FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BILL BADI GAMMOH, dba Taboo  No. 04-56072

Theater aka Pelican Theater; D.C. No.

LESLIE WEST; ARMINE MICHELLE CV-03-00911-GLT

BEDROSIAN; CHRISTINE JOHANNA

FENER; CHARBONESSE GARRETT; ORDER

HEATHER ELOISE ELAM; STACY JOY AMENDING

ANDRE; MEGHANN LARA ANN  OPINION AND

ONSELEN, DENYING

Plaintiffs-Appellants, PETITION FOR

REHEARING EN

v. BANC AND

CITY OF LA HABRA, AMENDED

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

Gary L. Taylor, District Judge, Presiding

Argued and Submitted

November 1, 2004—Pasadena, California

Filed January 26, 2005

Amended April 1, 2005

Before: A. Wallace Tashima, Raymond C. Fisher, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

3907
COUNSEL

Scott W. Wellman and Stuart Miller, Wellman & Warren,

Laguna Hills, California, for the plaintiffs-appellants. 

3910 GAMMOH v. CITY OF LA HABRA
Deborah J. Fox and Dawn A. McIntosh, Fox & Sohagi, Los

Angeles, California, for the defendant-appellee. 

Scott D. Bergthold, Chattanooga, Tennessee, for Amicus

Curiae League of California Cities. 

ORDER

The court’s opinion, filed January 26, 2005, is amended as

follows: 

The second paragraph on slip op. 1131, under heading “C”,

line 3: the words “leaves open” are deleted and replaced with,

“does not unreasonably limit”. 

Slip op. 1135, first paragraph, line 2: the word “ample”

shall be inserted between “open” and “alternative”. 

With these amendments, Judges Fisher and Tallman have

voted to deny the petition for rehearing en banc and Judge

Tashima so recommends. The full court has been advised of

the petition for rehearing en banc. No judge has requested a

vote on whether to rehear the matter en banc. Fed. R. App. P.

35. 

The petition for rehearing en banc is DENIED. No further

petitions for rehearing or petition for rehearing en banc shall

be entertained. 

OPINION

TALLMAN, Circuit Judge: 

This case involves constitutional challenges to a city ordinance requiring “adult cabaret dancers” to remain two feet

GAMMOH v. CITY OF LA HABRA 3911
away from patrons during performances. The district court

rejected these challenges by dismissing some of the Appellants’ claims on the pleadings and granting summary judgment as to other claims. We denied emergency motions for a

stay of enforcement of the Ordinance pending appeal and now

affirm.

I

The City of La Habra’s (City’s) Municipal Ordinance 1626

(“Ordinance”) regulates adult businesses. The first section of

the Ordinance contains extensive findings that adult businesses generate crime, economic harm, and the spread of sexually transmitted diseases. These findings are based on studies

and police declarations from other jurisdictions, federal and

state judicial opinions, and public health data from surrounding southern California counties. Ordinance, § 1. Other sections of the Ordinance contain regulations purporting to

address the secondary effects described in the first section,

including a prohibition of physical contact between patrons

and performers (the “no-touch rule”) and a requirement that

adult cabaret dancers perform at least two feet away from

their patrons (the “two-foot rule”). Ordinance, §§ 4, 7. 

The Appellants are Bill Badi Gammoh, the owner of an

adult establishment in the City, several dancers at Gammoh’s

club, and a dancer who has been offered employment at Gammoh’s club but has not yet accepted it. Gammoh’s establishment, which does not serve alcoholic beverages, features

entertainment by dancers who perform nude on stage and then

dress in minimal clothing before offering one-on-one offstage

dances.1 The Appellants do not challenge the provisions of the

1Early in this litigation before the district court the Appellants used the

term “lap dance” to refer to these performances. They later distanced

themselves from this term, preferring “clothed proximate dancing”

instead. We reference these individual, close-up performances using the

term “offstage dancing” because the City regulates nude on-stage performances separately from partially-clothed offstage performances and it is

the latter set of regulations that are challenged here. 

3912 GAMMOH v. CITY OF LA HABRA
Ordinance governing on-stage dancing and other aspects of

the operation of an adult cabaret; they challenge only the twofoot rule. 

