prostitution, in certain areas within houses tion Nevada.1 the State of This Court’s task is to determine whether legislative proscriptions quoted must be declared uncon- stitutional, pursuant principles to heretofore articulated Supreme United States Court. concerning purely Expression commercial transactions protection. the ambit of the First fall within Amendment’s Assn., State Bar v. Ohio Ohralik Still, “ recognizes the United States Court ‘com- speech proposing distinction between a commercial monsense’ transaction, traditionally subject which occurs in an area regulation, speech.” government and other varieties of Id. at Accordingly, only, is 455-56. afforded “a protection measure of commensurate with its subordi- limited nate thermore, position in the scale of First Amendment values.” Fur- might impermissible “modes of be expression” permitted. realm of non-commercial are Id. repeatedly, legislature this Court has said an “act of the As presumed to be constitutional and should be so declared unless clearly appears prin- in contravention of constitutional Court, v. ciples.” State ex rel. Tidvall District 91 Nev. doubt, (1975). every possible pre- P.2d 456 In cases of 539 sumption and intendment will be made in favor of constitu- tionality. only will interfere in “Courts cases of clear and Id., rights.” unquestioned violation of fundamental 91 Nev. at 526-527, 460; Anthony Nevada, 539 P.2d at see also v. State of 337, 341, (1978); County P.2d 939 94 Nev. Clark, 580 Damus v. 512, 516, (1977); City 93 Nev. 569 P.2d 933 of Las Ackerman, 493, 499, Vegas (1969). v. Nev. 457 85 P.2d 525 us, then, Assembly clearly before is whether The issue Bill 141 principles contravenes constitutional heretofore established as speech. to commercial Virginia, (1975), Bigelow distinctly v. 421 U.S. 809 is Still, Supreme Court case closest to the instant one on its facts. readily distinguishable. precedent Bigelow involved an advertising abortions, i.e., offering legal to bar of a clinic effort government service over which a state a medical rowly has but nar- See, Baird, power. e.g., v. circumscribed Bellotti specific 201.430(2) sought pro details certain information to be 1NRS public, i.e.: from distribution scribed publication address, any display, in handbill or of the Inclusion loca- telephone number of a house of or or of identi- tion transportation house, of a means of to such a or fication information, telling how to obtain directions prima constitutes advertising purposes facie evidence of of this section. Wulff, (1976); Singleton (1976); 428 U.S. 106 Con- U.S. Menillo, Bolton, (1975); 423 U.S. 9 Doe v. necticut Wade, Moreover, (1973). (1973); Roe v. 410 U.S. 113 179 Bigelow high explicitly deciding, court that it was stated not permits precise extent to which the First Amendment “the that is related to activities the State regulate prohibit.” may legitimately or even 421 U.S. at 825. activity is an which the State of

Prostitution Nevada regulate prohibit entirely. either to See NRS choose 244.345; Plankinton, Nye County also see 94 Nev. Thus, time, (1978). guidance at this absent P.2d further Court, Supreme appears necessary neither from the nor wise Bigelow to construe either for this Court other commercial holdings providing protection constitutional prostitution. St. Pierre v. 92 Nev. Cf. (1976). 554 P.2d 1126 sum, legislative question clearly enactment in In does not principles constitutional as thus far contravene articulated Supreme States the United Court. Other constitutional chal- lenges require are unmeritorious and no discussion. J., J., J.,2

Gunderson, Batjer, Beko, C. D. con- cur. J., concurring:

Manoukian, However, I believe that in the result. those I concur sufficiently important majority First Amend- fail to address appeal. This Court has not had occasion to of this ment issue question holding “pure” Amendment since our decide Foley, light 350 P.2d 721 76 Nev. Viale v. holdings bearing many United States Court recent question, it is incumbent on this Court to re-exam- vital on ine and dispositive fully First Amendment when it is discuss the at hand. the case presented question and the sole con- primary issue brethren, my 201.430 by is whether NRS violates the fronted substantially Amendments because it and Fourteenth public any- advertising by in a brothel certain areas and bans prostitution illegal. where is in counties Additional where our consideration are: whether NRS 201.430 raised for issues law; taking property without due of of constitutes designated 2The Governor Beko, Judge Honorable William P. of Court, the Fifth Judicial place District to sit in the of The Honorable Thompson, Const., Gordon Justice. Nev. art. 4.§ 201.430 are unconsti- proscriptions of NRS whether

