morning in place of course my name is gary and enjoy represent the appellant american entertainers it's a privilege to have this opportunity to talk about primarily first amendment issues will have a good conversation about that we raised three facial restraint issue and also an age disqualification involving adults who are over eighteen but under twenty one i'd like to start with the overbroad challenge this is really the most consequential for the ordinance if the court finds as we've   the details of it and you know kind of go back to first principles and explain why that would be the case we have an unusual ordinance here it's really rather quirky and in many respects because it makes extensive use of  a word or and so for instance starting out what we usually think of as the defining characteristic of adult entertainment is nudity that's what makes it differ from any other form of entertainment and it also is a pledge to lead to adverse secondary effects which are the basis for regulating these businesses in a special manner the rocky mount ordinance does not just regulate nude because it uses the this junk a word or so it talks about specified anatomical areas and it also talks about specified sexual activities which are a form of conduct either one of those can surprise now even if we are just dealing with nudity that can often be problematic so for instance a sprint court has told us and southeastern promotions versus conrad in shadow versus efrem borough mt efrem that merely having nudity in a play or performance doesn't take it outside the protections of the first amendment and doesn't put it in the category of sexually oriented businesses which  subject to special regulations so here we're dealing with a code that is not just dealing with nudity but also addresses fully fully clothed performances if they have these sexual specified sexual acts so we should take a look at that  again we see definitions in the alternative and getting down really to the fundamental problem here you have to look at it in an overall context but the real problem with assortments is twofold and it's the same problem  the statutes faced in cherundolo one and the legend nightclub is this this language fumble and erotic to which is as being a trigger event for this ordinance the language specific language  reasons one of them is if we look at cases which have looked at the that specific verbiage erotic touching it is frequently declared unconstitutional for over breath and we cited a number of those cases in footnote to in preparation for argument is some real world examples here in richmond where this is ordinance mine apply and so i came up with a couple we always we always talk about in these arguments those old vintage classics herron equus maybe full monte a little bit but let's look at what's going on in richmond the carpenter theater this season is going to have a presentation by the richmond ballet of a sleeping beauty and if you go on the website i actually have a download here we see a touching just does not really cure the problem and then the other part of it is that it does not have an express exception for mainstream in entertainment and in those statutes an ordinance is which this court has upheld that is a universal intentional intentional act intended to provoke special gratification so very much the same thing not erotic touching but something that would be more like an actual sex act so looking at how th has specifically dealt with the issue of this car the you know the safe harbor provision if you will for those things which should be protected like the richmond ballet like the triangle players presentations of a room upstairs  upstairs it's a it's in terms of how this is done properly you have to have both aspects so if you're going to start with a very broad definitional section as we see here always have to have that down with the express car and a good place to look for there is in the legend nightclub case so legend has the advantage of having some history behind it so we saw what happened in one where the same formulation was declared unconstitutional eventually and this court kind of did a prescription for how to fix which the north carolina legislature took to heart and what they did is they removed the word touch from the definitional section and they the express exemption for theater care and doma case the written case and other cases like that the focus of cases that type necessarily have been put on this is a burden a spot on the government and so far as the speech as an issue and this case or what is tell me what is the home of requiring a license for this type of ins right so in over breath what we're what we're talking about the city for instance and it's briefing says oh this isn't so bank was so bad because it's not a full ban on a constitutionally protected speech but when we're talking about over birth it's not really the regulations that properly apply to a specially ordered business it's the it's the problem of burdening speech that shouldn't be burned at all so for looking at the deaf at the example of the richmond ballet we would not want to have a circumstance in which the venue has to be the carpenter theater has to be specially licensed to show the event we don't want to be in a situation where the actual ballet performers have to get an adult entertainment license and they also should not be subject to the conduct provisions and belittle revoked license or so in this case is this  or got in the adult entertainment establishment is that what you really hear about is that what i really care about is that is that what you're really talking about here is that particular zoning