reasons first result the first power or the fourth well that's a separate question for carmi four separate elements it's that basic principle of statutory construction that when you've got a definition with elements each element has to have separate significance meaning so that's number one so these dancers think that there are these four elements they have to satisfy in order to come within the prohibitions of this definition and so if those deaths if those elements don't mean something then this is just a trap think i understand just fisher's question is the same one i have if you put all those factors together can't you conclude in as objective a way as english words can describe that this particular entertainer is an adult cabaret dancer no we cannot that brings us to the second reason which was in other words to move along if you slipped the question in other words we look at all of the factors considered together as opposed to isolation which is what i hear numerated which was a performer at an adult cabaret and imposed a distance requirement on performers the state court of appeal ruled that that was unconstitutional as a result of the city and that is the new ordinance adding these four influenced heavily influenced for one reason for one thing the supreme court said in the hofmann case that's unfortunate officers testimony is relevant in interpreting the vagueness of an ordinance now he's not just an enforcement officer that we chose he is the head of this for we don't know these dancers have to know how to avoid being adult every dancers because the essence of their performance is the proximity to the patrons it's not the wiggling of hips or whatever it is that the city is concerned about so this comes into to communicate this essential message that they're trying to convey in your saying i thought we had dealt with that argument and rejected it in our prior cases where we've held ten foot rules that that while there might be a minimal impact on the conveyance it's ok because the message can still be conveyed it's just that it can't be done within two feet that's those cases were all dealt with nudity and many of them have dealt with actual groping with the actual physical contact between a patron and a new dancer you know not you're not answering my question mike my question is why aren't we value by our precedent which has rejected the argument that you are now making again which is that somehow the form of expression has to involve very close proximity of the dancer to the patron and that this ordinance george's upon the ability to convey or transmit that message by limiting the distance to no closer than two feet across the issue is not the form of the message clothed dancer as i understand the record you know we're talking about opeth materials we're talking about you know very small costumes worn underneath those materials and to i'm having a hard time here's how this works we are in a crowded and somewhat noisy environment the dancer initiated contact with the patron the patron initiated through it by requesting a dance this breaks the ice they her hand can only be two feet from the patron just means that her her torso and most importantly her face is five feet away now it's important for her to be closer because there  the ten foot gator got the case wrong but the tenth case in fact i think it involved the same anthropological expert if i'm not mistaken that you relied on in the district court and i don't understand why we're not bound by our prior precedent that has essentially rejected this argument because well first of all the fact that the same witness testified there does not mean that she said think things here because that the message is completely different there you dealing with a completely nude woman lying on the stage  understand how else we can distinguish the holdings of those cases and why we are bound by because those in those cases the only message identified was the actual spectacle of the few men body here as while she's dancing she's talking to him typically what will happen after the initial dance is that they will then sit and they will talk and they talk about his problems but his interests to talk she tries to demonstrate compassion for  seems to want these dancers are they're trying to try to deal with these men one on one to have an emotional bond with them they've testified to that's how is this different from the the best way i can describe it i don't understand why it's different in the taboo theater or from any other adult nightclub but in the ninth circuit because of dream palace was not  conduct by the performers at the taboo theater differs from the conduct that we have previously examined in our published case because the conduct here is direct and continu communication one on one between the dancer and the patron about the damage done to all the different that's why i'm having it it's no different here than it is in any of those other clubs now the regulatory approach may have been different in some cases as i understand it the legislature of the county or the city tried to outlaw the clubs entirely and so then then when the courts struck those regulations down they came up with the  distance limitation but the conduct the performance as you describe it of the dancer to me is no different from one to the other there is a victor prince your honor to be between nudity on stage or did elvis perform in a cabaret the club that would be like a las vegas show with ross there during the run up to his act was that what you're saying so therefore that type of if he performed in that kind of a nightclub or whatever he would be subject to this ordinance i don't know if you did or not your honor i mean well you have to because i'm looking i'm looking for under this ordinance who is the paradigm what is the paradigm other than the putative lap dancer that is everybody's mind that would be swept up by the sword is can you give me one example in all of this doesn't seem to cut it this could apply to someone dancing t is that we need to know how to avoid being adult cabaret dancers the purpose of this performance the thing that that customers want is proximity to the dancer so they can communicate and the dancer as i said break the ice by doing this performance for that for the patrons we can modify that performance but we need to understand exactly what it is but proximity is the easiest part of the ordinance that that is the most proximity with performers we have to narrow that down our concern is that we need to have facts not that mean that you need proximity to communicate so you agree that there is that the no touching rule is an forcible human under your theory content to be communicated to your arguing for today how close do they have to get without touching they should be able to get as close as they want but i know they're not as close as they want to because you just told me they can't touch without such ok so outside the by the ordinances own definition they're not engaging in any of the prohibited sexual activity that's covered elsewhere so what this is is carving out a part of conduct which is close there's no alcohol served which is one of