and tutionally vague and overbroad. Industries, Inc., corporation, (here- a Nevada Sea Princess Sea) operator is the owner and Princess of “The inafter Nevada, Nye County, in Ranch” brothel situated Chicken Vegas, approximately 65 miles northwest of Las located in County. appears complied fully The brothel have Clark regulatory requirements applicable licensing by and to it all County. Inc., Nye Publishing, in its location Mead reason of Panarama, Vegas (hereinafter Mead) Galaxy Las and d/b/a Composition, Inc., Mirror, Vegas (hereinafter d/b/a Las Gal- business, newspaper axy) in the and there is are evidence that past published advertising Galaxy pros- in the has for houses of titution, including Princess Sea. The distribution and content papers particularly industry focus on the tourist of of the Clark 250,000 County population County. Clark has a of more than therefore, prostitution according people; is unlawful to state statute, 244.345(8). Additionally, County NRS Clark ordi- proscribes prostitution purposes nance solicitation for prostitution. The record reflects a substantial amount of business of southern Nevada brothels is derived the County. from Clark legislature Assembly the state enacted Bill In No. amending 201.430 and NRS 201.440. NRS The amendment prostitution to areas of the limits permitted prostitution proscribes where state entirely city any county, prostitution pro- or town where is Thereafter, by local ordinance or state statute.1 hibited sought declaratory injunctive tiff-appellants plain relief amended statute. These three from enforcement cases injunction hearing and a for were consolidated was held. The injunctive request denied the for court relief and declared trial legislation constitutional. part: provides in 201.430 1NRS owner, agent employee any operator, or of a 1. It is unlawful anyone acting any per- prostitution, on behalf of such or house of son, any prostitution: house of to advertise theater, town, any city any public (a) streets of or on highway; any public or on any county, city prostitution Anywhere (b) or town where is licensing prohibited where the of a house local ordinance or prohibited by prostitution state statute. any display, publication handbill or of the Inclusion address, telephone number of a house of location or house, transportation of a means of to such a or of identification information, telling how to obtain constitutes directions prima purposes for the evidence of this section. facie

539 Rights First Amendment advertising regulation Appellants that the contend scheme of rights violates amended statutes their First Amendment to Virginia a of commercial information.” provide “free flow Council, Pharmacy Virginia Board v. Consumer 425 U.S. Although (1976). Princess Sea is identified as the source of 764 advertisement, Galaxy past Mead as and would-be ads, significant perceive carriers of the no difference future

among protection. them in terms of First Amendment If the Amendment, qualifies protection speech under the First as through applicable states due to the made clause (see Bigelow Virginia, v. Fourteenth Amendment 421 U.S. (1975); (1939)), Schneider v. U.S. 811 308 160 communication, source, protection is afforded to its Virginia Pharmacy recipients. Virginia Board v. Con to Council, U.S. 425 at 756. sumer holdings It should be recent Court have noted brought speech protective commercial under the shield of the Central Hudson Gas v. First Amendment. Public Service N.Y., (1980) (regulated U.S. Com’n of 447 100S.Ct. 2343 advertising); promotional Bigelow Virginia, 421 utilities’ Virginia Pharmacy (abortion); Virginia Board 809 U.S. Council, (prescription drug 425 prices); U.S. 748 Consumer Arizona, (1977) (lawyer v. State Bar of 433 U.S. 350 Bates Contra, fees). City Alexandria, Breard v. Chrestensen, (1951); Valentine 316 U.S. 52 U.S. However, recognized Court Ohralik v. Ohio Bar State Association, (1978), my cursorily and as brethren out, speech parity point is not afforded a with constitutionally protected speech: other discarded the

We have not ‘common-sense’ distinction proposing transaction, speech a commercial between traditionally subject govern- area which occurs regulation, speech. ment and other require varieties To parity protection a of constitutional for commercial speech and noncommercial alike could invite dilu- tion, simply by leveling process, of the force of the guarantee respect Amendment’s to the latter kind of subject speech. Rather than the First Amendment to such devitalization, a speech we instead have afforded commercial protection, a limited measure of commensurate position with its subordinate in the scale of First Amend- values, allowing ment while modes of might impermissible in the realm noncommercial expression. U.S. at 455-56. contention, rejects Contrary appellants’ Ohralikexplicitly judicial compelling interest level of review and state instructs judi- reviewing appropriate court the level of

