Empress Adult Video v. City of Tucson

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO

EMPRESS ADULT VIDEO AND )
BOOKSTORE, an Arizona corpor ation; )
OSCO COMMUNICATIONS GROUP, )
INC. , an Ar izona corporation, )
)
Plaintiffs/Appellants, ) 2 CA-CV 2000-0079
) DEPARTMENT B
v. )
) OPINION
CITY OF TUCSON, a municipal )
corporation, )
)
Defendant/Appellee, )
)
and )
)
STATE OF ARIZONA, )
)
Intervenor/Appellee. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. 336804

Honorable Nanette M. War ner, Judge

AFFIRMED IN PART AND REVERSED IN PART
Meehan & Associates
By Michael J. Meehan Tucson
Attorneys for Plaintiffs/ Appellants

Thomas J. Berning, Tucson City Attorney
By David L. Deibel Tucson
Attorneys for Defendant/Appellee

Janet Napolitano, Arizona Attorney General
By H. Leslie Hall and Thomas J. Dennis Phoenix
Attorneys for Intervenor/Appellee

D R U K E, Presiding Judge.

¶1 Appellants Empress Adult Video and Bookstore and Osco Communications Group

(collectively, Empress) operate an adult-oriented business that principally sells and rents

nonobscene, sexually explicit materials and predominantly features nonobscene, sexually explicit

live performances. 1 As a result, A.R. S. § 13-1422, in conjunction with A.R. S. § 11-821, requires

Empress to close between 1:00 a. m. and 8: 00 a.m. from Monday through Saturday and between

1:00 a.m. and 12:00 noon on Sunday; failure to do so constitutes a class one misdemeanor. 2

Empress sought an injunction against the enforcement of § 13-1422 and a declaratory judgment

1
Appellees make no claim the materials or performances are obscene.
2
Section 13-1422, A. R.S. , applies to adult arcades, adult bookstores or video stores, adult
cabarets, adult motion picture theaters, and adult theaters as well as escort agencies and nude
model studios. Because Empress does not operate an escort agency or nude model studio and does
not serve alcoholic beverages, the provisions of § 13-1422 that apply to such activities are not at
issue here. Section 11-821, A.R.S., is part of the county planning and zoning statutes and allows
for “the r egulation and use of business licenses, adult oriented business manager permits and adult
service provider per mits in conjunction with the establishment or operation of adult oriented
businesses and facilities.” § 11-821(B)(5). Section 11-821(H) also provides definitions for
various types of adult oriented businesses, mater ials, and live performances covered by § 13-1422.

2
that the statute violates article II, §§ 6 and 13 of the Ar izona Constitution. 3 The trial court found

that § 13-1422 does not violate our state constitution and denied injunctive relief. This appeal by

Empress followed. We have jurisdiction pursuant to A. R.S. § 12-2101.

¶2 We apply a de novo standard of review in determining a statute’s constitutionality.

State v. Korzuch, 186 Ar iz. 190, 920 P.2d 312 (1996); State v. Evenson, 201 Ariz. 209, 33 P.3d

780 (App. 2001). Because we presume a statute is constitutional, New Times, Inc. v. Arizona

Board of Regents, 110 Ar iz. 367, 519 P.2d 169 (1974), the bur den of overcoming this

presumption rests on the party challenging the statute. Kotterman v. Killian, 193 Ariz. 273, 972

P.2d 606 (1999). “ [A]nd we resolve all uncertainties in favor of constitutionality. ” Id. at ¶31.

But, when constitutional rights are at issue, “we avoid, where possible, attempts to erode [those]

rights by balancing them against regulations serving governmental interests. ” Mountain States

Tel. & Tel. Co. v. Arizona Corp. Comm’n, 160 Ar iz. 350, 357, 773 P.2d 455, 462 (1989).

Article II, § 6

¶3 Article II, § 6 of Arizona’s Constitution provides that “[e]very person may freely

speak, write, and publish on all subjects, being responsible for the abuse of that right. ” Our

supreme court has recognized that the scope of this provision is generally gr eater than that of the

First Amendment to the United States Constitution. “Indeed, this court has previously given

art. 2, § 6 gr eater scope than the first amendment.” Mountain States, 160 Ariz. at 354, 773 P.2d

at 459; see also Phoenix Newspapers, Inc. v. Superior Court, 101 Ar iz. 257, 259, 418 P.2d 594,

3
The original complaint Empress filed also claimed that § 13-1422 violated the United
States Constitution. But Empress did not include that claim in its amended complaint and, on
appeal, states that its “challenge to this statute is predicated solely on the Arizona Constitution.”

3
596 (1966) (“The r ight of every person [in Arizona] to freely speak, wr ite and publish may not

be limited but such a person may be held accountable for an abuse of that right.” ); Martin v.

Reinstein, 195 Ariz. 293, 987 P.2d 779 (App. 1999) (acknowledging that, in some circumstances,

our constitution provides greater protection to speech than federal constitution).

¶4 Relying primarily on Mountain States, Empress contends the greater scope of

article II, § 6 protects the nonobscene, sexually explicit materials and live performances

encompassed by § 13-1422 and § 11-821. Empress points out that, in Mountain States, the

supreme court opted for “a more literal application” of article II, § 6. 160 Ariz. at 357, 773 P.2d

at 462. Appellees counter that Mountain States also included the caveat that it did not “deal with

the problems from sexually explicit messages. ” 160 Ariz. at 352 n.4, 773 P.2d at 457 n.4. And,

although appellees concede that article II, § 6 does provide speech “ a greater degr ee of protection

in some instances than does the First Amendment,” they contend Arizona’s courts have often held

that article II, § 6 provides the same protection. In support, they cite Yetman v. English, 168

Ariz. 71, 811 P.2d 323 (1991); Reinstein; Bird v. State, 184 Ariz. 198, 908 P.2d 12 (App. 1995);

In re Maricopa County Juvenile Action No. JT9065297, 181 Ar iz. 69, 887 P.2d 599 (App. 1994);

Berry v. Foster, 180 Ar iz. 233, 883 P.2d 470 (App. 1994); and Fiesta Mall Venture v. Mecham

Recall Committee, 159 Ar iz. 371, 767 P.2d 719 (App. 1988). These cases are not controlling,

however, because they did not involve, as her e, nonobscene, sexually explicit materials or live

performances. 4 Accordingly, we first determine whether article II, § 6 protects such materials or

4
Yetman addressed defamatory speech; Reinstein concerned physician-patient
communications; Bird pertained to an election wager; Maricopa County No. JT9065297 involved
a curfew ordinance that restricted a minor’s freedom of movement; Berry dealt with an injunction
that did not implicate article II, § 6; and Fiesta Mall discussed political activities on private

4
live performances. 5 The following principles of constitutional construction guide our

determination.