a lot of ordinance not zoning is is a matter for this kind of interesting how this case it and you really care about that a lot but we didn't challenge it directly or honor because it was resolved at the trial court level and it turns out it's an it's not a disqualifier for this particular business but we're talking about though actually does impact wasn't all up makes you understand constitution you're making so then we only concern just about the burton imposed requiring this operational license yes with a little explanation my client is most concerned about the licensing features and the regulations on conduct it would prefer that they be liberalized or not they're trying to put in a constitutional way to look at it because of the cases you look at the burton and you told me didn't challenge that ordinance itself so the concern here is the burden  facial challenge and the focus of the attack is is not on on our challenge of the ordinance or just not challenging sending our right but the the fundamental the fundamental result of this challenge is that in the course of the definition first amendment right to if you will how old the printing presses the means of production and so let's talk about that a little bit because it deals with one of our challenges the age they rise there is the first amendment right yes yes yes there is a of pharmacy and also you could go back to new york times versus sullivan i suppose and southeastern controversies production southeastern productions which talk about the right to produce speech you said this is a first amendment right and the printing presses in your analogy were what are the printing presses the new york times on this right now this is actually oriented business is what are the printing presses it would be a facility and in particular with the stage because you have to have the stage to do the performance so that is you have to have you could just have an empty state so i guess the printing presses in your analogy are the people the dancers  it would work like this there is a right to speak we all know that and so what is that in compass obviously speaking like i'm doing now listening like you're doing now patronage the right to want to buy the speech or to well let's yes yes i think that's yes the better analogy perhaps would be again the battle of so we have a number of speech interests there we're talking about again the individual performers the artistic performers we're talking about the audience and we're talking about the production company so in what we're talking about here then is the adult business is basically the production company and so when you have licensing or taxing requirements of apply to just the means  production that involves first member principles of the murdoch case which we don't brief has to do for instance with the taxation of specific taxation cases say equity ownership and some entity is protected first amendment rights the way i would i would say no because actually this is a case of first impression and bring to the court what we have or are cases that  say that to be a producer of speech is a protected interest and what we have here with the rocky mount ordinance is not a lot of general application it's a law that only targets adult entertainment which is the speech component and and if we recognize this first amendment right to operate this and then we focus on well you know first went right then to what extent is government burton this speech with adult businesses that's well established in our circuit the circuit so intermediate scrutiny applies which means you have to have a substantial government interest which we readily concede and you have to have narrow tailoring and so the question here is if it's from having the right the same rights as any other adult protection side there is standing because there is a direct impact on this business in terms of its ability to sell the business for instance or to a demise it you know to put it in a will also the it's not just ownership  that's a stake here but the right to have managers who are under the age of twenty one and that right is directly affected by this ordinance and so the pool of managers is smaller this is a fairly young business and so it's not it's not ridiculous to say that  a twenty year old manager would be something perhaps desirable in one of these businesses at least from the perspective of the owner so there is actually a direct effect which would provide standing on the equal protection sure sign all right thank you reserve the remainder my time thank far as from one of the comments of billy from judge weigh in earlier on the first argument how is this constitution first of all we all recognize that the city of rocky mount has a substantial interest in regulating topless dance because it has a long history of negative secondary effects so what rocky mount did was to an act the sexually oriented business ordinance to protect that interest and it did so and in their early tailor way so that there are not substantially more burdensome and it's application of the necessary to advance that interest there's the ordinance  completely dry it could be completely dry but they have to regulate provide adult or time out like a lot of statutes that could be perhaps clearer in defining what an adult cabaret is which is the type of business that is operated bob apply these ordinances that have been approved like and current old two were trapped pretty closely to the liquor laws and which is one of the factors in finding deleterious effects and here you look like you cover a large group ng of organizations which would include mainstream entertainment organizations which