Three weeks after the City Council passed the Ordinance,

the Appellants filed their constitutional challenge in the Superior Court of California for Orange County. The case was subsequently removed to the United States District Court for the

Central District of California. The Appellants were unsuccessful before the district court. In addition to other rulings that

the Appellants do not challenge on appeal, the district court

dismissed the Appellants’ overbreadth argument and part of

their vagueness challenge with prejudice, and entered summary judgment in favor of the City on their regulatory takings

claim, a First Amendment challenge, and the remaining

vagueness argument. The Appellants pursue their vagueness,

overbreadth, takings, and free speech and expression claims

on appeal. 

II

The Ordinance’s two-foot rule applies exclusively to “adult

cabaret dancers.” The Ordinance defines an “adult cabaret

dancer” as: 

any person who is an employee or independent contractor of an “adult cabaret” or “adult business” and

who, with or without any compensation or other

form of consideration, performs as a sexuallyoriented dancer, exotic dancer, stripper, go-go

dancer or similar dancer whose performance on a

regular and substantial basis focuses on or emphasizes the adult cabaret dancer’s breasts, genitals, and

or buttocks, but does not involve exposure of “specified anatomical areas” or depicting or engaging in

“specified sexual activities.” Adult cabaret dancer

does not include a patron. 

GAMMOH v. CITY OF LA HABRA 3913
Ordinance, § 4. The district court rejected the Appellants’

assertion that this definition is vague and overbroad because

it contains subjective terms. We review the district court’s ruling de novo. See United States v. Rodriguez, 360 F.3d 949,

953 (9th Cir. 2004); United States v. Linick, 195 F.3d 538,

541 (9th Cir. 1999).

A

[1] To survive a vagueness challenge, a regulation must

“define the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited

and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,

357 (1983); see also United States v. Adams, 343 F.3d 1024,

1035 (9th Cir. 2003), cert. denied, 123 S. Ct. 2871 (2004). A

greater degree of specificity and clarity is required when First

Amendment rights are at stake. Kev, Inc. v. Kitsap County,

793 F.2d 1053, 1057 (9th Cir. 1986). 

The Appellants argue that the subjective language used to

define an “adult cabaret dancer” makes the definition, and

thus the Ordinance, unconstitutionally vague. Cf. City of Chicago v. Morales, 527 U.S. 41, 56-64 (1999) (holding a provision criminalizing loitering, which is defined as “to remain in

any one place with no apparent purpose,” void for vagueness

because the provision was “inherently subjective because its

application depends on whether some purpose is ‘apparent’ to

the officer on the scene”); Tucson Women’s Clinic v. Eden,

379 F.3d 531, 554-55 (9th Cir. 2004) (holding a statute

requiring physicians to treat patients “with consideration,

respect, and full recognition of the patient’s dignity and individuality” void for vagueness because it “subjected physicians

to sanctions based not on their own objective behavior, but on

the subjective viewpoint of others”) (internal quotation and

citation omitted); Free Speech Coalition v. Reno, 198 F.3d

1083, 1095 (9th Cir. 1999), aff’d sub nom. Ashcroft v. Free

Speech Coalition, 535 U.S. 234 (2002) (holding a provision

3914 GAMMOH v. CITY OF LA HABRA
that criminalized sexually explicit images that “appear[ ] to be

a minor” or “convey the impression” that a minor is depicted

unconstitutionally vague because it was unclear “whose perspective defines the appearance of a minor, or whose impression that a minor is involved leads to criminal prosecution”).

Several of the terms within the Ordinance’s definition of

“adult cabaret dancer” — “sexually oriented dancer,” “exotic

dancer,” “similar dancer,” “regular basis,” and “focuses on or

emphasizes” — are unarguably subjective. However, two

main factors distinguish the Ordinance from cases such as

Morales, Tucson Women’s Clinic, and Free Speech Coalition,

where the regulations were held to be too subjective to give

notice to ordinary people or guidance to law enforcement: 1)

the subjective terms in the Ordinance are used in combination

with other terms, and 2) the subjective terms do not define

prohibited conduct. 