¶5 The cardinal rule of constitutional construction dir ects us to “follow the text and

the intent of the framers, where it can be ascertained. ” Fain Land & Cattle Co. v. Hassell, 163

Ariz. 587, 595, 790 P.2d 242, 250 (1990); see also County of Apache v. Southwest Lumber Mills,

Inc., 92 Ariz. 323, 376 P.2d 854 (1962) (governing principle of constitutional construction is to

give effect to framers’ intent and purpose); S. A. v. Superior Court, 171 Ar iz. 529, 530, 831 P.2d

1297, 1298 (App. 1992) (established rule of construction requires court “ to follow the

constitution’s text and the framers’ intent, if it can be determined”). And, unless the constitution

otherwise defines them, we give the words of a constitutional provision their “ natural, obvious

and ordinary meaning. ” Southwest Lumber, 92 Ar iz. at 327, 376 P.2d at 856; see also McElhaney

Cattle Co. v. Smith, 132 Ar iz. 286, 290, 645 P.2d 801, 805 (1982) (“ When the words of a

constitutional provision are not defined within it, the meaning to be ascribed to the words is that

which is generally understood and used by the people. ”). We may also consider the provision’s

history when attempting to determine the framers’ intent. Boswell v. Phoenix Newspapers, Inc. ,

property.
5
Section 11-821(H)(2) defines adult books, magazines, periodicals, photographs, films,
motion pictures, videocassettes, and slides as those “that depict or describe specific sexual
activities or specific anatomical areas.” Similarly, § 11-821(H)(3) defines an adult live
entertainment as that which “features” either “ [p]ersons who appear in a state of nudity” or “ [l]ive
performances that are characterized by the exposure of specific anatomical areas or specific sexual
activities.” In this context, “ feature” means “a mar ked element of something: something that is
esp. pr ominent.” Webster’s Third New International Dictionary 832 (1971).

5
152 Ariz. 9, 730 P.2d 186 (1986) (when necessar y, cour t examines history of constitutional

provision to determine framers’ intent).

¶6 Applying the above principles to article II, § 6, we fir st note that it secures the right

of every person in Ar izona to “fr eely speak, wr ite, and publish on all subjects.” This language

neither expressly nor implicitly excludes the subject of sex. Indeed, the ordinary meaning of the

word “all” indicates otherwise. In this context, the word means “each and ever y one of” or

“ever y.” Webster’s Third New International Dictionary 54 (1971). Based on the plain language

of article II, § 6, then, every person in Arizona has the right to speak, write, and publish freely

on every subject, from anarchy to zoology. As the supreme court observed in Phoenix

Newspapers, the words of article II, § 6 “ar e too plain for equivocation. ” 101 Ariz. at 259, 418

P.2d at 596.

¶7 Moreover, the available history of article II, § 6 does not suggest the framers

intended to limit the type of subjects that one can address. According to one legal scholar, those

attending the 1910 constitutional convention “borr owed liberally from the Constitution of the State

of Washington in framing the Declaration of Rights that now appears in article II.” John D.

Leshy, The Making of the Arizona Constitution, 20 Ar iz. St. L.J. 1, 82 (1988). The free speech

provisions in both constitutions contain identical language and, of article I, § 5 of the Washington

Constitution, it has been said that it “often will support a br oader protection for free speech. ”

State v. Reece, 757 P.2d 947, 955 (Wash. 1988). Our resear ch also discloses that some forty

other state constitutions contain provisions with language substantially similar to article II, § 6 of

6
our state constitution. 6 For instance, article I, § 2 of the California Constitution contains almost

identical language and is considered more “ definitive and inclusive than the First Amendment. ”

Wilson v. Superior Court, 532 P.2d 116, 120 (Cal. 1975). Likewise, “ [t]he protection afforded

by the guarantees of free press and speech in [article I, § 8 of] the New York Constitution is often

broader than the minimum required by the First Amendment.” O’Neill v. Oakgrove Constr. Inc.,

523 N.E.2d 277 n.3 (N. Y. 1988). Also, similar language in article I, § 8 of the Texas

Constitution has been held “to ensure broad liberty of speech, ” Davenport v. Garcia, 834 S. W.2d

4, 8 (Tex. 1992), and to “ clothe[] the citizen with liberty to speak, wr ite, or publish his opinion

on any and all subjects.” Ex parte Neill, 22 S. W. 923, 924 (Tex. Crim. App. 1893).

Additionally, the Oregon Supreme Court has said that the free speech provision of its constitution

has greater br eadth than the First Amendment and covers “ver bal and nonverbal expressions

contained in films, pictures, paintings, sculpture and the like” on “ ‘any subject whatever. ’” State

v. Henry, 732 P.2d 9, 11 (Or. 1987), quoting article I, § 8 of the Oregon Constitution. And, in

Lindsay & Co. v. Montana Fed’n of Labor, 96 P. 127, 131 (Mont. 1908), the cour t reached this

conclusion about article III, § 10 of the Montana Constitution: “ That the individual citizen of

Montana cannot be prevented from speaking, writing, or publishing whatever he will on any

subject.” We are of the same opinion on our own article II, § 6; it protects the right of each

person in this state to speak, wr ite, or publish on all manner of subjects, including sex, and to do

so freely.

6
See Ex parte Tucci, 859 S. W.2d 1 (Tex. 1993).

7
¶8 Although this right may be exercised freely, article II, § 6 itself makes each

individual “r esponsible for the abuse of that right. ” Accor dingly, a per son may be answerable

for defamatory statements, see Yetman; perjury, see A.R. S. § 13-2702 and Franzi v. Superior

Court, 139 Ariz. 556, 679 P.2d 1043 (1984); uttering “fighting words, ” see State v. Brahy, 22

Ariz. App. 524, 529 P.2d 236 (1974); offering or conspiring to commit an act of prostitution, see

Files v. Bernal, 200 Ariz. 64, 22 P.3d 57 (App. 2001); bribery, see A.R. S. §§ 13-2602 and 13-

2605; or commercially publishing an obscene book, magazine, photograph, or motion picture.

See A.R. S. §§ 13-3501 and 13-3502; State ex rel. Collins v. Superior Court, 163 Ar iz. 246, 787

P.2d 1042 (1986).

¶9 Additionally, Mountain States makes clear that the protection afforded by article

II, § 6 does not foreclose limited governmental regulation. There, the supreme court recognized

that a governmental department or agency can “impose content-neutral, reasonable time, place,

and manner regulations that tangentially affect speech.” 160 Ariz. at 358, 773 P.2d at 463. But

such regulations, said the court, “must regulate with narrow specificity so as to affect as little as

possible the ability of the sender and receiver to communicate.” Id.; see also New Times, 110

Ariz. at 371, 519 P.2d at 173 (restrictions on First Amendment rights “ must be drawn with

narrow specificity” ).

