## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 18 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Z. J. GIFTS D-4, L.L.C., a Colorado Limited Liability Company, doing business as Christal’s, Plaintiff - Appellant,

v. CITY OF LITTLETON, an Incorporated Home Rule Municipal Corporation, Defendant - Appellee. No. 01-1220

Appeal from the United States District Court

for the District of Colorado (D.C. No. 99-N-1696)

Michael W. Gross (Arthur M. Schwartz with him on th e briefs) of Schwartz & Goldberg, P.C., Denver, Colorado for the Plaintiff- Appellant. J. Andrew Nathan (Heidi J. Hugdahl with him on the brief) of Nathan, Bremer, Dumm & Myers, P.C., Denver, Colorado for the Defend ant-Appellee.

Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and LUCERO , Circuit Judge.

LUCERO , Circuit Judge.- 2 -

This case raises several First Amendment issues, in cluding one in which the circuits are substantially divided: namely, the extent to which prompt judicial review must be assured in adult-business licensing cases. Plaintiff Z.J. Gifts D-4, L.L.C. (“ZJ”) brought an action under 42 U.S.C. § 1 983 challenging the City of Littleton’s (“City’s” or “Littleton’s”) adult busin ess ordinance as unconstitutional, seeking declaratory and injunctive relief, attorney ’s fees, and damages. The district court granted summary judgment to the City . We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part and affirm in part.
I In 1993, the City passed an ordinance requiring bus inesses that specialize in adult entertainment or merchandise to obtain lic enses, and restricting those businesses to certain areas of Littleton. Before p assing its ordinance, the City Council heard testimony and reviewed reports from o ther cities concerning deleterious effects of adult businesses on propertyvalues and on crime rates. In the fall of 1999, ZJ opened its store, known as Christal’s, on South Broadway in Littleton. Prior to the opening of Chr istal’s, the City informed the owner of the property on which Christal’s was locat ed that adult businesses were not permitted at this South Broadway location. In late August 1999—shortly before Christal’s opened—ZJ filed a § 1983 suit aga inst the City seeking monetary, declaratory, and injunctive relief. ZJ’s complaint alleged that- 3 -

Littleton’s ordinance was unconstitutional because, among other things, it infringed ZJ’s First Amendment rights. ZJ also all eged that it did not intend to operate an “adult business establishment” as define d in Littleton’s ordinance. (1 Appellant’s App. at 11.) On cross-motions for summary judgment, the districtcourt ruled in favor of the City, concluding that ZJ was covered by Littlet on’s ordinance and that the ordinance was, in its entirety, constitutional. Af ter the district court’s decision in this case and during the briefing for this appeal, the City amended its ordinance, clarifying certain corporate disclosure requirement s and changing an age restriction for adult businesses that do not offer live entertainment. Littleton, Colo., Ordinance 13 (2001) (codified at Littleton, Colo., City Code § 3-14-2, -5, -8, -16 (2002)).
II Both as originally enacted and as amended, Littleto n’s ordinance has two primary functions: (1) it requires all adult busin esses within Littleton to obtain licenses to operate within the City’s borders, and (2) it restricts those businesses to certain sections of the City and requires that t hey not locate within a minimum distance of other specified sites. Among the adult businesses covered by Littleton’s o rdinance, Christal’s would most likely qualify as an “adult bookstore, a dult novelty store, or adult- 4 -

video store.” Littleton, Colo., City Code § 3-14 -2. A commercial establishment falls into this category if, as judged by percentag e of stock-in-trade, revenue, or advertising, it is primarily devoted to the sale of materials that are characterized by the depiction or description of “specified sexua l activities” or “specified anatomical areas,” regardless of whether the establ ishment has other business purposes. Id. “Specified anatomical areas” are further defined as: “(A) Less than completely and opaquely covered human genitals , pubic region, buttocks, anus or female breasts below a point immediately ab ove the top of the areolae; or (B) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.” Id. “Specified sexual activities” are defined to incl ude masturbation, fondling of the genitals and other sp ecified areas, excretory functions, human genitals in a state of “sexual sti mulation, arousal or tumescence,” and “normal or perverted” sex acts. I d. No adult business covered by Littleton’s ordinance may operate within fivehundred feet of a church, school, child-care facili ty, public park, massage parlor regulated by local ordinances, or community correct ional facility. Id. § 3-14-3. Adult businesses also may not operate within one-th ousand feet of each other or a massage parlor regulated by state law. Id. In addition, multiple adult businesses may not operate within the same structure. Id.1 In amending its ordinance in 2001, the City added more specific

corporate disclosure requirements, but did not sign ificantly alter the key provisions. Littleton, Colo., Ordinance 13 (2001). - 5 - Under Littleton’s ordinance, operation of an adult business within the City requires a license. Among other things, a license application must indicate or provide: names of all owners, managers, and employ ees of the business; information about whether the applicant has had an adult-business license denied, revoked, or suspended by any jurisdiction; an indic ation whether the applicant has adult-business licenses from other jurisdictions; the address, driver’s license number, and social security number of the applicantand all owners, managers, and employees; a floor plan for the proposed busine ss; a written statement by the City’s Zoning Officer that the proposed location is in compliance with the ordinance; and a statement of whether an owner, man ager, or employee of the business has been convicted of specified criminal a cts. 1 Id. § 3-14-5. Certain specified persons must also be fingerprinted and ph otographed by the Police Department. Id. After an application has been submitted, the City C lerk has thirty days to approve or deny the license. Id. § 3-14-8. The Clerk may deny an application for one or more specified reasons, including: the appl icant is under twenty-one years old; the applicant has made a false statement on th e application; the applicant or any owner has had an adult-business license revokedor suspended within2 This is the time limit under the amended ordinanc e. Before the

amendments, the ordinance gave the applicant only t en days to request a hearing before the City Manager. Littleton, Colo., Ordinan ce 27 (1993). - 6 - Colorado in the past year; the applicant has operat ed an adult business deemed to be a public nuisance in the past year; a corporate applicant is not in good standing or authorized to conduct business in Colorado; the applicant is overdue in any city taxes, fees, fines, or penalties assessed in relati on to an adult business; the applicant has failed to obtain the required sales-t ax license; or the applicant has been convicted of specified criminal acts. Id. Specified criminal acts for the purposes of the ordinance are defined as: “Sexual crimes against children, sexual abuse, rape or crimes connected with another adult business, including distribution of obscenity, prostitution, pandering or tax violation.” Id. § 3-14-2. If the clerk denies the application, the applicant then has twenty days to appeal the denial to the City Manager, 2 who must hold a hearing within thirty days. Id. § 3-14-8. If that appeal is denied, the applicantmay seek review in state court pursuant to Colorado Rule of Civil Proc edure 106(a)(4). Id. Licenses are issued for one-year terms and may be r enewed only by filing a renewal application. Id. §§ 3-14-9, -10. Licenses may be suspended for one or more specified grounds. Id. § 3-14-11. Suspension or revocation may only occu r after a hearing before the City Manager and may be appealed to state court. Id. Finally, under the amended ordinance, all adult bus inesses in Littleton that do not3 Under the original ordinance, admission to all ad ult businesses was