that the cial, “lower[ ] examining scrutiny,” id. at when commercial adver- so, By doing holding the Court reaffirmed its tisement. balancing of the interests involved should Bigelow that a undertaken, “assessing the First Amendment interest at stake against allegedly weighing by it the interest served Bigelow Virginia, regulation.” 421 U.S. at 826. the by majority, Bigelow respects is in certain simi- the As noted us, although there are fundamental fac- case before to the lar Bigelow, Virginia newspaper editor was distinctions. tual publishing an advertisement for a New York prosecuted for Virginia newspaper. Virginia A clinic in a statute abortion advertising of such services a misdemeanor. Bal- made the ancing involved, competing interests the the Court publisher’s violative of the First Amend- the statute declared proposed rights. Appellants that assert the advertisement ment case, Bigelow, conveyed like the advertisement in this potential interest and value to a diverse “information 822, audience,” “general curiosity about, to those with a id. at subject the law genuine interest in the matter or of another id., including development,” those “readers seek- and its state ing Prostitution, abortion, in their own state. Id. like reform” Nevertheless, unnewsworthy. totally Id. the advertise- not pertain prostitution does not to fundamental constitu- ment abortion, the interests as does advertisement see Roe tional Bolton, Wade, (1973); 410 U.S. 113 Doe 410 U.S. 179 Furthermore, contrary Bigelow, appellants’ (1973). coincide interests do not with constitutional inter- Amendment public. general the ests of present Bigelow case further differs from in that no not, has been shown to exist. interstate Nevada is exercising guise police powers, internal bar[ring] “under disseminating of another state from a citizen information activity legal Bigelow that is about an that State.” v. Vir- ginia, entirely 421 U.S. at NRS 824-25.2 201.430 deals with regulation. intrastate are question assuming advertisements that

Even noteworthy although 2It is New York at the time of the advertise Bigelow profitmaking agencies, ments in allowed abortion referral it was long legislation proscribing type not before it enacted of commercial 1971, adopted July New York laws c. 725 effective advertisement. amended Public Health Law by c. 17 now § Laws codified as Art. 45 of the State’s (Supp. 1974-75). Amendment, protected the First and that sub- expressions interests in the free flow of com- individual and societal stantial present, these interests to an are relate information mercial activity protec- been afforded minimal constitutional which has may completely preclude. See NRS which the state tion 201.295, 202.450, Thus, seq. seq. and NRS et the state’s et support particularly implicated in of this statute are interests strong. in State ex rel. List v. AAA Auto As this Court stated 483, 486, (1970):