¶10 Empress asserts that § 13-1422 is unconstitutional under article II, § 6 because the

statute fails to satisfy this narrow specificity standard. Empress contends the legislature “ could

have drafted restr ictions that more directly address the alleged problems . . . caused by adult

entertainment businesses.” Appellees respond that we should determine the constitutionality of

§ 13-1422 under First Amendment principles, arguing that Arizona’s narrow specificity standard

8
is no different from the “nar rowly tailored” standard adopted by the Supreme Court. This

standard requires that “ a regulation of the time, place, or manner of protected speech must be

narrowly tailored to serve the government’s legitimate, content-neutral inter ests.” Ward v. Rock

Against Racism, 491 U.S. 781, 798, 109 S. Ct. 2746, 2757, 105 L. Ed. 2d 661, 680 (1989). The

regulation satisfies the federal standard if it “ ‘promotes a substantial government interest that

would be achieved less effectively absent the regulation.’” Id. at 799, 109 S. Ct. at 2758, 105

L. Ed. 2d at 680, quoting United States v. Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 2906,

86 L. Ed. 2d 536, 548 (1985). The regulation “ need not be the least restrictive or least intrusive

means of doing so,” however. Ward, 491 U.S. at 798, 109 S. Ct. at 2757-58, 105 L. Ed. 2d at

680. 7 We thus examine Mountain States to determine whether its narrow specificity requirement

imposes a different standard. But, because § 13-1422 regulates two different forms of protected

7
Based on the federal narr owly tailored standard, a number of federal appellate courts have
concluded that hours-of-operation restrictions similar to § 13-1422 do not offend the First
Amendment. See Dima Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999) (holding that
ordinance restricting adult bookstore’s hours of operation survives First Amendment challenge);
Richland Bookmart, Inc. v. Nichols, 137 F .3d 435 (6th Cir. 1998) (ruling that First Amendment
not violated by statute limiting hours a business may sell adult books, magazines, and videotapes);
Ben Rich Trading, Inc. v. City of Vineland, 126 F .3d 155 (3d Cir. 1997) (determining that
ordinance regulating operating hours of establishments selling adult books and showing adult films
constituted permissible time, place, and manner restriction on speech for purposes of First
Amendment).

9
expression—nonobscene, sexually explicit materials, or “ adult speech,” 8 as well as nonobscene,

sexually explicit live performances, or “ expressive conduct” 9—we address the two separately.

Adult Speech

¶11 Mountain States involved so-called “ScoopLines” that provided sports, weather,

and other types of information, including “sexually explicit messages, ” through the telephone lines

of Mountain States Telephone and Telegraph Company. 160 Ariz. at 352, 773 P.2d at 457. As

a result of various problems and complaints about ScoopLine services, the Arizona Corpor ation

Commission ordered the telephone company “to implement universal blocking of all ScoopLines

and to propose a presubscription plan for the Commission’s approval. ” Id. at 353, 773 P. 2d at

458.

¶12 The telephone company sought special action relief in the supreme court, asserting,

inter alia, that the Commission’s presubscription order violated article II, § 6. In r esponse, the

Commission first argued that the order was a r easonable utility regulation that did not significantly

affect free speech. The court disagreed, holding that “any requirement of prior subscription, even

universal presubscription, adversely affects the right to speak and publish” guaranteed by

article II, § 6. 160 Ar iz. at 357, 773 P.2d at 462.

8
See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S. Ct. 1728, 152
L. Ed. 2d 670 (2002) (acknowledging that city ordinance regulating “ adult” bookstores selling
books and videocassettes depicting sexual activities implicates First Amendment rights); Young
v. American Mini Theatres, Inc. , 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976)
(recognizing that nonobscene, sexually explicit “adult” motion pictures are protected by First
Amendment).
9
See Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 566, 111 S. Ct. 2456, 2460, 115 L. Ed.
2d 504, 511 (1991) (descr ibing nude dancing as “expr essive conduct”).

10
¶13 The Commission also argued that its order was an allowable time, place, and

manner regulation under the First Amendment. The supreme court rejected this argument as well,

declaring: “Even if we agreed with the Commission’s interpretation of the first amendment,

Arizona’s constitution does not permit the time, place, and manner regulation in question here.”

Id. As noted above, the court stated that, under article II, § 6, regulations affecting speech “must

regulate with narrow specificity so as to affect as little as possible the ability of the sender and

receiver to communicate.” 160 Ariz. at 358, 773 P.2d at 463 (emphasis added). From the

emphasized language, we conclude that the cour t adopted a different and more restrictive standard

for regulations affecting speech than the federal standar ds enunciated in Ward.

¶14 Our conclusion finds support in the supreme court’s application of this narrow

specificity standard to the regulation at issue in Mountain States. The court observed that,

although the Commission’s “presubscription requirement might be a more convenient and certain

method” of addressing the ScoopLine problems, the telephone company’s proposals for self-

imposed regulations illustrated other “plausible means” of doing so and thereby demonstrated

“that the Commission did not choose its regulation with narrow specificity. ” 160 Ar iz. at 358,

773 P.2d at 463. “ [G]overnmental convenience and certainty, ” said the cour t, “cannot pr evail

over constitutionally guaranteed rights.” Id.

¶15 We also find persuasive support for our conclusion in cases from Texas, New

York, and California, jurisdictions that, as already mentioned, have constitutional free speech

provisions similar to our own. See Faires v. Frohmiller, 49 Ar iz. 366, 372, 67 P.2d 470, 472

(1937) (decisions from states with constitutional provisions similar to our own “are very

persuasive”). Davenport, a Texas case, involved the imposition of a “gag order” similar to the

11
one in Phoenix Newspapers. Although the Texas order in Davenport involved counsel and the

Arizona order in Phoenix Newspapers involved the press, the trial judges in both cases had entered

orders prohibiting public comment or discussion about pending litigation. The supr eme courts in

both jurisdictions vacated the gag orders based on the free speech provisions of their r espective

constitutions. Our supreme court concluded that the order violated article II, § 6, stating that

“[t]here can be no censor appointed to whom the press must apply for prior permission to publish”

and citing California and Texas case law as support for that proposition. Phoenix Newspapers,

101 Ariz. at 259, 418 P.2d at 596. The Texas Supreme Court reached the same conclusion but

did so, in par t, because nothing in the gag order indicated that it was “ the least restrictive means

to prevent th[e] harm. ” Davenport, 834 S. W.2d at 10. The court noted that the order offer ed “no

explanation of why [the] harm could not be sufficiently cured by remedial action” such as

“sanction[ing counsel’s] conduct” and commented that “ ‘the argument of convenience can have

no weight as against those safeguards of the constitution.’” Id. at 11, quoting Ex parte

McCormick, 88 S. W.2d 104, 107 (Tex. Crim. App. 1935).