limited to persons over twenty-one. Littleton, Col o., Ordinance 27 (1993). - 7 - provide live entertainment are required to restrictentrance to individuals who are eighteen or older. 3 Id. § 3-14-16.
III We initially determine whether there is an Article III case or controversy before us. Essence, Inc. v. City of Fed. Heights , 285 F.3d 1272, 1280 (10th Cir. 2002). Standing is an essential part of the case-o r-controversy requirement of Article III. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). There are three elements to Article III standing: (1) injury -in-fact, (2) causation, and (3) redressability. Essence , 285 F.3d at 1280. An injury-in-fact is an “‘inva sion of a legally protected interest’ that is (a) concrete an d particularized and (b) actual or imminent, i.e., not conjectural or hypothetical.” Id. (quoting Defenders of Wildlife , 504 U.S. at 560). Causation requires a showing t hat the injury is “‘fairly trace[able] to the challenged action of th e defendant,’ rather than some third party not before the court.” Id. (quoting Defenders of Wildlife , 504 U.S. at 560). Redressability means that it is “likely thata favorable court decision will redress the injury of the plaintiff.” Id. “The burden to establish standing rests on the party invoking federal jurisdiction.” Id. When the case has been resolved in the district court on summary judgment grounds, “‘aplaintiff must establish that- 8 -

there exists no genuine issue of material fact as t o justiciability,’ and ‘mere allegations’ of injury, causation, and redressabili ty are insufficient.” Id. (quoting Dep’t of Commerce v. United States House of Represe ntatives , 525 U.S. 316, 329 (1999)).
A Standing usually requires that the plaintiff assertan injury to himself, rather than injuries to third parties not before th e court. However, this rule is not strictly enforced in the context of facial challeng es to laws as violative of the First Amendment, even though a facial challenge to the validity of a statute necessarily entails a challenge to the statute as applied to third parties besides the plaintiff: In the area of freedom of expression it is well est ablished that one has standing to challenge a statute on the ground t hat it delegates overly broad licensing discretion to an administrat ive office, whether or not his conduct could be proscribed by a properl y drawn statute, and whether or not he applied for a license. Freedman v. Maryland , 380 U.S. 51, 56 (1965); see also FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 223 (1990) (opinion of O’Connor, J. ) (“Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is chall enged as overbroad.”). “A form of unbridled discretion is the failure to plac e brief, specific time limits on- 9 -

the decision-making process.” Nightclubs, Inc. v. City of Paducah , 202 F.3d 884, 889 (6th Cir. 2000); see also FW/PBS , 493 U.S. at 223–24 (opinion of O’Connor, J.) (stating that unbridled discretion includes lic ensing schemes that create a “‘risk of delay’ such that ‘every application of th e statute creates an impermissible risk of suppression of ideas’” (quotations omitted)). Littleton’s ordinances include within their purview sexually explicit speech, and the City does not contest that this speech is p rotected by the First Amendment. ZJ’s challenge to Littleton’s licensing system is based both on a claim that the City vests too much discretion in li censing officials in granting or denying a license, and that the system creates a ri sk of delay in granting or denying a license. Thus, ZJ has standing to bring a facial challenge to the licensing system on these two grounds. It is true that the overbreadth doctrine discussed above “does not eliminate the need for the plaintiff to demonstrate its own c ognizable injury in fact.” Nat’l Council for Improved Health v. Shalala , 122 F.3d 878, 883 (10th Cir. 1997). But this requirement is satisfied where the plaintiff i s engaged “in a course of conduct arguably affected with a constitutional interest, b ut proscribed by a statute, and there exists a credible threat of prosecution.” Ba bbitt v. United Farm Workers Nat’l Union , 442 U.S. 289, 298 (1979). Such a plaintiff need not wait until an actual criminal prosecution has begun. Id.4 In supplemental briefing the City explicitly waiv ed the applicability of

abstention under Younger v. Harris , 401 U.S. 37 (1971). A state may voluntarily submit to federal jurisdiction even though it mighthave had a tenable claim for abstention. See Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc. , 477 U.S. 619, 626 (1986) (citing cases in which Youngerabstention was waived). - 10 - ZJ’s business depends in part on its ability to sel l materials that are protected by the First Amendment. ZJ has alleged i n its complaint that the City views it as an adult business that is in violation of the licensing requirements of the ordinance, and it has also presented a letter from the City denying ZJ’s salestax license application because ZJ’s business “may be categorized as an adult business.” (3 Appellant’s App. at 450.) ZJ has t hus adequately shown that, at least from the City’s perspective, its business is proscribed by the ordinance. Finally, the City has proceeded with a civil compla int in state court against ZJ for violation of the ordinance based on ZJ’s fai lure to apply for an adultbusiness license and ZJ’s operation of an adult bus iness without a license. 4 While ZJ’s sales-tax license application was denied and acivil complaint was brought in state court only after ZJ’s federal complaint was f iled, these events nonetheless are evidence that when ZJ filed its lawsuit there w as “a credible threat of prosecution” under Littleton’s ordinance and that t he threat of prosecution continues. Babbitt , 442 U.S. at 298; see also id. at 302 (indicating that standing exists “when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative”). ZJ has satisfied the injury-in-5 While ZJ has never applied for an adult-business license, this is not a

requirement for standing to mount a facial challeng e against an ordinance. See ACORN v. Municipality of Golden , 744 F.2d 739, 744 (10th Cir. 1984) (“Applying for and being denied a license or an exe mption is not a condition precedent to bringing a facial challenge to an unco nstitutional law.”). ZJ, the City argues, has no standing to challenge t he licensing requirements of the ordinance because—even if such a challenge w ere successful—ZJ would nonetheless be in violation of the location require ments of the ordinance. However, ZJ challenges both sets of requirements, and if both challenges are successful, then ZJ will obtain its desired relief. See N. Ave. Novelties, Inc. v. City of Chicago , 88 F.3d 441, 443–44 (7th Cir. 1996). In addition , the parties’ supplemental briefs reveal that the City is chargin g ZJ with separately violating both the licensing and location requirements. Thus , even if ZJ only succeeds in its challenge to the licensing provisions, it will nonetheless obtain some relief against prosecution by the City. - 11 - fact requirement because the City has taken steps t o enforce the ordinance against
ZJ. 5
B ZJ also has standing to challenge the location requ irements in Littleton’s ordinance. Both parties agree that ZJ’s business i s located on a site in which adult businesses are not permitted under the ordina nce. Based on the location of ZJ’s business, the City has refused to grant ZJ a s ales-tax license, and the City’s complaint in state court is based in part on the lo cation of ZJ’s business. This is sufficient evidence for ZJ to meet the injury-in-fa ct requirement. By enacting and enforcing its ordinance, the City brought about ZJ’ s injury, and injunctive and declaratory relief, if granted by this court, would redress ZJ’s injury.- 12 - C ZJ has challenged the provisions in Littleton’s ord inance that require the City to reject adult-business license applications when the applicant has been convicted of specified past criminal acts. ZJ has never alleged that these restrictions would apply to any of the owners or op erators of ZJ’s business. ZJ therefore has not even argued that it might be affe cted by these provisions in Littleton’s ordinance, and accordingly it does not have standing to challenge these provisions. See FW/PBS , 493 U.S. at 234 (stating that for a party to have standing to challenge a similar provision in a Dall as ordinance, “the individual must show both (1) a conviction of one or more of t he enumerated crimes, and (2) that the conviction or release from confinement occ urred recently enough to disable the applicant under the ordinance”). ZJ also attacks the ordinance’s license revocation and suspension provisions. ZJ, however, has never obtained a lice nse from the City, nor has it indicated that it plans to obtain a license. Inste ad, ZJ stated in its complaint that it “does not intend to operate an adult entertainme nt establishment in a B-2 zone.” (1 Appellant’s App. at 11.) ZJ has neither alleged nor provided any evidence that the licensing suspension or revocation proceedings will apply to it. As it is “pure conjecture,” Essence , 285 F.3d at 1281, whether ZJ will be forced to co mply with- 13 -

