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Discopolus, LLC v. City of Reno

United States District Court, D. Nevada

December 13, 2017

DISCOPOLUS LLC, dba the WILD ORCHID, FANTASY GIRLS, LLC, and DIAMOND DOLLS OF NEVADA, LLC dba the SPICE HOUSE, DANCER JT, and SPARKLE LEILANI TAYLOR on behalf of herself and all similarly situated erotic dancers, Plaintiffs,
v.
CITY OF RENO and MICHAEL CHAUMP, in his official capacity as Business Relations Manager of Community Development and Business Licenses for the CITY OF RENO and DOES 1 through 10, inclusive, Defendants.

         Pls.' Motion for Temporary Injunction - ECF No. 11; Pls.' Motion for Preliminary Injunction - ECF No. 12; Defs.' Motion to Dismiss - ECF No. 19

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Plaintiffs Discopolus LLC and Diamond Dolls of Nevada (collectively, the “Strip Clubs”), as well as Dancer JT (“JT”) and Sparkle Leilani Taylor (collectively, the “Dancers”), initiate this action to challenge the City of Reno's licensing requirements affecting strippers. Plaintiffs have filed a motion for a temporary restraining order (ECF No. 11) and motion for preliminary injunction (ECF No. 12) (collectively, “PI Motion”). In response, Defendants City of Reno and Michael Chaump (collectively, the “City”) have filed a motion to dismiss. (ECF No. 19.) The Court has reviewed the City's response to Plaintiffs' PI Motion (ECF No. 16) and Plaintiffs' reply (ECF No. 20). The Court also has reviewed Plaintiffs' response to the City's motion to dismiss (ECF No. 22) and the City's reply (ECF No. 24). For the reasons described below, the Court grants in part and denies in part the City's motion to dismiss. The Court also denies Plaintiffs' PI Motion.

         II. BACKGROUND

         The Dancers and Strip Clubs allege that the City has violated their federal constitutional rights by requiring strippers (including the Dancers) to obtain licenses to strip and by selectively enforcing this requirement against women but not men.[1]

         Strippers in the City are required to obtain licenses that authorize them to strip (“Work Cards”) because they qualify as “adult interactive cabaret performers” under the City's municipal code (“Reno Municipal Code” or “RMC”), according to Plaintiffs. “Adult interactive cabaret performer” is a term of art that appears to encompass all strippers:

Adult interactive cabaret performer means any person male or female who is an employee or independent contractor of an adult interactive cabaret and who, with or without any compensation or other form of consideration, performs as a sexually-oriented dancer, exotic dancer, stripper or similar dancer, actor, model, entertainer or worker whose performance on a regular and substantial basis emphasizes exposure of and focus on the adult interactive cabaret performer's specified anatomical areas and whose performance is designed specifically to arouse sexual passions. Adult interactive cabaret performer includes a person who, while performing or conducting personal or individual grooming, maintenance or hospitality services such as barber, cosmetic, food or beverage service or personal property maintenance (such as car wash or laundry), nevertheless emphasizes exposure of and focus on the person's specified anatomical areas. Adult interactive cabaret performer includes a patron of an adult interactive cabaret where the patron is performing for other patrons as part of any publicized or promoted event that encourages adult interactive cabaret performance by such patrons such as an “amateur night” or a “tryout night”.

RMC § 5.06.011(a); see also RMC § 8.21.010(a) (substantially similar definition).[2]

         The definition of “adult interactive cabaret performer” incorporates two additional terms of art: “adult interactive cabaret” and “specified anatomical areas.” An adult interactive cabaret is essentially a strip club:

Adult interactive cabaret means any fixed place of business which offers to patrons on a regular basis or as a substantial part of the premises activity, the opportunity to view adult interactive cabaret performers whose attire, costume, clothing or lack thereof exposes specified anatomical areas whose performance emphasizes exposure of and focus on specified anatomical areas and whose performance or exposure of specified anatomical areas while providing services is designed specifically to arouse sexual passions, all of which is typically associated with allowing the performer to solicit from patrons present anything of value such as drinks, lap dances, table dances, tips or other gratuities, bookings dates or other compensation, whether monetary or otherwise.

RMC § 5.06.011(b); see also RMC § 8.21.010(b) (substantially similar definition). “Specified anatomical areas” are defined as “human genitals or pubic region; buttock or anus; or female breast below a point immediately above the top of the areola.” RMC § 5.06.011(e); see also RMC § 8.21.010(f) (identical definition).

         Plaintiffs allege that all strippers in the City, male and female, qualify as “adult interactive cabaret performers” because they all “wear outfits that expose their buttocks but not their anus, dance topless on stage and in the audience, dance on or near the patrons, and solicit tips, drinks and/or other gratuities from the patrons for their performances.” (ECF No. 9 at 9.) As such, Plaintiffs argue, they should all be required to obtain Work Cards under RMC § 8.21.050(a), which states that “[e]ach adult interactive cabaret performer performing in an adult interactive cabaret business shall obtain, prior to the commencement of work[, ] a work card and have his/her fingerprints and photograph taken through the chief of police.” Yet the City only requires female strippers to obtain Work Cards, Plaintiffs allege. “[T]here is not a single dancer work card issued to any one of the hundreds of male dancers who regularly perform in [the City], but over a thousand female dancers have complied with the [City's] requirement that they obtain such work cards, ” according to Plaintiffs. (ECF No. 9 at 9.)

         The process for obtaining Work Cards is described in detail in an affidavit submitted by the City. (ECF No. 16-1.) The first step for strippers seeking a Work Card is to produce a City business license and valid government-issued identification to the Reno Police Department (“RPD”). (Id. at 2.) RPD hands the applicant a work card application, civil applicant waiver, and child support information, then searches for outstanding criminal warrants while the applicant completes the forms. (Id. at 3.) If the applicant is not arrested on the spot for outstanding warrants, then the applicant pays RPD $100.25 “to process the application[] and perform a statewide and nationwide criminal background check.” (Id.) RPD then photographs the applicant, takes fingerprints, and issues a Work Card to the applicant. (Id. 3-4.) The Work Card remains valid for five years. (Id.) The affidavit does not specify whether the renewal process is the same as the initial licensing process.

         The FAC asserts claims for violation of the equal protection clause of the Fourteenth Amendment and the free speech clause of the First Amendment as well as claims that the licensing requirements are unconstitutionally vague and overbroad.

         III. MOTION TO DISMISS (ECF No. 19)

         A. Fed.R.Civ.P. 12(b)(1) Legal Standard

         Rule 12(b)(1) of the Federal Rules of Civil Procedure allows defendants to seek dismissal of a claim or action for a lack of subject matter jurisdiction. Dismissal under Rule 12(b)(1) “is appropriate if the complaint, considered in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008). Although the defendant is the moving party in a motion to dismiss brought under Rule 12(b)(1), the plaintiff is the party invoking the court's jurisdiction. As a result, the plaintiff bears the burden of proving that the case is properly in federal court. In re Ford Motor Co./Citibank (S.D.), N.A., Cardholder Rebate Program Litig., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

         B. Fed.R.Civ.P. 12(b)(6) Legal Standard

         A court may dismiss a plaintiffs complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pleaded complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly,550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombl ...


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