¶16 In the New York case of Time Square Books, Inc. v. City of Rochester, 645

N.Y.S. 2d 951 (N.Y. App. Div. 1996), a municipal ordinance requir ed adult businesses to have

open, rather than closed, booths for viewing nonobscene, sexually explicit motion pictures. The

municipality had adopted the ordinance to reduce the transmission of sexually related diseases,

having found that the patrons of such businesses had used closed booths for high-risk sexual

activity. On appeal, the cour t reversed the tr ial court’s refusal to issue a preliminar y injunction

to enjoin the ordinance’s enforcement, finding that the business owners had, based on “the broad

degree of protection afforded free expression” by the state’s constitution, “ made a prima facie

12
showing of their right to relief sufficient to warrant the issuance of a preliminary injunction. ” Id.

at 955. The court determined that the municipality had “failed to demonstrate that the open booth

requirement . . . [was] no broader than necessary to accomplish [its] objective of preventing . . .

sexually transmitted diseases.” Id. at 956. The court found that “[l]ess restrictive alternatives . . .

[were] available to serve th[e] objective” and that the municipality had “offered no evidence

suggesting that those less restrictive alternatives would be any less effective in meeting the[]

objective than opening the booths to public view.” Id.; see also People ex rel. Arcara v. Cloud

Books, Inc., 503 N.E.2d 492 (N.Y. 1986) (in seeking to close adult book store, state had burden

to show it had chosen course no broader than necessary to accomplish its purpose); cf. Town of

Islip v. Caviglia, 542 N.Y. S.2d 139 (N. Y. 1989) (state constitution’s free expr ession provision

not violated by zoning ordinance that addressed adult uses when ordinance did not operate as prior

restraint and adverse effects of such uses on neighboring properties not subject to direct attack

through injunction or criminal proceedings).

¶17 And, in the California case of People v. Glaze, 614 P.2d 291 (Cal. 1980), the court

struck down a municipal closing ordinance similar to the closing statute at issue here as violative

of the state constitution. 10 The municipal ordinance required arcades showing adult motion

pictures to close between the hours of 2:00 a. m. and 9: 00 a.m. and had been enacted to help

“pr event masturbation during those hours when law enforcement problems [were] greatest. ” Id.

10
Although Glaze refers gener ally to “F irst Amendment rights,” the court made clear that
it was considering only “whether the challenged [ordinance] is consistent with the California
Constitution” but, “ in keeping with convention, [referr ed to] the free speech rights at stake . . .
as First Amendment rights.” 614 P.2d at 293 n.2. We have not adopted that convention in this
decision.

13
at 295. In declaring the ordinance unconstitutional under article I, § 2 of the Califor nia

Constitution, the court held that the municipality had failed to meet its burden of showing “that

the closing-hours-requirement [was] necessary or that it [was] the least restrictive means available

to curb anticipated masturbation. ” Glaze, 614 P.2d at 296. The court pointed out that the

government could address the problem directly “by ar resting and prosecuting” the offenders, id.

at 295; by requiring that “a licensed manager be present to supervise the premises,” id. at 296;

or by prohibiting “an owner from knowingly allowing lewd conduct to occur.” Id. at 296 n. 6.

The court also rejected the municipality’s argument that the limited number of police available

during the early morning hour s made the closing-hours requirement necessary, observing that

governmental “‘convenience’” cannot “‘r estrict unnecessarily a lawful occupation,’” especially

when “F irst Amendment rights are involved.” Id. at 295-96, quoting Skaggs v. City of Oakland,

57 P.2d 478, 480 (Cal. 1936).

¶18 The trial court in this case found, based on the record befor e it, that the effects of

adult businesses included “increased crime and sexually oriented litter” as well as “the negative

effect on neighboring proper ty values.” The court also found that the primary pur pose of § 13-

1422 “is to regulate [those] negative secondary effects.” The court further found that the statute’s

closing-hours requirement met “the ‘narrow specificity’ requirement” of Mountain States.

¶19 Empress does not challenge the trial court’s first two findings, and the record

before us reasonably supports them. Instead, Empress argues that § 13-1422 is not drawn with

the requisite narr ow specificity, contending the legislature could have dr afted restrictions that

target the negative secondary effects more directly. We agree. The legislative history shows that

legislators considered testimony, letters, and surveys linking prostitution and other cr imes to adult

14
businesses, but that history is devoid of any evidence or consideration about less restrictive means

of dealing with those crimes, such as increased enforcement of existing criminal statutes that

prohibit loitering, A.R. S. § 13-2905; prostitution, A.R. S. §§ 13-3201 through 13-3214; and

criminal or public nuisances. A.R. S. §§ 13-2908 and 13-2917; see Glaze.

¶20 And, although legislative testimony showed increased sexually oriented litter

associated with adult businesses, litter contr ol cannot justify restrictions on freedom of expression.

In New Times, our supreme cour t held unconstitutional a university regulation that limited the

number of newsstands for distributing off-campus newspapers and imposed a fee for each

newsstand. The only reason the university advanced for the regulation was “to limit the amount

of litter resulting from the disposal of newspapers and to cover the additional cleanup costs

involved.” New Times, 110 Ar iz. at 372, 519 P.2d at 174. Relying on Schneider v. New Jersey,

308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939), and Martin v. City of Struthers, 319 U.S.

141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943), the court stated that “the problem of litter control is

not of sufficient importance to balance the risk of abridging First Amendment freedoms. . . . [The

university] clearly has the power to regulate the conduct of those who actually cause the litter

rather than the publishers of such newspapers. ” New Times, 110 Ariz. at 372, 519 P.2d at 174;

see also A.R. S. § 13-1603 (prohibiting littering).

¶21 The record befor e us thus demonstrates that the closing-hours requirement of § 13-

1422 provides a convenient, but not the least restrictive means, of curbing the negative effects of

adult speech. Rather, the requirement bans such speech for not less than seven hours a day and,

thus, during those hours, “ erects a direct barrier to communication.” Mountain States, 160 Ariz.

at 358, 773 P.2d at 463. We cannot say, therefore, that § 13-1422 affects adult speech “as little

15
as possible.” Mountain States, 160 Ar iz. at 358, 773 P.2d at 463. Accor dingly, although the

statute may not offend the First Amendment of the United States Constitution, we hold that § 13-

1422 fails to satisfy the narrow specificity requirement of Mountain States and, accordingly, as

to adult speech, violates article II, § 6 of the Arizona Constitution.