these provisions of the ordinance, ZJ likewise does not have standing to challenge these provisions. Cf. id. (holding that an adult business did not have stand ing to challenge a city’s provisions for the granting of alicense because the business already had a license and had not alleged any facts indicating that it would need to reapply for a license).
D ZJ decries as overly vague the ordinance’s definiti on of an “adult bookstore, adult novelty store, or adult video stor e” as a business that “devotes a significant or substantial portion” of its floor sp ace, inventory, or advertising to adult materials, or that obtains “a significant or substantial portion” of its revenue from those materials. Littleton, Colo. City Code § 3-14-2. In the First Amendment context, the Supreme Court h as determined that a plaintiff mayhave standing to challenge a statute as overly vag ue with respect to third parties even if

the suspect statute is “unquestionably applicable” to the plaintiff. Young v. Am. Mini Theatres, Inc. , 427 U.S. 50, 59–60 (1976) (“On several occasions we have determined that a defenda nt whose own speech was unprotected had standing to challenge the constitut ionality of a statute which purported to prohibit protected speech, or even spe ech arguably protected.”). This “exception from traditional rules of standing” reflects the Supreme Court’s judgment that “the very existence of some statutes may cause persons not before6 Having reviewed the evidence provided by the part ies in the present case,

including the videotape of the interior of ZJ’s bus iness, we conclude that the ordinance is “unquestionably applicable” to ZJ—i.e. , a “significant or substantial” portion of ZJ’s stock-in-trade, interior floor spac e, or revenue is devoted to material that is “characterized by the depiction ordescription” of the defined “specified sexual activities” or “specified anatomi cal areas.” - 14 - the Court to refrain from engaging in constitutiona lly protected speech or expression.” Id. at 59–60. 6 Nevertheless, as the Court in Young explained, “if the statute’s deterrent effect on legitimate expression is not both ‘real a nd substantial,’ and if the statute is ‘readily subject to a narrowing construction by the state courts,’ the litigant is not permitted to assert the rights of third parties .” Id. at 60 (citation omitted, quoting Erznoznik v. City of Jacksonville , 422 U.S. 205, 216 (1975)). In Young , the Court concluded that the ordinance in questio n did not have a “real and substantial” deterrent effect on legitimate expression because “there is surely a less vital interest in the uninhibited exh ibition of material that is on the borderline between pornography and artistic express ion than in the free dissemination of ideas of social and political sign ificance.” Id. at 61. The same rationale applies equally to the present case. Adu lt businesses covered by Littleton’s ordinance are, by definition, likely to carry materials that border on pornography. Stated simply, in light of Young , Littleton’s ordinance does not have a “real and substantial” deterrent effect upon “legitimate expression.”- 15 -

As to the second issue raised by Young—whether the ordinance is readily subject to a narrowing construction— we note that l anguage similar to the “significant or substantial” language used in this ordinance has been interpreted previously by state courts in a sufficiently narrow manner to avoid constitutional problems. A common method of narrowing constructio n has been to develop a percentage that will act as a guide as to what cons titutes “significant or substantial.” See, e.g. , Dandy Co. v. Civil City of South Bend , 401 N.E.2d 1380, 1385–86 (Ind. Ct. App. 1980) (holding that a convic tion under a similar ordinance was sustainable where there was evidence that “50 t o 80% of the inventory was adult in nature”); St. Louis County v. B.A.P., Inc. , 25 S.W.3d 629, 630–31 (Mo. Ct. App. 2000) (noting that a local adult-business ordinance established a rebuttable presumption that a business carries “a s ubstantial portion” of adultoriented items where more than twenty-five percent of the retail value of the inventory consists of such items); City of New Yorkv. Les Hommes , 724 N.E.2d 368, 370 (N.Y. 1999) (noting that the City of New Y ork had clarified that a “substantial portion” for purposes of its adult-bus iness ordinance meant at least forty percent). We conclude that “the limited amou nt of uncertainty in the ordinance[] is easily susceptible of a narrowing co nstruction.” Young , 427 U.S.
at 61.7To the extent that other provisions of Littleton’ s ordinance conflict with

this amendment, they have been repealed. Littleton , Colo., Ordinance 13, § 9 (2001). - 16 - In short, we agree with the district court that ZJ “does not have standing to challenge the constitutionality of [Littleton’s ord inance] under the void for vagueness doctrine.” (3 Appellant’s App. at 561.)
E Finally, Littleton’s ordinance as originally enacte d prohibited individuals under twenty-one years of age from being licensees, owners, managers, employees, or customers of an adult business. ZJ a rgues that it is unconstitutional to restrict individuals between the ages of eightee n and twenty-one from entering or working in its business. We need not address ZJ ’s challenge to the age restrictions, however, because the City has amended its ordinance to provide that anyone over eighteen years of age may enter an adul t business that does not offer live entertainment. 7Thus, ZJ’s challenge to the age restrictions on c ustomers and employees of its business is now moot, and we will not address it.
IV We now address ZJ’s claims that Littleton’s licensi ng scheme grants excessive discretion to licensing officials. Because this case was decided on summary judgment, we review the district court’s decision de novo, applying the same legal s tandard as the district court.8 In the instant case, the City does not argue thatthe materials sold by

“adult businesses” are obscene and therefore unprot ected by the First Amendment. The City has therefore effectively made the same co ncession that the City of Dallas made in FW/PBS : i.e., that the ordinance applies to businesses t hat purvey (continued...) - 17 - Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judg ment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c) para. 4. “When applyi ng this standard, we view the evidence and draw reasonable inferences therefrom i n the light most favorable to the non-moving party.” Simms , 165 F.3d at 1326. “If there is no genuine issue of material fact in dispute, we determine whether the district court correctly applied the substantive law.” Id. In the First Amendment context, “[o]ur review of the record is more rigorous,” and we are “obligated to make an independent examination of the record in its entirety.” Essenc e , 285 F.3d at 1283 (quotation omitted). Littleton’s ordinance requires all adult businesses to obtain a license prior to opening for business. “Adult businesses,” as de fined by the ordinance, include adult bookstores and adult video stores, see Littleton, Colo., City Code § 3-14-2, that sell materials presumptively protected by the First Amendment. 8 A very8 (...continued)