current old one surge can't didn't and to respond about first of all judge again they don't cabaret talks about retail businesses or private clubs as defined in north carolina general statute eighteen bit that is the only definition of retail business or private club in the entire north carolina general statute and it deals with the issuance of a b c permit kind of commonsense analysis of this type of case which is what the other courts have done well the schulze cases may be one of the primary ones that dealt with that and talked about how to how do we differentiate and make sure this does not a plot of main stre because then we have barbara of course one of the other points we would make is that is not a challenge that was asserted in the complaint and the court doesn't know and have notice of what the allegations are and what's being challenged  plaintiff responded to the district court and said we don't think that that is within the scope of the complaint we did address that nonetheless but the court of course agreed with us and found that it was not overly broad but as it's which of course the clubs like to refer to it constantly the ballet is not regularly provide me and a vent a program a show that has specified anatomical areas or specified sexual activities we disagree with your reading of that phrase and were to find that available for viewing is not modified regularly you lose it would be an uphill battle judge all agree with us again if the court is going to consider first of all that i brought up because the only challenge in the complaint deals with fondling or and therefore we believe that the rock you have ordinance as far as operation is concerned likewise is not overly broad another reason i think that they ordinance in this case differs from and it talks about the dilatory is a fax of topless bars long standing rocky mount as part of its ordinance house a case study and it shows a course in these establishment versus other that this is not a prohibition on this activity it is merely saying look we've got a substantial interest regulating this type of activity and what we're going to do to regulate that and we're going to create an ordinance that says you can do this you just have to come apply for a license to get the authorization to go do that and that is something that it is not of course the point was never plot i think another a license i think one of the things to keep in mind is that with the never brought the true ones that the court shall not find an ordinance is i really broad unless it reaches a substantial number of them permissible applications and of course in this case there is no evidence in the record of any business hosting some incidental events involving some degree of later date or don't have entertainment and it was shot there is no evidence of a business who wanted to host or put on some type of event with that activity and said no we're not sure if we're going have to get a license or not so we're not going to do that so i don't think that there has been any showing either in the record or an argument a substantial number of men permissible applications there's no realistic danger that anybody's first amendment rights are going to be frustrated or to not by having this ordinance in place so  with a regularly provides which all due respect judge a j i do believe that that does modify the two verbs that are in the provision here as far as providing or has available for viewing home and with the purpose preamble talking about what we're trying to do is regulate the negative secondary effects that come from these types of businesses and i don't think that there is any showing that this ordinance is applicable to mainstream venues that may have some type of show with some degree of nudity the touching the ballet lift the cheerleader let's mention in the plainest brief that is not following  is not erotic touching and so that would not bring in to application the ordinance to those types of businesses the second issue that was raised was the prior restraint issue i think we dealt fairly straight forwardly with that in our brief the pilots main argument of course with prior restraint you cannot have unbridled discretion and there has to be a that's an objective analysis all laws which i would hope we all are going to follow all laws not have a menu of well i'm going to pick these to apply today in these to apply to morrow what's to stop the chief of police from doing that his discretion to do that well first of all judge i think we start off with it is not a subject of analysis by the chief as far as how's this business going to operate what are they actually doing as we pointed out all of this information unilaterally comes from the applicant here's my business here's my floor plan here's how we're going to operate here whether we're going to have a guard dog or not those bits of information are exclusively provided to the city by the applicant and then as the judge that it's just an objective analysis about all laws we don't have to say whether or not there was a price gouging statute in north carolina that's half of this because it's not so we couldn't cite that as a reason to deny an application but what had a little concerned there is that the police chief he has to examine all applicable laws he gets to sort of pick and choose and we don't know what those laws are we're talking  sunday talk about all applicable laws including but not limited to the city's building zoning and help regulations so if the court were to say ok well we're going to say this means all applicable laws pertaining to iced but again i think that what we have and again going back to the shots