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Baby Tam & Co. v. City of Las Vegas

September 10, 1998

BABY TAM & CO., INC., A NEVADA CORPORATION, PLAINTIFF-APPELLANT,
v.
CITY OF LAS VEGAS, DEFENDANT-APPELLEE.



D.C. No. CV-97-01522-PMP

Before: Stephen Reinhardt, John T. Noonan and David R. Thompson, Circuit Judges.

The opinion of the court was delivered by: Thompson, Circuit Judge

FOR PUBLICATION

Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding

Argued and Submitted

July 13, 1998--San Francisco, California

Opinion by Judge Thompson

SUMMARY

Baby Tam & Co., Inc. ("Baby Tam") sought, and was denied, a Las Vegas business license to operate an adult book-store. It sued the City of Las Vegas ("City") under 42 U.S.C. S 1983 seeking a permanent injunction enjoining the City from enforcing the licensing ordinance. Baby Tam alleged that the licensing scheme constituted an unconstitutional prior restraint and suppression of speech in violation of the First and Fourteenth Amendments.

The district court denied Baby Tam's application for a pre-liminary injunction. Baby Tam appeals that denial. We have jurisdiction under 28 U.S.C. S 1292(a)(1). Because the ordinance fails to provide for prompt judicial review of a license denial, as required by Freedman v. Maryland, 380 U.S. 51, 58 (1965) and FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990) (plurality opinion), the ordinance on its face is a prior restraint of speech which violates the First and Fourteenth Amendments. Accordingly, we reverse the district court's denial of Baby Tam's application for a preliminary injunction. Because our resolution of this issue is determinative of the litigation, we remand with instructions to the district court to enter a permanent injunction enjoining enforcement of the ordinance in its present form.

FACTS

Baby Tam operates its business under the name "Hot Stuff." Among other items, the store sells sexual novelties, adult videos, general videos, T-shirts, and gag gifts. In January of 1997, Baby Tam sought a business license for Hot Stuff from the City of Las Vegas. In Las Vegas, a business must obtain a license before beginning operations. Las Vegas, Nev. Municipal Code ("L.V.M.C.") S 6.02.060 (1996).

Baby Tam proposed to operate its business at 5100 W. Charleston Boulevard in the City of Las Vegas. This location is within the City's C-1 zone. That zone allows the presence of various commercial establishments, but not adult bookstores. L.V.M.C. S 19.74.020(A) (1992). Adult bookstores are permitted in other zones in the City.

Under L.V.M.C. S 19.74.020(A), an "adult bookstore" is defined as an establishment "having at least fifty-one percent of its stock in trade books, film, magazines, and other periodicals which are distinguished or characterized by an emphasis on depicting ...


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