speech protected by the First Amendment. See FW/PBS , 493 U.S. at 224 (noting that the Dallas ordinance largely targeted business es that purvey sexually explicit speech and no claim was made that such materials we re unprotected by the First Amendment). - 18 - similar licensing scheme was analyzed as a “prior r estraint” on speech by six of the Justices of the Supreme Court in FW/PBS . 493 U.S. at 225–30 (opinion of O’Connor, J.); id. at 238 (Brennan, J., concurring). Following FW/PB S , we have concluded that “licensing of adult entertainment es tablishments” must be analyzed as a prior restraint. Essence , 285 F.3d at 1289–90. Ordinarily, a duly enacted law is presumed to be co nstitutional. When a law infringes on First Amendment rights, however, the proponent of the law bears the burden of establishing its constitutionality. Wilson v. Stocker , 819 F.2d 943, 949 (10th Cir. 1987). Whether or not Littleton’s o rdinance is content-neutral is not relevant to the burden of proof, because any “s ystem of prior restraint” comes to this court “bearing a heavy presumption against its constitutional validity.” FW/PBS , 493 U.S. at 225 (quotation omitted). In the pres ent case, therefore, the City bears the burden of establishing that Littleto n’s ordinance is constitutional.
A Standards for analysis of a prior restraint of spee ch were initially developed in the context of censorship schemes in Freedman , where the Supreme Court held that (1) a censorship scheme must assure the exhibi tor, “by statute or authoritative- 19 -

judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film”; (2) the censorship scheme must “assure a prompt final judicial decisio n” following a refusal to license; and (3) “the burden of proving that the fi lm is unprotected expression must rest on the censor.” 380 U.S. at 58–59. In FW/PBS , a divided Supreme Court considered whether Freedm an ’s procedural requirements applied to adult-business l icensing schemes as well. Two Justices joined Justice O’Connor in announcing the judgment of the Court that the Dallas licensing scheme at issue was uncon stitutional. FW/PBS , 493 U.S. at 229. Three other Justices concurred but would h ave gone further in applying the Freedmanrequirements. Id. at 238–39 (Brennan, J., concurring). Justice O’Connor’s opinion characterizes Freedmanas mandating that any prior restraint “that fails to place limits on the time within whic h the decisionmaker must issue the license is impermissible,” FW/PBS , 493 U.S. at 226, because a “scheme that fails to set reasonable time limits on the decision maker creates the risk of indefinitely suppressing permissible speech,” FW/PB S , 493 U.S. at 227. The Court in FW/PBS determined that the Dallas ordinance failed to mee t this general requirement because a license could not be approved without inspection and approval by the fire department, the health departm ent, and the building official as being in compliance with relevant laws and ordin ances. Id. Even though a- 20 -

completed license application had to be approved ordisapproved within thirty days after submission, there was nonetheless a riskthat the city could endlessly delay those inspections and approvals in order to p ostpone consideration of a license application because there was no time limitfor the inspections and approvals. Id. Concluded the Court: “Thus, the city’s regulatory scheme allows indefinite postponement of the issuance of a licens e.” Id. Justice O’Connor then reiterated the Freedmanprocedural requirements: [T]he following three procedural safeguards were ne cessary to ensure expeditious decisionmaking by the motion picture ce nsorship board: (1) any restraint prior to judicial review can be i mposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of thatdecision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. Id. at 227. Concluding that the “first two safeguards are essential” to preventing undue delay in the licensing process, id. at 228, and that the Dallas licensing scheme “fails to provide an avenue for prompt judic ial review” of a license denial, id. at 229, Justice O’Connor’s opinion held that Freed man ’s third requirement—that the censor bear the burden of obta ining judicial action and of proof—need not be applied in the context of adult-b usiness licensing schemes. Id. at 230. The remainder of the Court was sharply divided. Ju stice Brennan, joined by two other Justices, agreed that the Dallas ordin ance was an unconstitutional- 21 -

prior restraint, but would have applied all three o f the Freedmanprocedural requirements. Id. at 238–39 (Brennan, J., concurring). Justice Whit e, joined by the Chief Justice, concluded that the Dallas ordina nce was constitutional and that none of the Freedmanprocedural requirements applied because the ordina nce was not a prior restraint. Id. at 245 (White, J., concurring and dissenting). Ju stice Scalia concurred in part and dissented in part on o ther grounds. Id. at 250 (Scalia, J., concurring and dissenting). Faced with the fractured decision in FW/PBS , our sibling courts of appeals have struggled to determine which of Freedman ’s requirements apply to licensing schemes. Joined by several other circuits, we have concluded that the first two Freedman requirements—maintenance of the status quo and expe ditious judicial review—are applicable to the licensing context. Se e Essence , 285 F.3d at 1290; see also, e.g. , Baby Tam & Co. v. City of Las Vegas , 154 F.3d 1097, 1100–01 (9th Cir. 1998); 11126 Baltimore Boulevard, Inc. v. Prince George’s County , 58 F.3d 988, 996 & n.12 (4th Cir. 1995); TK’s Video, I nc. v. Denton County , 24 F.3d 705, 707–08 (5th Cir. 1994). With respect to Freedman ’s third requirement—that the censor must bear the burden of going to court and of proof—our circuit has not yet decided whether it is applicable to adult-business licensing schemes. See Essence , 285 F.3d at 1290 n.17. Other circuits, however, have held that the third requirement of Freedman does not apply to licensing9 Littleton’s original ordinance required all princ ipal owners, managers and

employees to be photographed and fingerprinted. Li ttleton, Colo., Ordinance 27 (1993). In 2001, the City eliminated the requireme nt with respect to employees, but specified that managers, general partners and ( in the case of a corporation) the (continued...) - 22 - schemes that do not directly regulate content. See MacDonald v. City of Chicago , 243 F.3d 1021, 1035–36 (7th Cir. 2001); Ward v. Cou nty of Orange , 217 F.3d 1350, 1355 (11th Cir. 2000); Steakhouse, Inc. v. Ci ty of Raleigh , 166 F.3d 634, 640–41 (4th Cir. 1999). Because ZJ does not argue that the Littleton ordinance fails to satisfy the third Freedmanrequirement, we limit our analysis here to the two procedural safeguards clearly adopted in FW/PBS

. B Our first inquiry is whether Littleton’s ordinance satisfies the requirement that “any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be ma intained.” FW/PBS , 493 U.S. at 227. Although the ordinance specifies that a li cense application must be approved within thirty days, Littleton, Colo., City Code § 3-14-8, ZJ stresses that, before an application is accepted, (1) applicants a re required to obtain a written statement from the City’s Zoning Official stating t hat the proposed location is in compliance with the location requirements of the or dinance, (2) specified persons named on the application must be fingerprinted and photographed by the Police Department, 9 and (3) the applicant must obtain a sales-tax lice nse. ZJ argues that9 (...continued)

president of the corporation must be photographed and fingerprinted. Littleton, Colo., Ordinance 13 (2001). No time limit for the fingerprinting and photography was specified either in the original ordinance or i n the amended ordinance. - 23 - these provisions present the possibility of indefin ite postponement of a license. Id. Justice O’Connor’s opinion in FW/PBS , which announced the judgment of the Court, held that the Dallas ordinance in questi on allowed for indefinite postponement of a license because the premises had to be approved in advance by “the health department, fire department and the bui lding official.” 493 U.S. at 227. Although the prerequisites required by Little ton’s ordinance are arguably less onerous than those in FW/PBS , Littleton’s ordinance similarly does not specify a time limit within which the City must complete them. We therefore consider whether they render Littleton’s ordinance unconstitutional for failure to satisfy the first requirement of Freedmanand FW/PBS