[2] This circuit has previously recognized that otherwise

imprecise terms may avoid vagueness problems when used in

combination with terms that provide sufficient clarity. See

Kev, 793 F.2d at 1057 (holding that an ordinance prohibiting

dancers from “caressing” and “fondling” patrons was not

vague “in the context of the other definitions provided in the

ordinance” at issue). In this case, the district court recognized

that the two-foot rule applies only to “adult cabaret dancers”

who meet the following five qualifications: 1) the individual

must perform at an “adult cabaret”;2 2) the performer must

2The City of La Habra Code defines “adult cabaret” as: 

a nightclub, bar or other establishment (whether or not serving

alcoholic beverages) which features live performances by topless

and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar entertainers, and where such performances are

distinguished or characterized by their emphasis on matter depicting, describing or relating to “specified sexual activities” or

“specified anatomical areas.” 

City of La Habra Code §18.60.010. 

GAMMOH v. CITY OF LA HABRA 3915
perform as a sexually-oriented dancer, exotic dancer, stripper,

or similar dancer; 3) the performance must focus on or

emphasize the performer’s breasts, genitals, and/or buttocks;

4) the performance must have this focus or emphasis on a regular basis; and 5) the performance must have this focus or

emphasis on a substantial basis. Thus, an “adult cabaret dancer” is defined by a combination of features, not by any one

subjective term. The combined terms outline the performer,

the place of the performance, and the type of performance.

Each of the five limitations provides context in which the

other limitations may be clearly understood. The definition as

a whole gives notice to performers and ample guidance to law

enforcement officers as to who is and who is not an “adult

cabaret dancer.” 

Furthermore, although the definition of an “adult cabaret

dancer” contains subjective terms, the prohibited conduct is

defined objectively. It is not illegal to be an adult cabaret

dancer; only to be an adult cabaret dancer performing within

two feet of a patron. This distinction introduces additional

objectivity into the Ordinance because the act that is prohibited — being within two feet of a patron — is certainly not

vague.3

[3] Vagueness doctrine cannot be understood in a manner

that prohibits governments from addressing problems that are

difficult to define in objective terms. See Grayned v. City of

Rockford, 408 U.S. 104, 110 (1972) (“we can never expect

mathematical certainty from our language”). In this case, a

combination of subjective and objective terms is used to give

a clear picture of an “adult cabaret dancer” and the conduct

3The appellant dancers argue that they will not relinquish their proximity to patrons, and thus need to know how not to be “adult cabaret dancers.” In other words, they assert that they need to know how to continue

their sexually expressive performances within two feet of their patrons.

This, however, is exactly what the Ordinance prohibits. The fact that the

regulation will necessarily alter the dancers’ conduct does not make it

vague. 

3916 GAMMOH v. CITY OF LA HABRA
prohibited of such a dancer is defined objectively. Thus, the

definition of “adult cabaret dancer” is sufficiently clear to

give notice to performers and guidance to law enforcement.

See Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141,

1150 (9th Cir. 2001) (“perfect clarity is not required even

when a law regulates protected speech”).

B

[4] The Appellants claim that the definition of “adult cabaret dancer” is overbroad because it could apply to mainstream

or avant-garde performances as well as adult entertainment.

The Supreme Court and this circuit have emphasized that

“where a statute regulates expressive conduct, the scope of the

statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” World Wide

Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186,

1198 (9th Cir. 2004) (quoting Osborne v. Ohio, 495 U.S. 103,

112 (1990) (internal quotations omitted)). In this case, potentially overbroad applications of the Ordinance are minimal

because performances occurring outside of an adult cabaret

are unaffected by the Ordinance, and those occurring in an

adult cabaret and containing the sexual emphasis that defines

an “adult cabaret dancer” are within the Ordinance’s legitimate sweep. 

The Appellants were unable to cite any example of a performance that would fall within the Ordinance to which application of the Ordinance’s restrictions would be overbroad.

The examples proffered — including a duet, a tango, and an

Elvis impersonator — are unpersuasive. A pas de deux, a ballroom dance, and an impersonation of the King each escapes

the two-foot limitation unless performed in an establishment

which features live performances by “topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers or similar entertainers” characterized by an emphasis on “ ‘specified

sexual activities’ or ‘specified anatomical areas.’ ” See supra

GAMMOH v. CITY OF LA HABRA 3917
note 2 (quoting City of La Habra Code § 18.60.010(C)). However, if they occur within an adult cabaret and the performer

meets all five prongs of the definition of “adult cabaret dancer,” these performances fall within the statute’s legitimate

sweep. 