Leasing, Nev. P.2d police power, legislature may regulate Within its promote affairs in order to and business commercial health, safety, general morals and welfare of its citizens injurious protect citizens from activities. Viale v. and to Foley, Nev. 350 P.2d 721 Pursuant to legislature may regulate legitimate power, an otherwise which, improperly, if conducted is detrimental to business may prohibit activity public, business which is essentially injurious public welfare, provided prohibited by legislation is not Constitutions of the (Emphasis or Nevada. United States added.) [Citations omitted.] States, George (9th 1952). v. 196F.2d United 445 Cir. also See general protecting in to the state’s interest the In addition transactions, in Ohralik v. Ohio State Bar public Association, 460, police powers, U.S. and incidental to its 436 special maintaining atmosphere in has a interest of state the decency morals, counteracting and therefore in the and sound prostitution may have on the effect welfare. deleterious Board, 364, 372-73, rel. Grimes v. 53 Nev. 1 P.2d ex See State Moreover, 570, (1930).3 the Court has left little 572 validity probable the statute such as the one in as to doubt newspaper when it stated: “We have no doubt that a question constitutionally publish pro- be forbidden to a want ad would soliciting prostitutes.” Pittsburgh narcotics or posing a sale of Comm’n, 376, 413 U.S. v. Human Relations 388 Co. Press (1973). legislative findings presume express we will the exist absence of 3In the support legislative judgment. Foley, the v. that would Viale of facts ence 154-55, Nevertheless, at 724. here I note some of our 350 P.2d Nev. at 76 consequences purposes reflecting of solicitation for the adverse cases 250, prostitution. Mayes v. 95 Nev. 591 P.2d 250 frequently by prostitutes having (thefts (1979) after committed sexual Horner, 312, victims); Sheriff v. 96 Nev. P.2d 608 1106 intercourse (1980) Hilliard, earnings prostitute); (living of a Sheriff v. 96 Nev. from Comment, (1980) (pandering); Preying 345, see also on P.2d 1111 608 Sexploitation Pornography Playgrounds, in the Children Prostitu (1978). tion, Pepperdine L. Rev. 809 5 against appellants’ inter- must be balanced interest This state advertising the brothel. The trial court found that the in est entirely activity.” assuming lawful Even “not an brothel legal licensing of such a house is under the maintenance the 244.3454as manifested the continued inclu- of NRS scheme 8,5 legality is confined to certain coun- of subsection sion ties, including Nye. Relying legality, appellants on this cite Council, Pharmacy Virginia Virginia Board v. Consumer “completely suppress which held that a state not U.S. concededly truthful information dissemination about activity,” entirely id. at even when that informa- lawful categorized speech. be as commercial could tion however, case, perceive advertisement as instant In the transaction, simply a commercial more than no proposing advertising which contains factual markedly from different Virginia, Bigelow “public interest.” of clear material Indeed, might equated speech with a at issue at 822. U.S. implicit patronage in a trade name. See mere solicitation 887, 895, Rogers, n. 10 99 S.Ct. Friedman (1979). regulation is a mere Here, respondents that the contend time, restriction, I find a contention which manner place and however, discussed; need not be This issue persuasive. rather expressly provided legislature has fact that the view license, regulate sup- power to have the governments local unincorporated towns. NRS cities press brothels McGimsey, 269.175; 96 Nev. 244.345(l)(b), see Kuban Nothing precludes the state P.2d concerning proscribing deleterious completely from illegal. County, prostitution is In addi- where activity in Clark explicate, implicit majority tion, although does not part: reads in 4NRS 244.345 Every person, firm, persons corpo- natural association of wishing engage conducting ration in the business of a billiard or hall, hall, pool dancing bowling alley, theater, softdrink estab- lishment, gambling game law, permitted by place or device or other amusement, recreation, incorpo- of entertainment or outside of an town, city incorporated rated or must: (a) application county ... Make to the license board of the in, engaged county which the business is to be for a license of the kind desired. . . . (b) application required File that with the license fee with the county license collector. . . . 244.345(8) provides: 5NRS any county having population 250,000 more, In a 8. of the grant any petitioner pur- license board shall not license to a for the operating pose repute of a house of ill fame or other business any person employing purpose prostitution. for the of holding regulation is the fact that the directly before us governmental the plain advances interest asserted. It is that appellant loss, pecuniary will each suffer absent use of the Yet, printed media. this does not translate into a First Amend- subject right regulation. Moreover, ment which is not to Prin- permitted so, Sea is itself free to cess advertise where to do utilizing by, those manners or means pre- authorized or not by, challenged legislation. cluded the may Princess Sea also through to advertise elect the media outside the State of Nevada. legislature right, The has the responsibility, indeed the to community

determine standards and mores and diverse may social-economic circumstances differ community from one another, adopt, here, and it regulation to see fit to as a to prevailing California, meet conditions. Miller v. 413 U.S. Cf. (1973) (applying contemporary community standards in obscenity). The protection areas measure of constitutional expression which certain depends great part entitled upon speeches. the content of the Central Hudson v.Gas Pub- N.Y., lic Service Com’n of 100 S.Ct. at 2350. little, speech any, protection. at hand is due if It involves entertainment, not or ideas.6 information balancing appel- interests with the state’s interests of owner, public, publishers, I brothel believe lant Court, suppress type before this can no state presented. Although truthful the information how matter speech affords commercial “a limited Amendment meas- protection,” equally it is true that “the State ure of does not regulate activity power to deemed harmful lose component activity.” is a of that whenever to the Assoc., Here, Bar U.S. at v. Ohio State 456. Ohralik agree challenge legislation fails when balanced legitimate regulatory interests. the state’s Due Process statutory Appellants’ second contention is that the scheme taking property constitutes a regulating without brethren, my law. This issue is not discussed due apparently consider it without merit. Whether relief under who First, requires two-part analysis. theory a is warranted right property determined whether advertise is a must be interest, second, whether the of such advertise- “taking.” constitutes ment 6Moreover, preserved of the some advertisements in the record on potential enticing persons

appeal years age have the under 21 to visit prostitutes employed become or 201.360(l)(g). service,” contravention of NRS 201.300 and noteworthy Also is the fact that the ads refer to “out call representation misleading. which I consider to be