. Every retail business in Colorado must obtain a sal es-tax license. Colo. Rev. Stat. § 39-26-103. Because this requirement i s not specific to adult businesses, it is irrelevant to the constitutionali ty of the licensing ordinance at issue in the present case. The City does not argue , however, that the other two requirements are similarly applicable to all busine sses, and we therefore presume that they are specific to adult businesses. Little ton’s ordinance provides no- 24 -

assurance that the City will promptly act on a pre- application request for a certification of zoning compliance or for fingerpri nting or photography. During oral argument of the present case, counsel f or the City offered to make a “judicial admission” on behalf of the City t hat “if the Zoning Official doesn’t act, the application can be complete withou t his statement.” Littleton’s ordinance, however, explicitly states that the “City Clerk shall not accept any application that is not complete in every detail.” Littleton, Colo., City Code § 3-14-5. Such details presumably include the prov ision of the Zoning Official’s letter as well as the requirements of photography a nd fingerprinting by the Police Department. By interpreting the ordinance as allo wing for the submission of an incomplete application in the event of delay by the Zoning Official, appellee’s counsel is stating a legal conclusion, and courts a re reluctant to treat opinions and legal conclusions as judicial admissions. See MacDonald v. General Motors Corp. , 110 F.3d 337, 341 (6th Cir. 1997); Glick v. White Motor Co. , 458 F.2d 1287, 1291 (3d Cir. 1972); New Amsterdam Cas. Co. v . Waller , 323 F.2d 20, 24 (4th Cir. 1963). “A matter as important as the con stitutionality of a state statute should not be decided on the basis of an advocate’s concession during oral argument.” Virginia v. Am. Booksellers Ass’n , 484 U.S. 383, 398 (1988) (Stevens, J., concurring in part and dissenting in part).- 25 -

Moreover, Freedmanrequires that either a “statute or authoritative j udicial construction” must specify the time limit within wh ich the license must be issued or denied, 80 U.S. at 58–59, and there is nothing i n Justice O’Connor’s opinion suggesting that this requirement was changed in FW/PBS . Federal courts “lack jurisdiction authoritatively to construe state legi slation.” United States v. ThirtySeven (37) Photographs , 402 U.S. 363, 369 (1971). Only if a state law is “readily susceptible” of an interpretation may the federal c ourts subject it to a narrowing construction, and “we will not rewrite a state law to conform it to constitutional requirements.” Am. Booksellers Ass’n , 484 U.S. at 397 (majority opinion). Because Littleton’s ordinance is not “readily susce ptible” to the interpretation offered by the City—to the contrary, it is readily susceptible to the opposite interpretation—much as we are tempted, we cannot de cide this case on the basis of Littleton counsel’s oral argument offer. Although the Colorado Supreme Court upheld a similar requirement that a zoning permit must accompany the application for a sexually-oriented-business license in City of Colo. Springs v. 2354, Inc. , 896 P.2d 272, 281–82 (Colo. 1995), a separate Zoning Ordinance in that case required t hat a zoning administrator “approve or deny a zoning permit application within ten working days of the submittal.” Id. at 282. Counsel for the City implicitly conceded at oral argument that no such time limit is present in this case. B ecause no time limit is specified10 As noted above, this defect in Littleton’s ordina nce cannot be cured by

“judicial admission,” as the City’s counsel suggest s. Appropriate procedures under Colorado law for the amendment of a city ordi nance must be followed. It is not our role to sit as a party to negotiations conc erning the implementation of the City’s code. Littleton’s ordinance can easily be a mended to state that an application may be submitted without zoning approva l, fingerprinting, or photography if a good faith request is not acted on by the Zoning Official or the Police Department within a specified brief time per iod. - 26 - in the ordinance or by authoritative judicial const ruction, we hold that the subject ordinance’s requirement that a letter from the Zoni ng Official accompany the application, along with the fingerprinting and phot ography requirements, are unconstitutional for failure to specify a time limi t within which the City must

act. 10 See FW/PBS , 493 U.S. at 227. To the extent that the City’s m otion for summary judgment on this point was granted and ZJ’s motion for partial summary judgment was denied, the order of the district court is reversed.
C Having held that Littleton’s ordinance fails to mee t the first test of FW/PBS , we must decide whether the unconstitutional provi sions are severable. Under Colorado law, a section of a legislative enac tment is severable if the remaining portion of the statute is autonomous and the legislature’s will in passing the entire statute is not thwarted by the e xcision. City of Lakewood v. Colfax Unlimited Ass’n , 634 P.2d 52, 70 (Colo. 1981) (en banc). Utilizat ion of a severability clause creates a presumption that the legislature would have been- 27 -

satisfied with the remaining portions of the enactm ent. Id. A provision will not be held severable, however, if the remaining enactm ent is “so incomplete or riddled with omissions” that it lacks coherence. I d. At issue in the present case is an ordinance that c ontains a severability clause, both in its original version and in the ame nded version. Littleton, Colo., Ordinance 13, § 8 (2001); Littleton, Colo., Ordinan ce 27, § 8 (1993). More importantly, other requirements of the ordinance do not depend upon the constitutionally suspect pre-application requiremen ts for coherence or consistency, and the purpose of the ordinance is no t thwarted by their excision. As a result, we conclude that the pre-application l icensing provisions of the ordinance are severable.
D Because other provisions of Littleton’s ordinance, if constitutional, may be enforced without the pre-application requirements, we must decide whether the remainder of the ordinance is constitutional. Thus we consider the “prompt judicial review” requirement adopted by the Supreme Court in FW/PBS , 493 U.S. at 228. ZJ argues that “prompt judicial review” re quires the City to provide a “prompt decision” from the courts as to whether a l icense should have been granted or denied. (Appellant’s Br. at 23.) Accor ding to the City, however, “prompt judicial review” means only that there mustbe “‘the possibility’ or ‘an- 28 -

avenue’ for prompt judicial review,” and there need not be a “judicial determination” within a short period of time. (App ellee’s Am. Resp. Br. at 47.) The circuits are divided over this question. Some have held that “prompt judicial review,” at least with regard to licensing decisions, requires only that the government provide prompt access to the courts. See, e.g., Boss Capital, Inc. v. City of Casselberry , 187 F.3d 1251, 1256–57 (11th Cir. 1999) (concludi ng that “access to prompt judicial review is sufficient forlicensing decisions”); TK’s Video v. Denton County , 24 F.3d 705, 709 (5th Cir. 1994) (same); see also Graff v. City of Chicago, 9 F.3d 1309, 1324–25 (7th Cir. 1993) (en banc) (opi nion of Manion, J.) (noting the availability of the common- law writ of certiorari and finding this procedure sufficient under FW/PBS ); Jews for Jesus v. Mass. Bay Trans. Auth. , 984 F.2d 1319, 1327 (1st. Cir. 1993) (implying th at access is sufficient). Others have concluded that “prompt ju dicial review” requires a prompt judicial resolutionof license denials. See Nightclubs, Inc. v. City of Paducah , 202 F.3d 884, 892–93 (6th Cir. 2000); Baby Tam & Co. v. City of Las Vegas , 154 F.3d 1097, 1101–02 (9th Cir. 1998); 11126 Bal timore Boulevard, Inc. v. Prince George’s County , 58 F.3d 988, 1000–01 (4th Cir. 1995).
Access to prompt judicial review was selected as the appr opriate standard by the Eleventh Circuit in Boss Capital , 187 F.3d at 1255–57. That case enunciates two principal bases in support of its ho lding that mere access is- 29 -