[5] Regardless of whether the dance is a tango or more typical adult entertainment, requiring a two-foot separation

between dance partners in this highly-charged sexual atmosphere may reasonably advance the City’s legitimate goal of

reducing secondary effects of adult entertainment. The twofoot rule may, for example, provide a line of sight for enforcement of the “no touch” rule and prevent exchanges of money

and drugs. When performed in an adult cabaret, these performances, even if done in an Elvis costume, are thus within the

statute’s legitimate reach. 

[6] Even if the Appellants were able to identify performances that fulfill all aspects of an “adult cabaret dancer” but

are not tied to the secondary effects the statute is designed to

address, “the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it

susceptible to an overbreadth challenge.” Members of City

Council of City of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 800 (1984). Although we recognize that “the First

Amendment needs breathing space,” World Wide Video, 368

F.3d at 1198, in this situation there is no “realistic danger that

the statute itself will significantly compromise recognized

First Amendment protections of parties not before the Court.”

Taxpayers for Vincent, 466 U.S. at 801. If an overbroad application of the Ordinance exists, it is insubstantial when

“judged in relation to the statute’s plainly legitimate sweep.”

See Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973).

III

The district court dismissed the Appellants’ regulatory takings claim on summary judgment. We review this decision de

3918 GAMMOH v. CITY OF LA HABRA
novo. Cal. First Amend. Coalition v. Calderon, 150 F.3d 976,

980 (9th Cir. 1998). We “must determine, viewing the evidence in the light most favorable to the non-moving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the substantive

law.” Id.

[7] The takings clause of the Fifth Amendment protects private property from being taken for public use without just

compensation. U.S. CONST. amend. V (emphasis added). “In

order to state a claim under the Takings Clause, a plaintiff

must first demonstrate that he possesses a ‘property interest’

that is constitutionally protected.” Schneider v. Cal. Dep’t

Corr., 151 F.3d 1194, 1198 (9th Cir. 1998) (internal citation

omitted). The Appellants have not here pointed to a “property

interest” interfered with by the City of La Habra’s regulation

of the dancers’ conduct.4 The district court thus properly dismissed the Appellants’ takings claim. 

IV

The Appellants argue that the Ordinance violates the First

Amendment’s guarantees of freedom of speech and expression. The district court evaluated the Ordinance under intermediate scrutiny and determined that the Appellants’ First

Amendment rights had not been violated. We review the district court’s decision to grant summary judgment de novo,

viewing the evidence in the light most favorable to the Appellants and looking for genuine issues of material fact. See Calderon, 150 F.3d at 980. 

4Certainly Mr. Gammoh and the dancers may suffer economic losses if

patrons are unwilling to pay for dances that must be at least two feet away

from customers. Their claim of right to this stream of income was essentially the basis of the vested rights argument that the Appellants made

before the district court. The district court rejected this argument on summary judgment, and Appellants did not appeal that ruling. 

GAMMOH v. CITY OF LA HABRA 3919
A

First, we must determine whether the Ordinance is a complete ban on protected expression. See Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1164 (9th Cir. 2003)

(plurality opinion) (citing City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425, 434 (2002), and Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 46 (1986)). We conclude that it

is not. 

[8] The two-foot rule merely requires that dancers give

their performances from a slight distance; it does not prohibit

them from giving their performances altogether. The rule limits the dancers’ freedom to convey their erotic message but

does not prohibit them from performing erotic one-on-onedances for patrons. See Renton, 475 U.S. at 46. Because the

dancers’ performances may continue, albeit from a slight distance, this case stands in sharp contrast to our recent decision

in Dream Palace v. County of Maricopa, where we applied

strict scrutiny to an ordinance regulating adult businesses

because even the county conceded that the ordinance was a

complete ban on nude and semi-nude dancing. 384 F.3d 990,

1018 (9th Cir. 2004). Here, the Ordinance prescribes where

offstage dancing can occur (at least two feet away from

patrons) but it does not ban any form of dance. 

