TINY B., INC. v. City of Newport Beach

The sine qua non of a life in the law is a willingness to devote a great deal of thought to issues which seldom concern nonlawyers. In this case, for example, we discuss appropriate ways in which to distinguish a theater from a restaurant—something with which the general public seems to have absolutely no difficulty, but which regularly defies the best efforts of courts and counsel.

This is a dispute over the extent to which the City of Newport Beach may constitutionally regulate the operation of the Mermaid, an adult entertainment establishment owned and operated by Tily B., Inc., of which An and Olivia Nguyen are the sole shareholders (Mermaid).

The Mermaid appeals first from a judgment denying its petitions for writs of mandate to compel the city to issue use and entertainment permits. The city appeals from a judgment holding unconstitutional an ordinance prohibiting nude dancing (the “pasties and G-string” ordinance) and granting a writ of mandate directing it to repeal the ordinance. The Mermaid reconfigured its club to meet city requirements and obtained the needed permits, later revoked by the city, and now it also appeals from a judgment that denied its petition…