Talk of Town v. Department of Finance & Business Services ex rel. City of Las Vegas

Opinion by Judge O’SCANNLAIN; Dissent by Judge CANBY

OPINION

We must decide whether the First Amendment is implicated by the suspension of an establishment’s erotic dancing license for violations of a city’s alcohol licensing laws.

I

In January and early February 1998, officers of the City of Las Vegas’ Business License Department conducted some six overt and covert site investigations at Talk of the Town (“TOT”), a business licensed to present erotic dancing. 1 During the course of these investigations, inspectors themselves were allowed to bring onto the premises and consume alcoholic beverages, and witnessed other patrons doing the same, even though TOT did not possess a valid liquor license. On several occasions, upon inquiring of TOT employees about the availability of alcohol, the investigating officers were directed to a nearby liquor store. 2 On February 6, 1998, TOT was issued a “Notice to Cease & Desist.” The notice informed TOT that it was in violation of Las Vegas Municipal Code (“LVMC”) § 6.50.170, which forbids the sale or consumption of alcoholic beverages in any establishment lacking a valid alcoholic beverage license.

On March 10, 1998, the Las Vegas…

dissenting.

I respectfully dissent from the majority opinion because of a narrow but important point on which we differ. The majority relies on Arcara v. Cloud Books, Inc., 478 U.S. 697 , 106 S.Ct. 3172 , 92 L.Ed.2d 568 (1986), in which the Supreme Court held that the First Amendment was not implicated when a county instituted nuisance proceedings and closed a building used by an adult bookstore because it was serving as a place of prostitution. The majority here holds that Arcara applies because the City of Las Vegas proceeded against Talk of the Town under its general nuisance ordinance (although it also proceeded under a similar clause in the ordinance regulating erotic dancing establishments). The City is therefore merely enforcing a generally applicable law directed at non-speech activity, according to the majority.

The analogy to Arcara fails, in my opinion, because the City here did not merely shut down Talk of the Town’s premises for two weeks because it permitted alcoholic beverages to be consumed there. Instead, it suspended Talk of the Town’s permit to present erotic dances. This remedy is clearly directed at expressive activity. During the suspension, Talk of the…