The Appellants argue that close propinquity to patrons is a

key element of the dancers’ expressive activity, and that the

Ordinance is therefore a complete ban on a form of expression: “proximate dancing.” This argument has been made and

rejected in this circuit. See Colacurcio v. City of Kent, 163

F.3d 545, 549, 555 (9th Cir. 1998) (rejecting the argument

that because “table dancing” is a unique form of dancing

requiring proximity, a ten-foot separation requirement is a

complete ban on this form of expression). It is true that if the

dancers’ expressive activity is considered “erotic dance within

two feet of patrons” and not merely “erotic dance,” this activity is completely banned. However, virtually no ordinance

3920 GAMMOH v. CITY OF LA HABRA
would survive this analysis: the “expression” at issue could

always be defined to include the contested restriction. See id.

at 556 (rejecting the idea that the applicable “forum” for a

table dance is the area within ten feet of the performer). Protected expression is not so narrowly defined. See Dream Palace, 384 F.3d at 1019-20 (recognizing that the regulations in

Renton and its progeny did not “proscribe absolutely certain

types of adult entertainment” and instead enacted regulations

that “avoid[ed] a total ban on protected expression”). 

[9] “While the dancer’s erotic message may be slightly less

effective from [two] feet, the ability to engage in the protected

expression is not significantly impaired.” Kev, 793 F.2d at

1061. We hold that the Ordinance is not a complete ban on

a protected form of expression. 

B

Next, we must determine what level of scrutiny properly

applies. See Ctr. for Fair Pub. Policy, 336 F.3d at 1164. Traditionally, the Court has utilized a distinction between

content-based and content-neutral regulations to determine the

appropriate level of scrutiny. See e.g., Renton, 475 U.S. at 46-

47. Time, place, and manner restrictions on adult businesses

were considered content-neutral. Id. at 48. 

Recently, however, the Supreme Court has recognized that

virtually all regulation of adult businesses is content-based.

See Alameda Books, 535 U.S. at 448 (Kennedy, J., concurring); see also Ctr. for Fair Pub. Policy, 336 F.3d at 1161

(recognizing Justice Kennedy’s opinion in Alameda Books as

controlling because it is the narrowest opinion joining the plurality’s judgment). Content-based regulations are normally

subject to strict scrutiny. See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 118

(1991) (describing the “necessary to serve a compelling state

interest” strict scrutiny test). 

GAMMOH v. CITY OF LA HABRA 3921
However, designating regulation of adult establishments as

content-based does not end the inquiry as to the appropriate

standard of review. Content-based regulations may be analyzed under intermediate scrutiny if two conditions are met:

1) the ordinance regulates speech that is sexual or pornographic in nature; and 2) the primary motivation behind the

regulation is to prevent secondary effects. Ctr. for Fair Pub.

Policy, 336 F.3d at 1164-65 (citing Alameda Books, 535 U.S.

at 434, 448).

1

The Appellants differ from plaintiffs in previous cases

regarding the regulation of adult businesses in that they wear

minimal clothing for their offstage performances (although

they perform nude on stage). The Appellants argue that the

dancers’ expressive activity is not sexual or pornographic

because the dancers are “fully clothed.” However, the appellant dancers testified that their outfits for offstage dancing

include bikinis and g-strings, sometimes paired with a sheer

skirt or top; at the very least, these accouterments stretch the

term “fully-clothed.” The dancers do cover their breasts and

genitalia, but their argument that this removes their performances from the sphere of “sexual speech” ignores the context in which their offstage performances occur — in an adult

cabaret, minutes after the dancers have performed nude on

stage. See Kev, 793 F.2d at 1061 n.12 (noting that “consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the

governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved”)

(quoting Heffron v. Int’l Soc’y for Krishna Consciousness,

452 U.S. 640, 650-51 (1981)). 

There is certainly a point along the continuum where suggestive speech no longer falls within the “sexual or pornographic” exception to the requirement of strict scrutiny. We

are mindful that this case pushes us closer to that point than

3922 GAMMOH v. CITY OF LA HABRA
those cases where performers are nude or topless. “Sexual

speech” has never been explicitly defined, but the appellant

dancers’ performances, which “focus[ ] on or emphasize[ ]

. . . breasts, genitals, and or buttocks,” occur in adult establishments, are conducted by dancers who also perform nude,

and involve minimal clothing, are certainly within the limits

of “sexual speech.” We therefore review the Ordinance as a

regulation of “sexual or pornographic speech” and proceed to

consider whether reducing the secondary effects of adult

establishments is the Ordinance’s primary purpose. 

