130 Nev., Advance Opinion 73
IN THE SUPREME COURT OF THE STATE OF NEVADA
DEJA VU SHOWGIRLS OF LAS No. 60037
VEGAS, LLC, A NEVADA LIMITED
LIABILITY COMPANY, D/B/A DEJA VU
SHOWGIRLS; LITTLE DARLINGS OF
LAS VEGAS, D/B/A LITTLE
MED
DARLINGS; K-KEL, INC., D/l3/A SEP 1 8 2014
SPEARMINT RHINO GENTLEMEN'S
CLUB; OLYMPUS GARDEN, INC.,
D/B/A OLYMPUS GARDEN; SHAC, thaer GE
LLC, D/WA SAPPHIRE; THE POWER
COMPANY, INC., D/B/A CRAZY HORSE
TOO GENTLEMEN'S CLUB; AND D.
WESTWOOD, INC., DTB/A
TREASURES,
Appellants,
vs.
NEVADA DEPARTMENT OF
TAXATION; NEVADA TAX
COMMISSION; AND THE STATE OF
NEVADA BOARD OF EXAMINERS,
Respondents.
Appeal from a district court summary judgment rejecting a
facial challenge to the constitutionality of Nevada's Live Entertainment
Tax and denying injunctive relief as to the enforcement of that tax.
Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez,
Judge.
Affirmed.
Lambrose Brown and William H. Brown, Las Vegas; Shafer and
Associates and Bradley J. Shafer, Lansing, Michigan,
for Appellants Deja Vu Showgirls of Las Vegas, LLC; Little Darlings of
Las Vegas; K-Kel, Inc.; Olympus Garden, Inc.; The Power Company, Inc.;
and D. Westwood, Inc.
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Greenberg Traurig, LLP, and Mark E. Ferrario and Brandon E. Roos, Las
Vegas,
for Appellant SHAC, LLC.
Catherine Cortez Masto, Attorney General, Blake A. Doerr and David J.
Pope, Senior Deputy Attorneys General, and Vivienne Rakowsky, Deputy
Attorney General, Carson City,
for Respondents.
BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
In this opinion, we consider whether, on its face, Nevada's
Live Entertainment Tax violates free speech rights under Article 1,
Section 9 of the Nevada Constitution or the First Amendment to the
United States Constitution. We also address whether the district court
was required to entertain appellants' as-applied challenge to the Tax when
they failed to exhaust their administrative remedies on that issue.
Regarding appellants' facial challenge, we conclude that the Tax does not
violate the First Amendment as related to speech (i.e., dance), and we
therefore affirm the district court's summary judgment as to this issue. As
for appellants' as-applied challenge, we hold that appellants were required
to exhaust their administrative remedies on this issue before seeking
relief in the district court, and thus, we affirm the district court's
dismissal of the as-applied challenge for lack of subject matter jurisdiction.
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BACKGROUND
In 2003, the Nevada Legislature enacted the Live
Entertainment Tax, which imposes an excise tax on certain business
transactions completed at facilities providing "live entertainment." See
NRS 368A.200(1). 'Live entertainment' means any activity provided for
pleasure, enjoyment, recreation, relaxation, diversion or other similar
purpose by a person or persons who are physically present when providing
that activity to a patron or group of patrons who are physically present."
NRS 368A.090(1). Nevada's Live Entertainment Tax (NLET) imposes a
ten-percent tax on any amounts paid for admission and for food,
refreshments, and merchandise provided within a live-entertainment
facility having a maximum occupancy of less than 7,500 persons. NRS
368A.200(1). When a live-entertainment facility has a maximum
occupancy of at least 7,500 persons, however, NLET only imposes a five-
percent tax on admission charges. Id.
At its inception, NLET provided ten exemptions dependent on,
inter alia, the location and size of a facility providing live entertainment,
the entity status of a provider, 1- and, in several instances, the type of
entertainment provided. 2 NRS 368A.200(5) (2003). Among other things,
the 2003 version of NLET included an exemption for "[Wye entertainment
that [was] not provided at a licensed gaming establishment if the facility
INLET exempted "Wive entertainment that is provided by or
entirely for the benefit of a nonprofit religious, charitable, fraternal or
other organization that qualifies as a tax-exempt organization. . . ." from
being subject to the tax. NRS 368A.200(5)(b) (2003).
2 NLET also exempted "[a]ny boxing contest or exhibition governed
by the provisions of chapter 467 of NRS" from being subject to the tax. See
NRS 368A.200(5)(c) (2003).
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in which the live entertainment [was] provided [had] a maximum seating
capacity of less than 300." NRS 368A.200(5)(d) (2003). The initial
statutory scheme also provided an exemption for gaming establishments
"licensed for less than 51 slot machines, less than six games, or any
combination of slot machines and games within those respective limits, if
the facility in which the live entertainment [was] provided [had] a
maximum seating capacity of less than 300." NRS 368A.200(5)(e) (2003).
Since its enactment, the Legislature has amended NLET's
provisions on multiple occasions. In 2005, the Legislature, among other
things, created eight exceptions to NLET's definition of "live
entertainment." 3 NRS 368A.090(2)(b) (2005). Additionally, the
Legislature changed the maximum seating capacity language in NRS
368A.200(5)(d)-(e) (2003) to "maximum occupancy," and reduced that
provision's occupancy from 300 to 200. NRS 368A.200(5)(d)-(e) (2005).