case from the seventh circuit there's language in that case where the exact same applicable law provision was found to be constitutional that talked about no license would be issued if the premises was not approved as being in compliance with applicable laws and ordinances and that court found that that was not unconstitutional and therefore it was uphill so i think with the language and logic from the statehouse case steakhouse versus raleigh where there was the burbage adversely effect which someone could perhaps argue a subjective but the court found that no that was not unconstitutional with the shorts case finding all applicable laws being in compliance with constitutional requirements  we believe that the ruling from the district court should be affirmed on this issue as well where we go with this i want to be there there are a lot of laws you would think that he could just pick not one to use i mean rocky mountain is all kind of long as you got laws trying to attack and what that chip does is allow you to locate an island and so if you're going to have a guard dog it's got to have a chip because if that dog gets off the premises they can do damage and that's the reason behind that be shocked if it had a guard dog they deal in lots of cash if you're going to have a guard dog there then you better comply with the local ordinance because it's all related to what rocky mounts trying to do which is protect the community from the negative secondary effects of these businesses generate the final issue of course as the age restriction plan has failed the site we've not seen any where there is a constitutional right for this the district court said we don't see any such right under the plaintiff's argument it would almost be that there's a constitutional right to own any business because you could always have some kind of speech i just want to have a restaurant i want to have an adult club and when i have a restaurant and a privilege just not a right in the courts and held in north on there is no constitutional right to that what you're trying to do is to put the onus on the individuals who would be responsible for the ownership and operation of these businesses they all serve alcohol and the judge the drop don't club is not going to be around very long it's just not so it makes sense that a substantial relationship between what rocky mount is trying to accomplish by having individuals responsible for the ownership and operation of these clubs to be the same person who is dealing with the a b c permits i think it would be a difficult situation not a productive healthy situation to have an eighteen year old have a s o b license but he can't get an a b c permit so then we've got somebody else getting maybe say permit so now do we a strong owner who's eighteen years old who maybe doesn't have a criminal background that somebody else we have so we don't think that there's a constitutional right that's been infringed by that the district court agreed with that position and we narrow focus on the specified sexual acts which is the really problematic part of this ordinance we heard a concession which from the city today which is they do acknowledge this applies to wet and dry establishment so it's a pretty obvious concession for instance the definition of specified sexual activities is also used to define adult bookstore as an adult many theaters and those are driest out which means and so that that concession is significant because it brings us way outside of what regularly featuring that's problematic for two reasons one is because it does not seem to apply to the available for viewing portion of it but even if we're just taking it on the face the regularly feature is a problem for things like ballet because there are listen every ballet cheerleaders do lifts if we're looking at adult i'm sorry modeling classes at the university there are always going to feature those activities and only available for viewing side we also have just an under the new component is it also a dress as nudity and that's where that would fit in again we're dealing with an exceptionally broad ordinance really something unlike this court has dealt with previously all all the previous cases involve liquor establishment also limiting constructions are important so in cherundolo to the limiting construction on fondling that allowed that or that statute to survive this court asked the attorney general what would it apply to my madonna  stage performance she is known for highly sexual erotic performances a lot of gyrating in and touching of the naughty bits and the attorney general said no that finally only is actual manipulation which should be like simulated masturbation and the court accepted that concession as part of the reason to uphold the statute in contrast the record shows here when asked specifically the individual responsible for administering this program said acknowledge that even just grazing the breasts on stage would be erotic touching and would trigger the impact of the statute with regard to the argument the city made that this ordinance has not been an enforced against ballot yet that argument always fails it was made in the judge wins case the of this ordinance it is facially overbroad one thing i wanted to mention about the restriction on age the disqualifier is that it is in rocky mount it is unique to adult entertainment which is a speech activity you don't see that prohibition elsewhere and if we're talking about a narrow tailoring as we must with intermediate scrutiny take a look at how the state of north carolina deals with age with its liquor laws it doesn't prohibit ownership outright you can own up to twenty five