2

[10] We generally accept that a regulation’s purpose is to

combat secondary effects if the enactment can be justified

without reference to speech. See Colacurcio, 163 F.3d at 551-

52 (citing Kev, 793 F.2d at 1058-59). We have recognized

that “so long as the regulation is designed to combat the secondary effects of [adult] establishments on the surrounding

community, namely [ ] crime rates, property values, and the

quality of the city’s neighborhoods . . . then it is subject to

intermediate scrutiny.” Ctr. for Fair Pub. Policy, 336 F.3d at

1164-65 (internal citation and quotation omitted); see also

Colacurcio, 163 F.3d at 551 (9th Cir. 1998) (noting that an

ordinance is subject to intermediate scrutiny if its “predominant purpose” is combating secondary effects). For plaintiffs,

this is “a difficult standard to overcome.” Colacurcio, 163

F.3d at 552. 

To determine the purpose of the Ordinance, we look to “objective indicators of intent.” Id. at 552; see also Ctr. for Fair

Pub. Policy, 336 F.3d at 1165. In this case we have the materials that the City Council considered in determining whether

to enact the Ordinance and the Ordinance itself. These indicators demonstrate that secondary effects were the City Council’s concern. 

[11] The record indicates that the City Council was presented with several volumes of materials prior to enacting the

GAMMOH v. CITY OF LA HABRA 3923
Ordinance. These included studies of secondary effects, declarations from police officers, reports on sexually transmitted

diseases, and various other evidence. In a report to the City

Council, the City Attorney recommended action to address

the secondary effects reported in these resources: “[i]n

reviewing the City’s existing regulations and in light of the

extensive existing case law and supporting studies, we conclude that this Ordinance is necessary to reduce and/or preclude these secondary effects.” Our review of the materials

that the City Council considered indicates that concern about

secondary effects, as opposed to the content of the dancers’

expression, motivated the challenged Ordinance. 

[12] The Ordinance itself also demonstrates that the City

Council’s purpose was to combat secondary effects. The

Ordinance states that it is:

necessary for the protection of the welfare of the

people, as a result of the potential negative secondary effects of adult businesses, including crime, the

protection of the city’s retail trade, the prevention of

blight in neighborhoods and the maintenance of

property values, protecting and preserving the quality of the city’s neighborhoods and the city’s commercial districts, the protection of the city’s quality

of life, the increased threat of the spread of sexually

transmitted diseases, and the protection of the peace,

welfare and privacy of persons who patronize adult

businesses. 

Ordinance, §1(A). This statement of purpose is supported by

regulatory provisions that are logically linked to the secondary effects, such as solicitation of prostitution and drug transactions, that the City identified: the Ordinance forbids contact

between patrons and performers and, to make this rule

enforceable, requires a two-foot separation between patrons

and performers. Both the two-foot rule and the no-touching

3924 GAMMOH v. CITY OF LA HABRA
rule are reasonably linked to the secondary effects that the

City identifies as its purpose in enacting the Ordinance. 

We are not persuaded by the Appellants’ argument that a

speech-reducing motive is demonstrated by the fact that proximity between patrons and dancers is allowed when the dancers are not performing. The City may reasonably have decided

that such regulations were impractical or unnecessary. The

Appellants presented no evidence to support their speculation

that the City chose only to regulate dancers when they are

performing because it wished to regulate the performances’

expressive content. 

We are also unpersuaded by the Appellants’ argument that

a speech-reducing motive is demonstrated by a City employee’s testimony that he overheard someone in staff meetings

say that they wanted to drive appellant Gammoh out of business. The Appellants presented no evidence that the person

who made these comments was on the City Council or

affected the Council’s decision to pass the Ordinance. Nothing connects this testimony to the process by which the Ordinance was passed. The testimony therefore does not create a

genuine issue of material fact as to whether the City’s stated

goal of preventing secondary effects of adult businesses was

its true purpose in enacting the Ordinance. 