the factors that are cited in the secondary studies is the nature of the surrounding people are getting drunk and the like so you have no alcohol and you have someone who standing within two feet and you're telling me that to feed is to keep them from engaging in conversation if you know what i'm sorry yes you are because you're telling me what the content of the conversation is but they're to make that work you have to prevent the the city is trying to prohibit and how you're telling me that the two foot roll rule is to prevent touching because you want line of sight and now you've also said it's to prevent speech so they cannot so she stops so in other words she does her whole routine and then she's done and says ok i'm done and then they can sit down next to each other and they can do whatever they want formants so it's only during the or harm so if they wanted to negotiate if your theory is correct this gentleman has been fully aroused by this performer performing nude onstage comes offstage stands in front of him for whatever period of time sixty seconds miller's argument that the narrowing down itself really doesn't have anything because it's so you know harder to how does it how does the narrowing work in terms of your does it really find it to be rather ludicrous alexander frederick but nevertheless we tried to do and be in keeping with the court's dictates so we made it specifically we're talking about an adult kappa read we can't lose sight of the adult three so you're not prohibiting the conduct all right so we know what the context is we know what we and some just common sense idea of what brings people to this kind of environment and who's performing the question is whether or not the dancers the performers can conform their conduct so that they don't violate anything and if it is it is it simply that they stay outside to support group limit and therefore avoid the questions or if they happen to step across for some reason their hand extended into the forbidden area and you come then the question is whether they have committed it and if ounce turns on the content of what they've done that's why well the first amendment doesn't protect us against criminal punishment so let's just explore here i take your point but i'm still curious that's why i asked the question of counsel for gallery here i'm trying to understand the because you're talking about is filling in the gaps and i'm trying to understand what gaps you're asking to fill in to fill in from alameda books because the gap to get filled in in this case then becomes the next  waypoint for someone who wants to push the line a little further and in restricting speech and you've also already said well we're trying to prevent speech here they can talk after but we don't really want them talking during the performance so up to that point to permit that kind of performance and i don't know if ellis would make the argument that i have to be closer than two feet well for all we know you know elvis will come back and tell us to for reach by i'm creating a two foot barrier well the case involves new dancing where is the case that deals with non knew where the people have tried you can feel as the city is trying to conform its ordinance fee on the other side of the equation the folks who are trying to live within them try to conform there so they deal with these variables where where is the one not so i was once you put clothing on and remove the nudity that you're within you're still with here and that particular case i think it's important for guidance for pro all of us municipalities are trying to do our job here that he's talked about the fact that really shoddy data just isn't going to get the job done and this particular case offering the have not cast any direct down on the basis of the city the city's base is was very strong most likely and i guess to ten six five to three one two five we also have live reports from sister jurisdictions we have extensive fine we were reading and trying to understand the the rulings of this particular circuit i would offer that g m enterprises versus the city of st joseph along with the maricopa carries and and as well i would offer that i deems to me that this particular case helps complete the picture of how you do deal with the time place and manner restrictions after around me a box of hurst we had maricopa county at the time now we have worldwide video at the place and finally i think now we not preclude proximity between dancer and patron it only applies when the dancer is actually engaged in fully protected first amendment conduct we're turning the first amendment upside down here and limiting the actions of the performer only while she's actually expressing herself the line of sight argument makes very little sense because the line the business requirement is not in effect when the dancer is not performing she can be the next to the patron and even though this distortions that all these vice things happen at the club are very very hotly contested we are at the summary judgment stage where we present the detailed declarations by club managers by the dancers saying that these events do not happen there's never been a single conviction for prostitution at the club there's never been a single conviction for drug dealing at the club for any of these other things that mr miller if the city is entitled to rely upon and vice reports from conduct that has occurred at other clubs which have been before this court i don't see how your situation is distinguishable from him though i don't think we need to resolve the question of whether or not conduct did or did not occur at the taboo theatre i'm still i guess i'm still hung up on a question i asked you earlier which is i just don't see how this form of dance differs from the dancing that we've present evidence to support its ordinance and our burden to rebut the city presented no evidence not even an articulated theory unbacked by evidence for an ordinance that supposedly reduce the secondary effects by prohibiting proximity between patron client only if you pitch in advance or only while the dancer is performing but doesn't prohibit proximity momentarily as soon as the dance is over second if they met that burden we don't have the opportunity to rebut it by actual and convincing evidence that we've presented more than a full volume of that record taking apart the city studies presenting studies of our own based upon field data and more ambitious job and more comprehensive job than any plaintiff has ever done in any other case dealing with adult uses and at the same time we have a more modest type of conduct than anyone else has in any other case because first of all we're plaintiffs fail to explain how the distance requirement contingents on their first amendment rights that's a quote we have explained that in there is no allegation that the distance between entertainer and patron is an integral part of the expressive activity that w essay we have explained how it's an integral part of the court said the ability to engage in protected expression was not significantly impaired the expression there was the sight of naked breasts that's not what we're