Expressive Conduct

¶22 Empress contends the protection of article II, § 6 also extends to such expressive

conduct as the nonobscene, sexually explicit live performances and nude dancing (collectively,

nude dancing) that § 13-1422 encompasses. Empr ess relies on State v. Western, 168 Ar iz. 169,

173, 812 P.2d 987, 991 (1991), in which our supreme cour t held that the First Amendment

protects “non-obscene dancing at locations that do not serve alcohol” ; see also State v. Jones, 177

Ariz. 94, 99, 865 P.2d 138, 143 (App. 1993) (“even nude dancing enjoys some protection” under

First Amendment); Wortham v. City of Tucson, 128 Ar iz. 137, 140, 624 P.2d 334, 337 (App.

1980) (nude or partially nude dancing “ may be protected by the First Amendment”). Empress

thus argues that “ the more stringent protections of the Arizona Constitution should also protect

such nonobscene nude dancing.” We have found no Arizona case holding that article II, § 6

affords greater pr otection to nude dancing than does the First Amendment and, therefore, as with

adult speech, we look for guidance to other state decisions construing similar constitutional

provisions. See Faires.

¶23 Because its constitution has an identical provision, we look first to the State of

Washington. See State v. Reinhold, 123 Ar iz. 50, 597 P.2d 532 (1979) (deference accorded

recent Washington cases interpreting identical provision of its state constitution); Solana Land Co.

v. Murphey, 69 Ar iz. 117, 210 P.2d 593 (1949) (opinions of Washington Supreme Court

16
peculiarly persuasive when our constitutional provision obviously copied from that state’s

constitution). In the case of Ino Ino, Inc. v. City of Bellevue, 937 P.2d 154 (Wash. 1997), the

court upheld the constitutionality of a city ordinance that regulated, in part, the operational hours

of adult cabarets featuring nude or sexually explicit dancing. The court determined that such

expressive conduct did not warrant “application of the more protective time, place, and manner

analysis developed under art. I, § 5 of the state constitution,” 937 P.2d at 166, because “ nude

dancing ‘clings to the edge of protected expression, ’” id. at 163, quoting JJR, Inc. v. City of

Seattle, 891 P.2d 720, 724 (Wash. 1995), and because “ art. I, § 5 mentions only the right to

speak, write and publish. ” 937 P.2d at 163. The court thus applied the federal standard

enunciated in United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968),

for determining the constitutionality of such expressive conduct as nude dancing. This standard

requires that a restriction on such conduct be “no greater than is essential to the furtherance of [an

important or substantial governmental interest]. ” Id. at 377, 88 S. Ct. at 1679, 20 L. Ed. 2d at

680. Based on this standard, the Washington court found the city ordinance constitutionally valid

because its “restrictions on First Amendment freedoms [were] no greater than essential to the

furtherance of the city’s interest.” Ino, 937 P.2d at 172.

¶24 The Colorado Supreme Cour t reached a similar result in 7250 Corp. v. Board of

County Commissioners, 799 P.2d 917 (Colo. 1990), which also involved an ordinance restr icting

live nude entertainment to certain hours of the day. There, as in Ino, the cour t applied O’Brien

to determine the ordinance’s constitutionality. After finding the restrictions were no “greater than

are essential” to further “ the governmental objective of preserving the character and quality of

residential neighborhoods, ” 7250 Corp., 799 P.2d at 926, the court held that the ordinance did

17
not “unconstitutionally abridge the First Amendment . . . or Article II, section 10 of the Colorado

Constitution.” 11 799 P.2d at 928.

¶25 Likewise, in Tily B., Inc. v. City of Newport Beach, 81 Cal. Rptr . 2d 6 (Ct. App.

1998), the court concluded that a city ordinance prohibiting total nudity in an adult-oriented

business was constitutional under both the California and United States Constitutions. Following

the Supreme Court’s lead in Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 111 S. Ct. 2456, 115

L. Ed. 2d 504 (1991), the California court applied O’Brien and found the ordinance “ content

neutral, since the city [sought] to combat the secondary effects of adult businesses, not suppress

expression. And, like the identical provision in Barnes, the ‘requirement that the dancers wear

at least pasties and G-strings is modest, and the bar e minimum necessary to achieve the [city’s]

purpose. ’” Tily, 81 Cal. Rptr . 2d at 17, quoting Barnes, 501 U.S. at 572, 111 S. Ct. at 2463, 115

L. Ed. 2d at 515.

¶26 To our knowledge, two other courts have applied O’Brien or Barnes to determine

whether restrictions on nude dancing violated their state constitutions. In Knudtson v. City of

Coates, 519 N.W. 2d 166, 169 (Minn. 1994), the court upheld an ordinance requiring “minimal

covering of sexually explicit body parts,” finding that this “curtailment of free expression [was]

nominal and incidental and insufficient to cancel the public welfare concerns of the community. ”

Similarly, the court in Junction 615, Inc. v. Ohio Liquor Control Commission, 732 N.E.2d 1025,

1031 (Ohio Ct. App. 1999), upheld a state r estriction on public nudity in liquor establishments,

11
The relevant part of ar ticle II, § 10 of the Colorado Constitution contains language similar
to our article II, § 6, providing that “every person shall be free to speak, wr ite or publish
whatever he will on any subject, being responsible for all abuse of that liberty. ”

18
observing that it “d[id] not restrict First Amendment rights any more than necessary” and that the

“free speech guarantees accorded by the Ohio Constitution are no broader than the First

Amendment.” 12

¶27 Courts other than those in Ino and Junction 615 have likewise equated their state

free speech provisions to the First Amendment when evaluating the constitutionality of restrictions

on nude dancing. The court did so in City of Daytona Beach v. Del Percio, 476 So. 2d 197 (Fla.

1985), when considering the constitutionality of a city ordinance prohibiting topless dancing in

barrooms. After “[a]ssuming that Florida’s constitutional protection of nude barroom dancing

[wa]s coextensive with the federal protections, ” the cour t concluded that the city’s findings, which

indicated “nude dancing . . . contribute[d] to criminal activities,” pr ovided “sufficient evidence

to support the [ordinance’s] incidental burden on speech.” Id. at 203-04. And, in the oft-cited

case of Bellanca v. New York State Liquor Authority, 429 N.E.2d 765, 768 (N.Y. 1981), the court

stated that, “ at the very least, the guarantee of freedom of expr ession set forth in our State

Constitution is of no lesser vitality than that set forth in the Federal Constitution.” But, unlike the

Daytona Beach court, the Bellanca court held that a complete ban on topless dancing in liquor

establishments was unconstitutional because there had been “no legislative findings” warranting

the conclusion that the “ban is sufficiently functionally related to the exercise of the State’s police

power.” Bellanca, 429 N.E.2d at 769. The court in City of Billings v. Laedeke, 805 P.2d 1348,

1352 (Mont. 1991), however , adopted the analysis in Daytona Beach and concluded its state

12
Cf. Harris v. Entertainment Sys., Inc. , 386 S. E.2d 140 (Ga. 1989) (deter mining that
statute prohibiting nudity in barrooms also applied to other establishments and, thus, holding,
apparently under O’Brien, that statute substantially infringed on other protected expression).