[13] The Appellants have not raised a genuine issue as to

the City’s motivation in enacting the Ordinance. As Justice

Kennedy wrote in Alameda Books, “[t]he ordinance may be

a covert attack on speech, but we should not presume it to be

so.” 535 U.S. at 447. The objective indicators of the City’s

intent demonstrate a desire to combat secondary effects, and

the Appellants have adduced no evidence that draws this

motivation into question. The Ordinance must therefore be

evaluated using intermediate scrutiny. 

C

[14] A statute will survive intermediate scrutiny if it: 1) is

designed to serve a substantial government interest; 2) is narGAMMOH v. CITY OF LA HABRA 3925
rowly tailored to serve that interest; and 3) does not unreasonably limit alternative avenues of communication. Ctr. for Fair

Pub. Policy, 336 F.3d at 1166; see also Renton, 475 U.S. at

50.

1

[15] Reducing the negative secondary effects of adult businesses is a substantial governmental interest. See Ctr. for Fair

Pub. Policy, 336 F.3d at 1166 (“It is beyond peradventure at

this point in the development of the doctrine that a state’s

interest in curbing the secondary effects associated with adult

entertainment establishments is substantial.”). The Appellants

concede that preventing secondary effects is a substantial government interest, but argue that the City’s evidence of secondary effects is flawed and inapplicable. We disagree. 

[16] The pre-enactment record in this case is substantial.

Cf. id. at 1167-68 (describing the record as “a slim one” and

“hardly overwhelming” but concluding that the studies and

public hearings relied on by the legislature were sufficient to

demonstrate a connection between the regulated activity and

secondary effects). The City Council was presented with,

inter alia, seventeen studies on secondary effects of adult

businesses, a summary of some of these studies, the 1986

Attorney General’s Report on Pornography, declarations from

investigating vice officers, an interview with nude dancers, a

presentation on the harmful effects of pornography in nearby

Los Angeles, numerous reports on AIDS and other sexually

transmitted diseases, and thirty-nine judicial decisions in the

area of regulation of adult businesses. These studies and

reports meet the City’s burden to produce evidence demonstrating a connection between its regulations and the secondary effects that the Ordinance is intended to address. See

Alameda Books, 535 U.S. at 441; Ctr. for Fair Pub. Policy,

336 F.3d at 1166. 

Because the City has met this burden, “[i]f plaintiffs fail to

cast direct doubt on this rationale, either by demonstrating

3926 GAMMOH v. CITY OF LA HABRA
that the municipality’s evidence does not support its rationale

or by furnishing evidence that disputes the municipality’s factual findings, the municipality meets the standard set forth in

Renton.” Alameda Books, 535 U.S. at 438-39, cited in Ctr. for

Fair Pub. Policy, 336 F.3d at 1160. The Appellants attempt

to cast doubt by arguing that the studies on which the City

relies are flawed and irrelevant. 

The Appellants’ proffered expert declared that the City’s

evidence was flawed because “systematically collecting

police call-for-service information” and adhering to the

Appellants’ suggested methodological standards were “the

only reliable information” that could have supported the

City’s concern. This is simply not the law. “[S]o long as

whatever evidence the city relies upon is reasonably believed

to be relevant to the problem that the city addresses[,]” it is

sufficient to support the Ordinance. Renton, 475 U.S. at 51-52.5

While we do not permit legislative bodies to rely on shoddy

data, we also will not specify the methodological standards to

which their evidence must conform. See id. at 51; see also

Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring)

(“As a general matter, courts should not be in the business of

second-guessing fact-bound empirical assessments of city

planners.”). The Appellants have failed to create a genuine

issue of material fact as to the reliability of the collection of

evidence upon which the City relied. 

5The Seventh Circuit has succinctly explained why clear proof of secondary effects is not required: 

A requirement of Daubert-quality evidence would impose an

unreasonable burden on the legislative process, and further would

be logical only if Alameda Books required a regulating body to

prove that its regulation would — undeniably — reduce adverse

secondary effects. Alameda Books clearly did not impose such a

requirement. 

G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d 631, 640 (7th Cir.

2003). 