sufficient in adult-business licensing cases. Firs t, Boss Capital holds that Justice O’Connor modified the second Freedmanrequirement relating to judicial review in the adult-business licensing context. Id. at 1255–56. Second, Boss Capital reasons that this interpretation of FW/PBS is appropriate given the difference between censorship cases and licensing cases. Id. at 1256–57. Focusing on Justice O’Connor’s language, the Eleventh Circuit points out that Justice O’Connor uses different terminology th an Justice Brennan in describing Freedman ’s second requirement. Id. at 1255 (citing FW/PBS , 493 U.S. at 228–29). Justice O’Connor’s opinion holds that there must be “the possibility of prompt judicial review” in the event a license i s denied, FW/PBS , 493 U.S. at 228 (opinion of O’Connor, J.) (emphasis added), andstates that the Dallas ordinance failed to provide an “avenue for prompt judicial review,” id. at 229 (emphasis added). Later, the requirement is charac terized by Justice O’Connor as “the availabilityof prompt judicial review.” Id. at 230 (emphasis added). In contrast, Justice Brennan’s concurrence states thata “prompt judicial determinationmust be available.” Id. at 239 (Brennan, J., concurring) (emphasis added). Justice O’Connor’s language could arguably mean that the FW/PBS Court modified the second Freedmanrequirement in the context of licensing cases. Se e Boss Capital , 187 F.3d at 1255–56 (relying partially on the dif ference of language11 If the O’Connor opinion did modify Freedman ’s “prompt judicial

review” requirement for the licensing context, then it arguably struck down the ordinance at issue in FW/PBS on a narrower ground (failure to provide prompt access to judicial review) than the Brennan concurrence w ould have (failure to provide the prompt judicial determinationrequired by Freedman ). If that is the case, then the O’Connor restatement of the “prompt judicial review” requirement might well state the law, at least in the context o f adult business licensing. See Marks v. United States , 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining t he result enjoys the assent of five Justices, the holding of the Court may be view ed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” (quotation omitted)). Whether this would constitut e the narrowest ground for decision is debatable, however. See 11126 Baltimore Boulevard , 58 F.3d at 999 & n.15 (arguing that, if Justice O’Connor modified the Freedman requirement, this was not the narrowest ground for decision). B ecause we conclude that Justice O’Connor did not modify the second Freedmanrequirement in the licensing context, we need not decide which ground for decisi on in FW/PBS was the narrowest. - 30 - to distinguish Freedmanfrom FW/PBS ). 11 It is by no means clear, however, that Justice O’Connor intended to change the meaning of the “prompt judicial review” requirement. First, when Justice O’Connor refers t o “prompt judicial review,” she cites to Freedman , which unequivocally stated that the procedure mus t “assure a prompt final judicial determination.” 380 U.S. at 59; see also 11126 Baltimore Boulevard , 58 F.3d at 999 (discussing this point). Other de cisions following Freedmanhave used the phrase “prompt judicial review” to i ndicate a prompt judicial determination , albeit in a censorship context. See 11126 Baltimore Boulevard , 58 F.3d at 1000 (listing several Supreme Court ca ses). Moreover, elsewhere in her opinion in FW/PBS , Justice O’Connor states that the “first two12 Baby Tamdraws an analogy to baseball. Judicial review wit hout a

decision “would be like throwing a pitch and not ge tting a call. As legendary major league umpire Bill Klem once said to an inqui sitive catcher: ‘It ain’t nothin’ till I call it.’ This is also true of judi cial review. Until the judicial officer makes the call, it ain’t nothin’.’” 154 F.3d at 11 02. - 31 - safeguards” provided for by Freedmanare “essential.” FW/PBS , 493 U.S. at 228. Although Justice O’Connor inevitably qualifies the prompt judicial review requirement by referring to the “possibility,” “ava ilability,” or “avenue” of such review, such qualification most likely amounts to a n acknowledgment that it is up to the plaintiff to decide whether or not to seek j udicial review. This language does not necessarily indicate any intent to weaken the second Freedman requirement. Parties always have access to the courts. See FW/PBS , 493 U.S. at 248 (White, J., dissenting) (“[N]o one suggests that li censing decisions are not subject to immediate appeal to the courts.”); Baby Tam , 154 F.3d at 1101 (“[A] person always has a judicial forum when his speech is alle gedly infringed.” (quoting Graff , 9 F.3d at 1324)). Judicial review is available r egardless of whether an applicable state court procedure is expressly menti oned in the ordinance. In order to have “prompt judicial review,” however, a party necessarily must be able to obtain a decision , for “without a decision, the most exhaustive revi ew is worthless.” 12 Baby Tam , 154 F.3d at 1101–02. Thus, Justice O’Connor’s “avenue for prompt judicial review” requirement in a First Amendment context13 Littleton’s ordinance, for example, lists eight s pecific reasons to deny a

license—although the ordinance does not explicitly state that this list is exclusive—and these reasons do not involve discreti on on the part of the licensing official. Littleton, Colo., City Code § 3-14-8. - 32 - makes far more sense if it is understood to mean a prompt final judicial determination. The Eleventh Circuit further points out in Boss Cap ital that Freedmanand the line of cases following it can be distinguished from adult-business licensing cases on the grounds that they involved censorship rather than licensing. Justice O’Connor held in FW/PBS that licensing schemes do not involve “the grave ‘dangers of a censorship system,’” and therefore “the full procedural protections set forth in Freedmanare not required.” 493 U.S. at 228 (citation omitted). As the Eleventh Circuit notes, adult-business licensin g schemes primarily involve “mundane and ministerial factors,” such as the gene ral qualifications of each applicant. 13 Boss Capital , 187 F.3d at 1256. In contrast, censorship cases involve a highly subjective judgment about the nature of th e suspect material. In addition, the Eleventh Circuit notes, “unlike mo vie distributors who might show a given film in hundreds of theaters aro und the country,” applicants for adult-business licenses arguably have a greaterincentive “to stick it out and see litigation through to its end.” Id. at 1256. Freedman ’s rationale therefore arguably makes less sense in the licensing context, and Boss Capital concludes14 Analyzing the constitutionality of a permit requi rement for a public

forum, the Supreme Court has recently held that an ordinance that gives no discretion to the licensing official does not threaten to stifle free expression. See Thomas v. Chi. Park Dist. , 122 S. Ct. 775, 780–81 (2002). However, Thomas distinguishes FW/PBS on the grounds that “it involved a licensing schem e that target[ed] businesses purveying sexually explicit s peech,” id. at 780 n.2 (quotation omitted), and the Court did not overrule its earlier decision that the first two Freedmanrequirements must be applied in adult-business lic ensing cases. -33- that the need for a prompt judicial decision is the refore “less compelling.” 14 See Boss Capital , 187 F.3d at 1256–57 (arguing that access to prompt judicial review is sufficient for licensing cases). Because the or dinance in dispute contained an explicit judicial review provision, the Eleventh Ci rcuit held it constitutional. Id. at 1255, 1257. Boss Capital draws a rational distinction between licensing cas es and censorship cases. The purpose of Justice O’Connor’ s language distinguishing between these two categories, however, is most logi cally understood as an attempt at explaining why Freedman ’s third safeguard—that the burden of going to court and the burden of proof must be on the censor—is no t appropriate to the licensing
context. See FW/PBS , 493 U.S. at 229–30 (concluding that the third Fre edman requirement does not apply to licensing cases). If Justice O’Connor had intended to adopt a different judicial review requirement fo r licensing cases, she could have done so explicitly, just as she explicitly rej ected the burden-shifting requirement.-34-