19
constitution provided no “greater state protection of nude and semi-nude dancing . . . than what

is afforded by the United States Constitution.” The court thus upheld a city ordinance prohibiting

nude dancing as “constitutionally sound under the Montana Constitution.” Billings, 805 P. 2d at

1352.

¶28 We have found but one jurisdiction that has decided its state constitution provides

greater protection to nude dancing than the First Amendment. In Commonwealth v. Sees, 373

N.E.2d 1151 (Mass. 1978), the court held that a city ordinance prohibiting such dancing in a

licensed liquor establishment was not facially unconstitutional under article 16 of the

Massachusetts Declaration of Rights but was unconstitutional as applied. 13 The court observed

that article 16 drew “no distinction between free speech in a bar and free speech on a stage” and

noted that the dancer in question had performed “ on a dance floor for the enter tainment of

patrons, ” had “not mingle[d] with other employees or with patrons,” and “ther e [was] no

contention that the performance was obscene.” Id. at 1155-56. Accordingly, the court concluded

that, “ [a]s applied to the defendant [dancer], the ordinance violate[d] art. 16.” Id. at 1156; see

also Cabaret Enters., Inc. v. Alcoholic Beverages Control Comm’n, 468 N.E.2d 612 (Mass. 1984)

(applying Sees).

¶29 Having considered the above cases and their rationale, we find more persuasive

those that have concluded, either expr essly or implicitly, that the free speech provisions of their

state constitutions give nude dancing equivalent but no greater protection than that afforded by the

First Amendment and, ther efore, reach the same conclusion about article II, § 6 of the Arizona

13
Article 16 simply states: “ The right of free speech shall not be abr idged.”

20
Constitution. As additional support for our conclusion, we note that, before the framers adopted

article II, § 6 at the 1910 constitutional convention, it was a misdemeanor for any person to

willfully and lewdly expose “his person or the private parts thereof, in any public place.” Rev.

Stat. Ariz. Terr. Penal Code § 283 (1901). Because the framers were presumably aware of

existing law, we may r easonably infer that they did not intend nude dancing to have the same

broad protection that they had expressly provided the other forms of expression enumerated in

article II, § 6. We also note that the territorial prohibition against public nudity, although

renumbered, remained unchanged after Arizona achieved statehood in 1912. Rev. Stat. Ariz.

Penal Code § 313 (1913).

¶30 Thus, as applied to such expressive conduct as nude dancing, we determine the

constitutionality of § 13-1422 under the Fir st Amendment, deeming its protections equivalent to

those provided under article II, § 6 of our state constitution. Under the First Amendment, a

governmental regulation of such expressive conduct is constitutional if the regulation

is within the constitutional power of the Government; if it furthers
an important or substantial governmental inter est; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged Fir st
Amendment freedoms is no greater than is essential to the
furtherance of that interest.

O’Brien, 391 U.S. at 377, 88 S. Ct. at 1679, 20 L. Ed. 2d at 680. 14 Using this four-part test, the

Supreme Court has twice found nude dancing regulations constitutional. In the first case, Barnes,

14
Arizona’s courts have applied O’Brien in determining whether the First Amendment
protects such forms of allegedly expressive conduct as wearing a peace officer ’s insignia, State
v. McLamb, 188 Ar iz. 1, 932 P.2d 266 (App. 1996); wagering on elections, Bird v. State, 184
Ariz. 198, 908 P.2d 12 (App. 1995); and committing prostitution by performing a sex show with
another person for compensation. State v. Taylor, 167 Ar iz. 429, 808 P.2d 314 (App. 1990).

21
an Indiana statute required that nightclub dancers wear “pasties” and “G-strings.” In upholding

the statute, the Cour t found that its enactment was “clear ly within the constitutional power of the

State,” 501 U.S. at 567, 111 S. Ct. at 2461, 115 L. Ed. 2d at 512; that the statute furthered “ a

substantial government interest in protecting order and morality, ” id. at 569, 111 S. Ct. at 2462,

115 L. Ed. 2d at 513; that this interest was “ unrelated to the suppression of free expression, ” id.

at 570, 111 S. Ct. at 2462, 115 L. Ed. 2d at 513; and that the statute’s clothing requirement was

narrowly tailored, being “ the bare minimum necessary to achieve the State’s purpose.” Id. at

572, 111 S. Ct. at 2463, 115 L. Ed. 2d at 515.

¶31 Some nine years later in City of Erie v. Pap’s A. M., 529 U.S. 277, 120 S. Ct.

1382, 146 L. Ed. 2d 265 (2000), the Court examined a city ordinance almost identical to the

Indiana statute and decided that the ordinance also satisfied O’Brien’s four-part test. In doing so,

the Court addressed the issue of whether the ordinance targeted a form of expression (nude

dancing) and was thus content based, r equiring a strict scrutiny standard, or banned only conduct

(nudity) and was thus content neutral, requiring O’Brien’s less stringent standard. Empr ess raises

the same issue here about § 13-1422, claiming the statute is content based and quoting, in support,

the following from Justice White’s dissent in Barnes: “It is only because nude dancing

performances may generate emotions and feelings of eroticism and sensuality among the spectators

that the State seeks to regulate such expressive activity. ” 501 U.S. at 592, 111 S. Ct. at 2474,

115 L. Ed. 2d at 528 (White, J. , dissenting). But, as it had in Barnes, the Court in Erie rejected

Justice White’s view, finding that the city council had adopted the regulation to reduce the

negative secondary effects associated with live nude entertainment and, thus, concluding that

“Erie’s asserted interest in combating . . . [those] effects . . . [wa]s unrelated to the suppression

22
of the erotic message conveyed by nude dancing.” 529 U.S. at 296, 120 S. Ct. at 1394, 146 L.

Ed. 2d at 282.

¶32 For the same reason, we likewise reject Empress’s claim that § 13-1422 is content

based. As noted above, the trial court found, and Empress does not dispute, that the legislature

enacted § 13-1422 primarily to address such negative secondary effects as increased crime,

sexually oriented litter, and declining property values. Hence, under Erie, the legislatur e’s

“interest in preventing [these] harmful secondary effects is not related to the suppression of

expression. ” 529 U.S. at 293, 120 S. Ct. at 1393, 146 L. Ed. 2d at 281. Empress asserts,

however, that the legislative record shows that some legislators had an improper moral motive for

enacting § 13-1422. Rejecting a similar claim in Erie, the Court stated, “[We] will not strike

down an otherwise constitutional statute on the basis of an alleged illicit motive.” 529 U.S. at

292, 120 S. Ct. at 1392, 146 L. Ed. 2d at 280. Accor dingly, as in Erie, we conclude that § 13-

1422 is content neutral as applied to nude dancing.