GAMMOH v. CITY OF LA HABRA 3927
The Appellants also argue that even if the City’s evidence

is reliable, it is irrelevant because it does not measure the secondary effects of clothed performances. No precedent requires

the City to obtain research targeting the exact activity that it

wishes to regulate: the City is only required to rely on evidence “reasonably believed to be relevant” to the problem

being addressed. Alameda Books, 535 U.S. at 438. The studies

upon which the City relied evaluate the secondary effects of

a variety of adult businesses — a category encompassing any

business that would be affected by the Ordinance — and are

therefore unquestionably relevant. 

The presence or absence of minimal clothing is not relevant

to whether separation requirements fulfill the stated purpose

of the Ordinance. This circuit recognizes that municipalities

may reasonably find that separation requirements serve the

interest of reducing the secondary effects of adult establishments. “Buffers” between patrons and performers prevent the

exchange of money for prostitution or drug transactions and

allow enforcement of “no touching” provisions, which would

otherwise be virtually unenforceable. See Colacurcio, 163

F.3d at 554. There is no reason to believe that minimal clothing obviates the need for these measures when the atmosphere

is equally charged — money exchanges and touching are no

more difficult if the dancer is wearing minimal clothing than

if she is partially or fully nude.6

[17] The Appellants have not presented evidence sufficient

to create a genuine issue of material fact as to whether the

two-foot rule is designed to serve a substantial governmental

interest in preventing the secondary effects of adult establishments. The Ordinance therefore survives the first prong of the

Renton test. 

6The City Council was presented with a report documenting an interview with former adult dancers from another jurisdiction in which the

dancers indicated that solicitations for sexual favors occurred “whether the

club is nude or not” and that drugs were frequently passed during tipping.

3928 GAMMOH v. CITY OF LA HABRA
2

[18] Our next consideration is whether the City’s two-foot

rule is narrowly tailored to address the problem of secondary

effects from adult entertainment. See Ctr. for Fair Pub. Policy, 336 F.3d at 1166. The Ordinance’s two-foot separation

requirement is more narrow than other separation requirements that the Ninth Circuit has upheld. See Colacurcio, 163

F.3d at 553-54 (upholding a ten-foot separation requirement);

BSA, Inc. v. King County, 804 F.2d 1104, 1110-11 (9th Cir.

1986) (upholding a six-foot separation requirement); Kev, 793

F.2d at 1061-62 (upholding a ten-foot separation requirement). These earlier cases involved nude or topless dancing,

and therefore differ from the case before us. Nonetheless, they

guide us in now holding that in the context of a club that features on-stage nude dancing and offstage minimally clothed

dancing, the City’s two-foot separation requirement is narrowly tailored to prevent the exchange of money or drugs and

to allow enforcement of the “no touching” provisions. 

3

[19] Finally, we consider whether the Ordinance leaves

open ample alternative avenues of communication. See Ctr.

for Fair Pub. Policy, 336 F.3d at 1166. This inquiry is analogous to that in Section IV(A), supra, which concluded that the

Ordinance is not a complete ban on protected expression. The

challenged Ordinance leaves dancers free to convey their

erotic message as long as they are two feet away from

patrons. Although the message may be slightly impaired from

this distance, it cannot be said that a dancer’s performance

“no longer conveys eroticism” from two feet away. Dream

Palace, 384 F.3d at 1021 (internal citation and quotation

omitted). Because the dancer’s erotic message may still be

communicated from a slight distance, the Ordinance survives

this final prong of the Renton analysis. 

[20] As detailed above, the Ordinance’s two-foot rule is

narrowly tailored to address the City’s concerns about the secGAMMOH v. CITY OF LA HABRA 3929
ondary effects of adult establishments and leaves alternate

channels of communication open by allowing dancers to perform at a two-foot distance. The Ordinance survives intermediate scrutiny.

V

The Ordinance was thoroughly researched and narrowly

tailored to combat the negative side-effects of adult businesses that the City’s research identified. Regulating adult

businesses will always place the City’s concerns in tension

with First Amendment protections. In this case, however, the

City of La Habra designed an Ordinance that falls within what

has previously been accepted as constitutional in this circuit,

despite the minimal amount of clothing that the appellant

dancers wear when performing. The Ordinance is not vague

or overbroad, and the Appellants have raised no genuine issue

of material fact regarding their takings or First Amendment

claims. The judgment of the district court is therefore

AFFIRMED.

3930 GAMMOH v. CITY OF LA HABRA