544 business, legitimate Advertising is a United Inter- itself 801, (Conn. 1957), Spellacy,

change, v. 136A.2d 806 Inc. sub- Advertising regulation. Central Outdoor ject reasonable Co. to 189, Evendale, (Ohio 1954). N.E.2d 194 It is also 124 well v. engage any right the to in lawful business or that occu- settled right to with it the concomitant advertise. Merit pation carries Life, Div. of Necessaries of 65 v. Director of N.E.2d Co. Oil Furthermore, right 529, 1946). (Mass. the to advertise serv- 530 property right, products is a valuable the denial of ices taking process may property a of without due constitute which Brock, Serve Yourself Stations Ass’n v. law. Gasoline 249 of Pontiac, Levy (1952); v. 49 N.W.2d 548 P.2d (1951). Next, determining application the statute’s whether would taking process (U.S. without due Const. Amend. constitute V.; Const, 8), art. Nev. an examination of accord the § regulation propri must be undertaken to determine enacted ety legislature’s powers police pro the for the an exercise of as health, morals, public safety, general and of welfare. tection Life, Director of of Co. v. Necessaries of Merit Oil Div. My aspect appellants’ at 531. examination of this of N.E.2d process rights, greatly due is denial of their claimed influenced generally presumed that are by fact statutes to be valid and appellants the burden of to demonstrate their it is unconstitu 403, 405, tionality. Wilmeth 96 Nev. 610 P.2d Furthermore, if, here, a statute was enacted inci police powers, presumed to the state’s “it is that dental promote legislature intended to welfare.” Viale Here, Foley, 76 Nev. at 350 P.2d at 722. the nature of the advertising, coupled which is the source of the business explicated my preceding and liabilities encumbrances dis regarding appellants’ First Amendment claims cussion are justify advertising proscription regu and sufficient alone lation. legislation determined have that has a Because rational enactment, supporting its I must now whether ask basis proscription taking constitutes an unwarranted property right. leading Nevada case in this area Foley, 76 Nev. 350 P.2d wherein we held Viale subject advertising legislative hotel motel rates is prohi- regulation. Vialeindicates when there is no absolute against advertising, “the all forms statute must bition regulatory as restrictive of the manner and construed advertising prohibition . . . rather than absolute means kind of against involves no absolute [which] property right due without of law.” Id. denial at 152-53, merely at NRS 201.430 restricts 350 P.2d 722-23. prostitu- where houses of to those counties brothel advertising only prohibits be licensed and tion are forbidden houses counties those where statute, County. as Clark In other areas Nevada state unregu- remain and contents of brothel forms all Viale, Thus, statutory limitation similar lated. challenged merely regulatory restrictive and of adver- statute prop- my opinion, no denial of a tising. it involves absolute In law. erty right without due Kuban, prohibited, see lawful can be previously business If existing can be business limited commercial police power, for rea- to the state’s precluded incidental Kuban, Here, although chal- I have indicated. sons “significantly impact legislation has a adverse economic lenged id., ventures,” at 605 P.2d appellants’ at I upon unreasonably deprive appellants not it does believe constitutionally protected property rights. Kuban, See id. overcoming Appellants to meet their burden of have failed conclude, validity. presumption of I as does the statute’s the majority, merit. that this claim lacks Vagueness and Overbreadth

3. Appellants contend that the words the statute are also gives warning proscribed language of the vague. sufficient 737; Nev. at 610 P.2d at Roth v. Wilmeth v. acts. States, United addition, appellants challenge the statute under the “over- the First doctrine derived from and Fourteenth breadth” course, majority already has determined Of Amendments. Galaxy’s is not violative of Mead’s NRS 201.430 addition, rights. In Court has stated Amendment analysis applies justification for the overbreadth “the that weakly, all, ordinary context. . . .” at commercial if also, Arizona, 433 U.S. at 380. See Ohra- Bar v. State Bates Assn., Bar U.S. at n. Because it State v. Ohio lik remains distinguish non- between commercial and relevant purposes applying the overbreadth doctrine, particularly on at the facts of this see Bates application. case, no the overbreadth doctrine has I believe that majority that the claim is without merit. agree with the

Case Details

Case Name: Princess Sea Industries v. STATE, CLARK CTY.

Court Name: Nevada Supreme Court

Date Published: Oct 28, 1981

Citation: 635 P.2d 281

Docket Number: 12252

Court Abbreviation: Nev.