Other circuits have held that the judicial review r equirement of Freedman was not altered by FW/PBS . As the Sixth Circuit notes, Justice O’Connor “gave no indication that she was modifying the second req uirement of prompt judicial review” in the licensing context. Nightclubs , 202 F.3d at 893. According to the Ninth Circuit, the FW/PBS plurality “took issue only with Freedman ’s requirement that the censor bear the cost of going to court to obtain judicial review; otherwise, FW/PBS offered nothing different from Freedman ’s concept of what ‘judicial review’ meant.” Baby Tam , 154 F.3d at 1102; see also 11126 Baltimore Boulevard , 58 F.3d at 999 (reaching the same conclusion). I f the Court adopted the Freedmanrequirement without modification in FW/PBS , then the distinction between licensing and censorship is notrelevant here. Even if the rationale behind Freedman is specific to censorship cases, there is an equally valid rationale for requiring prompt judicial review in adult-business licensing cases. Although adult-business licensing ordinances are technically considered “content-neutral,” ZJ Gifts D-2, L.L.C. v. City of Aurora , 136 F.3d 683, 686–88 (10th Cir. 1998), they are distinguishable from other content-neutral time, place, and manner restrictions insofar as the y target “businesses purveying sexually explicit speech.” Thomas v. Chi. Park Dis t. , 122 S. Ct. at 780 n.2 (2002) (quoting FW/PBS , 493 U.S. at 224). A licensing official may have little or no-35-

discretion in reviewing an application, but he or s he may be tempted nonetheless to overstep the bounds of the ordinance. Adult businesses are controversial, and the possibi lity exists that licensing officials might allow their personal views on the m orality of sexually explicit entertainment to sway a decision on an application. Given the strong feelings that adult businesses can engender, there must be a prompt judicial determination to ensure that licensing officials do not exceed theirauthority under the ordinance in their zeal to protect the local community. ZJ sell s sexually explicit magazines and videocassette tapes, which are presumptively pr otected by the First Amendment, see FW/PBS , 493 U.S. at 224, and the danger that an ordinance like Littleton’s may be improperly used as a subterfuge for censorship is too great to overlook the necessity for a prompt judicial determ ination. In short, we are not persuaded by those circuits th at have concluded that mere “access” to judicial review is sufficient in l icensing cases. Following the Fourth, Sixth and Ninth Circuits, we hold that, in the event that an adult-business license is denied, FW/PBS requires a prompt final judicial decision regarding the validity of the denial. “[A] theoretical possibili ty of expeditious judicial review is not constitutionally sufficient.” Nightclubs , 202 F.3d at 892. “While we trust state courts to exercise due diligence, we cannot b e sure that a state judge . . . toiling under a busy docket, will conduct a hearing and render a decision in a-36-

prompt manner.” Id. Prompt judicial review, including a prompt final decision, must be assured in all First Amendment licensing ca ses in order for the second requirement of Freedmanand FW/PBS to be satisfied. What constitutes a prompt judicial determination in the adult-business licens ing context is to be determined by reference to the Supreme Court’s jurisprudence f ollowing Freedman . See, e.g. , Southeastern Promotions, Ltd. v. Conrad , 420 U.S. 546, 561–62 (1975) (holding that a judicial review process lasting more than fi ve months was not prompt). Littleton’s ordinance allows a party whose license has been denied to appeal to the Colorado district court under Colorad o Rule of Civil Procedure 106(a)(4). This Rule allows an adverse decision re garding the license to be given expedited review in the trial court’s discretion. 2354 Inc. , 896 P.2d at 284 (citing Colo. R. Civ. P. 106(a)(4)(VIII)). Because this Ru le does not assure that license decisions will be given expedited review, however, it does not save Littleton’s ordinance. Accordingly, the order of the district court granting summary judgment for the City is reversed to the extent that it held the judicial review procedure to be constitutionally sufficient.
V Finally, ZJ attacks the location restrictions in Li ttleton’s ordinance as unconstitutional because they do not provide reason able alternatives of communication, as required by City of Renton v. Playtime Theatres, Inc. , 47515 In its reply and supplemental briefing, ZJ argued that the location

restrictions in Littleton’s ordinance should be vie wed as “content-based” restrictions on speech subject to strict scrutiny. In particular, ZJ argues that the recent Supreme Court decision in Thomas , 122 S. Ct. 775 (2002), and Justice Kennedy’s opinion in City of Los Angeles v. AlamedaBooks, Inc. , 122 S. Ct. 1728, 1739 (2002) (Kennedy, J., concurring in the j udgment), support this claim. This court, however, has previously held that a nea rly identical ordinance should be reviewed as a “content-neutral” regulation subje ct to intermediate scrutiny. See ZJ Gifts , 136 F.3d at 686–88. We see nothing in either Tho mas or Alameda Books that requires reconsideration of our conclusion as to the applicable standard of review. -37- U.S. 41 (1986). 15 It is the City’s burden to demonstrate that its o rdinance meets this requirement. See ZJ Gifts , 136 F.3d at 688.
Rentonconsidered a local ordinance that restricted the l ocation of adult businesses. 475 U.S. at 44. Content-neutral zonin g ordinances, the Court held, are permissible so long as “reasonable alternative avenues of communication” are left open, id. at 53, a question that is answered through an anal ysis of how much land is available in which adult businesses may be located under the zoning system, id. at 53–54. In undertaking that analysis, the court s must examine what land is actually available, but also must keep in m ind that adult businesses must “fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees.” Id. at 54. How much land is sufficient to constitute “reasonab le alternative avenues of communication” is a question that the Renton Court left open. In Renton , the ordinance left “520 acres, or more than five percen t of the entire land area of” the16 ZJ argues that some of these parcels are unavaila ble because portions of

