Dream Palace v. County of Maricopa
Opinion
Lead Opinion
Scannlain, J.
Opinion by Judge O’SCANNLAIN; Concurrence by Judge CANBY.
We must decide whether a local ordinance imposing certain licensing requirements and operating restrictions on adult entertainment establishments violates the First Amendment.
I
A
In 1996, the Arizona legislature amended § 11-821 of the Arizona Revised Statutes, to authorize counties to enact zoning ordinances with respect to adult entertainment establishments. See Ariz.Rev.Stat. § 11-821. Acting on its new authority, the Maricopa County Board of Supervisors asked its Planning and Development Department to research and to prepare a draft of what would eventually become Ordinance P-10, at issue in this case.
At the behest of the county board, the planning department prepared a four-page report for board members, addressing the negative effects associated with adult-oriented businesses. In addition to discussing the Supreme Court’s decisions in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986), Young v. American Mini Theatres, 427 U.S. 50 , 96 S.Ct. 2440 , 49 L.Ed.2d 310 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560 , 111 S.Ct. 2456 , 115 L.Ed.2d 504 (1991), the report…
Concurring Opinion
Canby, J.
concurring:
I concur in Judge O’Scannlain’s well-written opinion. Were I writing on a blank slate, however, I would dissent from Section VI, which upholds the prohibition *1023 against operation of adult-oriented businesses between the hours of 1:00 a.m. and 8:00 a.m. on Monday through Saturday, and 1:00 a.m. and 12:00 noon on Sunday. As Judge O’Scannlain’s opinion recognizes, the result reached in Section VI is largely controlled by Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir.2003). I dissented in that case because I was convinced, as I still am, that the hours restriction violated the holding of a majority of the Supreme Court (per Justice Kennedy) in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 , 122 S.Ct. 1728 , 152 L.Ed.2d 670 (2002). The record in the present case is not sufficiently different from that in Fair Public Policy to lead me to a different conclusion. I recognize, however, that my view did not prevail in Fair Public Policy, and I am bound by that decision. I therefore concur fully in Judge O’Scannlain’s opinion today.