¶33 After concluding the Erie ordinance was content neutral, the Supreme Court

examined O’Brien’s three remaining factors for determining the ordinance’s constitutionality. In

determining it was constitutional, the Court found that the city’s “efforts to protect public health

and safety are clearly within [its] police powers, ” Erie, 529 U.S. at 296, 120 S. Ct. at 1395, 146

L. Ed. 2d at 283; that the ordinance furthered an important governmental interest of “combating

the harmful secondary effects associated with nude dancing,” id.; and that “ the restriction [wa]s

no greater than [wa]s essential to the further ance of the government interest. ” Id. at 301, 120 S.

Ct. at 1397, 146 L. Ed. 2d at 286.

23
¶34 Similarly, upon examining the same three factors, we find that our legislature has

the power to enact laws protecting the public health and safety, that § 13-1422 furthers an

important governmental interest by addressing the negative secondary effects related to nude

dancing, and that the statute’s closing-hours requirement is no greater than necessary to further

the governmental interest; it need not be the least restrictive. See Ward. As appellees point out,

§ 13-1422 allows 5,980 hour s of nude dancing annually—seventeen hours daily from Monday

through Saturday and thirteen hours on Sunday. See Schultz v. City of Cumberland, 228 F. 3d 831

(7th Cir. 2000) (upholding a more restrictive ordinance requir ing nonalcoholic bars featuring nude

dancing to close from midnight to 10:00 a. m. Monday through Saturday and all day Sunday); cf.

Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1365 (11th Cir. 1999) (holding

constitutional ordinance that required adult establishments featuring nude dancing to close from

2:00 a.m. until noon each day, finding ordinance “narrowly tailored” and afforded “ reasonable

alternative avenues of expression . . . [because] adult businesses [could] stay open fourteen hours

a day, seven days a week”). Accordingly, we hold that, as applied to such expressive conduct as

nude dancing, § 13-1422 is constitutionally valid under the First Amendment and, thus, under

article II, § 6.

Article II, § 13

¶35 Empress also challenges the constitutionality of § 13-1422 under article II, § 13 of

the Arizona Constitution. Because we have already held that the statute’s application to adult

speech renders it constitutionally invalid under article II, § 6, we need not address whether that

application likewise renders § 13-1422 unconstitutional under article II, § 13. Consequently, we

24
address only whether the statute’s application to nude dancing violates article II, § 13, the equal

protection provision of our state constitution.

¶36 Article II, § 13 pr ovides that “[n]o law shall be enacted granting to any citizen,

class of citizens, or corporation other than municipal, privileges or immunities which, upon the

same terms, shall not equally belong to all citizens or corporations.” This state provision has the

same effect as the Equal Protection Clause of the Federal Constitution. Phoenix Newspapers, Inc.

v. Purcell, 187 Ariz. 74, 927 P.2d 340 (App. 1996). Relying on Elliott v. State, 29 Ar iz. 389,

242 P. 340 (1926), Empress contends § 13-1422 violates article II, § 13 because “adult oriented

business[es] are the only businesses barred from being open during evening and Sunday morning

hours, while all other businesses are allowed to be carr ied on freely. ” Empress misreads Elliott.

Although the court there struck down a so-called Sunday closing law that required certain

businesses to close on Sunday but allowed other similar businesses to remain open that day, the

court declared the law unconstitutional under article II, § 13 because it prohibited “the exercise

of certain particular occupations, legitimate and laudable in themselves, while allowing other

businesses, not reasonably to be distinguished from those prohibited, to be carried on fr eely.”

Elliott, 29 Ariz. at 395, 242 P. at 341-42. In other words, said the court, the law granted “special

privileges and immunities to certain classes of citizens of the state, while, without legal excuse,

denying them to others. ” Id. at 397, 242 P. at 342.

¶37 Here, however, few would disagree that establishments featuring nude dancing are

reasonably and readily distinguished from those that do not. But the fact that § 13-1422 treats

nude dancing establishments differently does not mean that it denies equal protection and violates

article II, § 13. See Arizona Downs v. Arizona Horsemen’s Found., 130 Ar iz. 550, 637 P.2d

25
1053 (1981) (not unconstitutional to treat different classes in varying ways); Reinstein (equal

protection provisions do not prohibit all classifications). Whether a statute denies equal protection

“depends on its character, the individuals affected, and the asserted government purpose.” Big

D Constr. Corp. v. Court of Appeals, 163 Ar iz. 560, 566, 789 P.2d 1061, 1067 (1990).

¶38 We usually apply one of two tests to evaluate a challenged statutory classification:

a strict scrutiny test if the statute affects a suspect class or limits a fundamental right and a rational

basis test if it does not. Id.; Kenyon v. Hammer, 142 Ar iz. 69, 688 P.2d 961 (1984); Eller Media

Co. v. City of Tucson, 198 Ariz. 127, 7 P.3d 136 (App. 2000). Empress does not assert that § 13-

1422 affects a suspect class, such as gender or r ace, and we disagree with Empress’s argument

that the statute limits a fundamental right. “ A ‘fundamental right’ has generally been defined as

a right ‘explicitly or implicitly guaranteed by the constitution.’” Kenyon, 142 Ar iz. at 83, 688

P.2d at 975, quoting San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 33, 93 S. Ct. 1278,

1297, 36 L. Ed. 2d 16, 43 (1973); see State v. Watson, 198 Ar iz. 48, 6 P.3d 752 (App. 2000)

(right “fundamental” if firmly rooted in country’s history and tradition). Although our state and

federal constitutions guarantee free expression, the Supreme Court has made clear that “ nude

dancing of the type at issue here is expressive conduct . . . that falls only within the outer ambit

of the First Amendment’s protection. ” Erie, 529 U.S. at 289, 120 S. Ct. at 1391, 146 L. Ed. 2d

at 278; see Barnes (nude dancing within outer perimeters of First Amendment, though marginally

so). Consequently, if a legislative regulation is content neutral, as we have already found § 13-

1422 to be, “then the r egulation need only satisfy the ‘less stringent’ standard from O’Brien for

evaluating restrictions on symbolic speech. ” Erie, 529 U.S. at 289, 120 S. Ct. at 1391, 146

26
L. Ed. 2d at 278. We thus apply the r ational basis test to evaluate the classification created by

§ 13-1422.