the parcels are within five-hundred feet of schools , day care centers, and correctional facilities. However, as the record sh ows, the majority of these parcels are outside the distance limits. Under Littleton’s ordinance, the distance limits are only violated if the exterior wall of th e structure in which the adult business is located is within the minimum distance from the neighboring use. Thus, these parcels are available for use by an adu lt business as long as the business locates in the portions of the parcels whe re such uses are permitted. -38- city, open for adult businesses, with the land “in all stages of development from raw land to developed, industrial, warehouse, offic e, and shopping space that is criss-crossed by freeways, highways, and roads.” I d. at 53 (quotation omitted). The RentonCourt determined that the ordinance “easily meets” the requirement of providing a “reasonable opportunity to open and ope rate an adult theater within the city.” Id. at 54. Under Littleton’s ordinance, there are approximatel y one-hundred acres of land that are within industrial zones and outside t he minimum distance from nearby schools, day care centers, and correctional facilities. 16 This land constitutes between 1.2 and 1.3% of the total acrea ge of the City of Littleton. At least one other court of appeals has found this pro portion of land to be sufficient under Renton . See Lakeland Lounge of Jackson, Inc. v. City of Jackso n , 973 F.2d 1255, 1260 (5th Cir. 1992). ZJ argues that portions of this land are unavailabl e because specific parcels are (1) currently occupied by large-scale manufactu ring uses, see Topanga Press,17We add that we do not address a situation where a ll or nearly all

properties consist of large-scale manufacturing andwarehouse uses, such that the diversity of land uses described in Rentondoes not exist. In such a situation, the municipality may be “effectively denying” adult bus inesses “a reasonable opportunity to open and operate.” Renton , 475 U.S. at 54. -39- Inc. v. City of Los Angeles , 989 F.2d 1524, 1531–32 (9th Cir. 1993), or (2) currently owned by governmental entities, see Centerfold Club, Inc. v. City of St. Petersburg , 969 F. Supp. 1288, 1305 (M.D. Fla. 1997). First, we disagree with the notion that warehouses and other large-scale manufacturing uses must be excluded per se from anycalculation of whether there is sufficient land for adult business uses. In Ren tonitself the Supreme Court noted the diversity of property that was available for adult business use under the ordinance—“industrial, warehouse , office, and shopping space,” Renton , 475 U.S. at 53 (emphasis added)—in concluding that there was sufficient land available. Similarly, Littleton’s ordinance leaves a diversity of different types of properties available for use by an adult business, including l arge-scale manufacturing and warehouse uses. Under Renton , there is no need to exclude those uses from our analysis. 17While it may indeed be more difficult and more expensive for an adult-business owner to acquire and convert these types of properties, there is no requirement that those businessmen must “be able to obtain sites at bargain prices.” Id. at 54.18 In reaching this conclusion, we draw the followin g inferences in ZJ’s

favor: Littleton’s fire protection center and the abandoned city property are located in an industrial zone that comprises approx imately eight acres near the intersection of Chenango and Vallejo Streets. We a ssume that all of those properties were used by both the fire protection ce nter and the abandoned city property, and we remove them from our analysis. As for the Arapahoe Government Center, ZJ relies on the City’s maps in the record as evidence regarding its location on “South Crestline Avenue.” We can find only an ambiguous reference for a parcel south of West Cres tline Avenue, which appears to occupy about two acres of the industrial zones. ZJ has provided us with absolutely no information from which an inference c an be drawn regarding the specific location or acreage of Littleton’s nature area. -40- As for inclusion of the government-owned properties , we need not decide whether that is permissible under the Rentonanalysis. Even excluding those parcels that are government-owned according to evid ence introduced by ZJ, there is sufficient property zoned for adult business use s to meet the requirements of
Renton . ZJ submitted evidence identifying only one speci fic property—the Littleton City Shops between Belleview Avenue and P rentice Avenue, constituting twelve acres—as being owned by the gov ernment. Other properties mentioned by ZJ in its brief—a fire training center , a nature area, and the Arapahoe County Government Center—are not identifie d by parcel, nor does ZJ provide any information as to their total acreage. However, even giving ZJ the benefit of the doubt as to these additional propert ies, based on the information we can glean from the record, removing these propertie s would only reduce the total available area by approximately ten acres. 18 Thus, the total area available19 Where an adult-business zoning regulation prohibi ts the location of one

adult business within a minimum distance of anotherone—as Littleton’s ordinance does—some courts have required the analys is of the minimum number of sites to take into account those spacing require ments, dramatically reducing the potential number of sites. See, e.g. , Young v. City of Simi Valley , 216 F.3d 807, 821 n.13 (9th Cir. 2000). ZJ has never argued thatwe should incorporate the spacing requirements into our analysis, and given t hat ZJ is the only adult business currently operating or seeking to operate in Littleton, such an adjustment would be inappropriate in the first place. See Diamond , 215 F.3d at 1057–58. -41- excluding government properties would be about seve nty-eight acres, or just under one percent of the total area of the City. Moreover, excluding both the government properties to which ZJ objects as well as those properties that are implicated by the minimum distance requirements of the ordinance, the City has listed over twenty s ites within the industrial districts that its real estate expert stated would be available for adult businesses. Given the small population of Littleton (forty-thou sand people), and the fact that ZJ is the only adult business that is currently loc ated in Littleton, this is a sufficient number of available sites. See Diamond v. City of Taft , 215 F.3d 1052, 1058 (9th Cir. 2000) (holding seven available sites sufficient where only one business sought to locate within the municipality), cert. denied , 531 U.S. 1072 (2001); 19 see also Boss Capital , 187 F.3d at 1254 (listing factors to be considere d in analyzing whether there are sufficient sites foradult businesses, including geographical size of the locality, location of site s, number of adult businesses currently operating or seeking permission to operat e, and population). We20 ZJ urges us to hold that the Colorado Constitutio n provides broader

protections than the United States Constitution in this context. None of the cases cited by ZJ in support of this proposition, however , involves a challenge to adultbusiness licensing ordinances. See Bock v. Westminister Mall Co. , 819 P.2d 55, 56 (Colo. 1991) (discussing plaintiffs’ right to di stribute political leaflets in a shopping mall); People v. Ford , 773 P.2d 1059, 1061 (Colo. 1989) (addressing the constitutionality of the Colorado obscenity statute ); People v. Seven Thirty-Five East Colfax, Inc. , 697 P.2d 348, 353 (Colo. 1985) (same). In analyz ing a local ordinance regulating nude dancing, the Colorado Sup reme Court relied almost exclusively on federal cases in determining that th e ordinance did not violate the free speech protections of either the federal or st ate constitutions. See 7250 Corp. v. Bd. of County Comm’rs , 799 P.2d 917, 924–28 (Colo. 1990) (en banc). We have found no evidence that in this particular fiel d of free speech jurisprudence the Colorado courts have interpreted the state cons titution to provide greater protection than the federal Constitution. -42- conclude that the ordinance meets the requirements of Renton , 20 and the section of the district court order dealing with the location requirements of Littleton’s ordinance is affirmed.
VI In sum, we conclude that ZJ has standing to challen ge the pre-application and location requirements of the ordinance and the judicial review procedure. ZJ lacks standing, however, to challenge the ordinance as vague, attack the ordinance’s license revocation and suspension provi sions, or challenge the age and criminal history restrictions in the ordinance. As to the merits of ZJ’s challenge, we hold that the judicial review procedu re and pre-application requirements of Littleton’s ordinance are unconstit utional, but that the location requirements of the ordinance are constitutional.21 We grant the City’s motions to file additional supplemental appendices. -43- The judgment of the district court is AFFIRMED in part and REVERSED in part. 21