¶39 Under the rational basis test, a legislative enactment “must be rationally and

reasonably related to furthering some legitimate governmental interest. ” Big D, 163 Ar iz. at 566,

789 P.2d at 1067; see City of Tucson v. Wolfe, 185 Ariz. 563, 917 P.2d 706 (App. 1995)

(ordinance must serve important governmental objective). In other words, “[t]he guarantee of

equal protection is violated only if a classification rests on grounds wholly irrelevant to the

achievement of the state’s objective.” Eller, 198 Ar iz. 127, ¶9, 7 P.3d 136, ¶ 9. Moreover, the

party challenging the statute has the burden of establishing that it is arbitrary or irrational. See

Reinstein, 195 Ariz. 293, ¶ 52, 987 P.2d 779, ¶52 (party challenging constitutionality of statute

has burden of establishing that there is “no conceivable basis” for it); Purcell (same). Empr ess,

however, has neither argued nor established that here. Further more, as noted above, the

legislature enacted § 13-1422 to curb the negative secondary effects associated with nude dancing

establishments, and that, in our opinion, constitutes a legitimate purpose for the statute. See City

of Tucson v. Grezaffi, 200 Ar iz. 130, 23 P.3d 675 (App. 2001) (smoking ordinance reasonable,

legitimate means of safeguarding community’s health, safety, and welfare).

¶40 The rational basis test next requires that we “ determine if it is reasonable to believe

that the classification will promote that purpose.” Big D, 163 Ar iz. at 566, 789 P.2d at 1067; see

Eller (under rational basis test, law upheld if facts support conclusion that classification rationally

furthers legitimate state interest). Based on the recor d before us, we reasonably believe that the

closing-hours requirement of § 13-1422 will promote its stated purpose. “A per fect fit is not

required; a statute that has a rational basis will not be overturned ‘merely because it is not made

27
with “mathematical nicety, or because in practice it results in some inequality.” ’” Big D, 163

Ariz. at 566, 789 P.2d at 1067, quoting Bryant v. Continental Conveyor & Equip. Co. 156 Ariz.

193, 197, 751 P.2d 509, 513 (1988), quoting Uhlmann v. Wren, 97 Ariz. 366, 388, 401 P.2d 113,

128 (1965); see State v. Hammonds, 192 Ar iz. 528, ¶11, 968 P.2d 601, ¶ 11 (App. 1998)

(legislature not required to for ego measure “ simply because it may be somewhat imprecise”).

Accordingly, as applied to nude dancing, § 13-1422 does not violate ar ticle II, § 13 of the Arizona

Constitution.

Severance

¶41 Because we have declared § 13-1422 constitutionally invalid as applied to adult

speech but constitutionally valid as applied to nude dancing, we must determine whether the valid

portion can be severed from the invalid portion. “An entire statute need not be declared

unconstitutional if constitutional portions can be separated. ” Republic Inv. Fund I v. Town of

Surprise, 166 Ariz. 143, 151, 800 P.2d 1251, 1259 (1990); see State v. Prentiss, 163 Ariz. 81,

786 P.2d 932 (1989) (court should not declare entire statute unconstitutional if constitutional and

unconstitutional portions can be severed). “ The test for severability r equires ascertaining

legislative intent.” Republic, 166 Ar iz. at 151, 800 P.2d at 1259. But, “if there is no clear record

of legislative objective and intent, the most reliable evidence of that intent is the language of the

statute.” Prentiss, 163 Ar iz. at 86, 786 P.2d at 937.

¶42 The supreme court established the following test for severability in Selective Life

Insurance Co. v. Equitable Life Assurance Society, 101 Ar iz. 594, 599, 422 P.2d 710, 715 (1967):

[W]here the valid parts of a statute are effective and enforceable
standing alone and independent of those portions declared
unconstitutional, the court will not disturb the valid law if the valid

28
 and invalid portions are not so intimately connected as to raise the
presumption the legislature would not have enacted one without the
other, and the invalid portion was not the inducement of the act.

Applying this test to the adult establishments listed in § 13-1422, and utilizing the specific

definitions of those establishments in § 11-821, we find that the valid and invalid portions of § 13-

1422 are not so connected and interdependent that the valid portion cannot stand alone.

¶43 Section 13-1422 lists the following adult establishments at issue here: adult arcade,

adult bookstore or video store, adult motion picture theater, and adult theater. 15 But, as defined

in § 11-821(H)(9), only an adult theater features nude dancing, that is, “ persons who appear in

a state of nudity or who engage in live performances that are characterized by the exposur e of

specific anatomical areas or specific sexual activities.” By definition, none of the other

establishments features nude dancing. An adult bookstor e or video store sells or rents such items

as sexually explicit books, magazines, periodicals, photographs, films, motion pictures, and

videocassettes, § 11-821(H)(2), and an adult arcade or adult movie theater allows the viewing of

sexually explicit motion pictures, films, videocassettes, or images. § 11-821(H)(1) and (4). Thus,

if we strike adult arcade, adult bookstore or video store, and adult motion pictur e theater from

§ 13-1422, the invalid por tions pertaining to adult speech, we leave adult theater, the valid portion

pertaining to nude dancing. This neither strips meaning from the remainder of the statute nor

renders it logically incomplete. The invalid portions are, therefore, severable from the remainder

of § 13-1422, and the remaining valid portion remains in force.

15
Although § 13-1422 also lists adult cabaret, escort agency, and nude model studio, this
decision has no application to such establishments. As stated in footnote two, Empress does not
operate as an escort agency or nude model studio and, because Empr ess does not serve alcoholic
beverages, it is not an adult cabaret, as defined in § 13-1422(D)(3).

29
 Conclusion

¶44 For the foregoing reasons, we hold that the application of § 13-1422 to an adult

theater, as defined in § 11-821, does not violate article II, § 6 or § 13 of the Arizona Constitution.

We further hold, however, that the application of § 13-1422 to an adult arcade, adult bookstore

or video store, and adult motion picture theater, as they are defined in § 11-821, does violate

article II, § 6 of our constitution. The closing-hours requir ement of § 13-1422 is thus valid and

enforceable as applied to an adult theater and invalid and unenforceable as applied to an adult

arcade, adult bookstore or video store, and adult motion picture theater. Accordingly, as to the

valid, enforceable application of § 13-1422, we affirm the trial court’s granting of declaratory

judgment in favor of appellees and denying injunctive relief to Empress. But, as to the invalid,

unenforceable application of the statute, we reverse the trial court and direct that it enter

declaratory judgment and injunctive relief in favor of Empress.

_______________________________________
WILLIAM E. DRUKE, Pr esiding Judge

CONCURRING:

_______________________________________
JOSEPH W. HOWARD, Judge

E S P I N O S A, Chief Judge, dissenting in part, concur ring in part.

30
 I respectfully dissent from the first portion of the opinion dealing with “adult

speech” because I find no error in the trial court’s determination that § 13-1422 comports with the

requirements of article II, § 6 of the Arizona Constitution and Mountain States, to the extent that

opinion may apply to the facts of this case. I concur in the r emainder of the opinion.

_______________________________________
PHILIP G. ESPINOSA, Chief Judge

31