The Legislature also added six new exemptions, including exempting
certain National Association for Stock Car Auto Racing (NASCAR) events
from being subject to the tax. NRS 368A.200(5)(k)-(p) (2005). Two years
later, the Legislature added another exemption from the tax for
professional minor league baseball contests, events, and exhibitions. NRS
368A.200(5)(p) (2007). 4
3 For example, the statute was amended to exclude "[t] elevision,
radio, closed circuit or Internet broadcasts of live entertainment" and
"[a]nimal behaviors induced by animal trainers or caretakers primarily for
the purpose of education and scientific research" from NLET's definition of
"live entertainment." NRS 368A.090(2)(b)(5), (7) (2005).
4 In
the Legislature's 2007 amendment, NRS 368A.200(5)(p) (2005)
was moved to NRS 368A.200(5)(q), with the baseball exemption
designated as NRS 368A.200(p). 2007 Nev. Stat., ch. 547, § 1, at 3434.
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In April 2006, appellants, which are all exotic dancing
establishments, filed suit against respondents in the United States
District Court for the District of Nevada seeking a declaration that NLET
is facially unconstitutional for violating the First Amendment to the
United States Constitution, an injunction against its enforcement, and a
refund of all taxes paid under the statute. The federal district court later
dismissed this action on respondents' motion, concluding that appellants
had failed to show that Nevada's state court and administrative systems
deprived them of a plain, speedy, and efficient remedy. Appellants
appealed that decision to the United States Court of Appeals for the Ninth
Circuit, which later affirmed the lower court's determination.
While the appeal of the dismissal of their federal action was
still pending before the Ninth Circuit, appellants filed a de novo action in
the Eighth Judicial District Court seeking a declaration that NLET is
facially unconstitutional, injunctive relief, a refund of all taxes paid under
NLET, and attorney fees and costs (Case 1). Appellants later amended
their complaint in Case 1 to include an as-applied constitutional challenge
to NLET. Even though Case 1 was pending in the district court,
appellants K-Kel, Olympus Garden, SHAC, The Power Company, and D.
Westwood filed individual tax refund requests with the Nevada
Department of Taxation pursuant to NRS 368A.260(1) on the ground that
NLET was facially unconstitutional under the First Amendment. The
Department later denied these refund requests and the Nevada Tax
Commission affirmed the Department's decision by a written order
entered on October 12, 2007, determining that NLET was facially
constitutional.
Based on the Department's and Commission's denials of their
refund requests, appellants filed a second de novo action in the Eighth
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Judicial District Court on January 9, 2008 (Case 2). In this complaint,
appellants argued that NLET was facially unconstitutional and sought a
refund, declaratory and injunctive relief, and damages. Nearly three
years later, appellants amended their Case 2 complaint to include an as-
applied challenge to NLET. The district court then entered an order
coordinating Cases 1 and 2 and consolidating their declaratory relief
claims.
After hearing arguments on respondents' re-noticed motion for
partial summary judgment and motion to dismiss the as-applied
challenge, the district court entered an order limiting Case 1 to only
appellants' facial challenge to NLET and permanent injunction request.
In doing so, the district court dismissed the pending as-applied challenge
in Case 1 for lack of subject matter jurisdiction based on appellants'
failure to exhaust their administrative remedies and dismissed Case 2 in
its entirety, also on subject matter jurisdiction grounds, because
appellants had filed a de novo action instead of a petition for judicial
review per NRS 233B.130. Appellants subsequently appealed the
dismissal of Case 2 to this court, and that appeal is before us in the
companion case addressed in Deja Vu Showgirls v. State, Department of
Taxation (Deja Vu I), 130 Nev. , P.3d (Adv. Op. No. 72,
September 18, 2014).
Appellants and respondents ultimately filed competing
motions for summary judgment on the remaining issues in Case 1. The
district court granted respondents' summary judgment motion, denying
appellants' summary judgment motion in the process. The district court
concluded that NLET did not facially violate the First Amendment
because it is a content-neutral and generally applicable tax that does not
target constitutionally protected activity. In making its determination,
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the district court only considered the statute's language. Additionally, as
a consequence of its decision, the district court necessarily rejected
appellants' request for a permanent injunction.
DISCUSSION
I.
We first address whether the district court erred by dismissing
appellants' as-applied challenge from Case 1 for lack of subject matter
jurisdiction.
In Nevada, a district court lacks subject matter jurisdiction to
consider a taxpayer's claim for judicial relief unless that taxpayer has
exhausted its administrative remedies. State v. Scotsman Mfg. Co., Inc.,
109 Nev. 252, 254, 849 P.2d 317, 319 (1993). 5 We have recognized limited
exceptions to that rule, however, when a statute's interpretation or
constitutionality is at issue, or when the initiation of administrative
proceedings would be futile. Id. at 255, 849 P.2d at 319. With those
exceptions in mind, appellants contend that the district court improperly
dismissed their as-applied challenge to NLET because that challenge
involved constitutional issues. 6 Whether the district court erred by
5Scotsman uses "subject matter jurisdiction" with reference to a
party's failure to exhaust administrative remedies. We note but do not
decide the question of whether the failure to exhaust administrative
remedies is jurisdictional or a claim prerequisite. See II Richard J. Pierce,
Jr., Administrative Law Treatise §§ 15.2, 15.3 (5th ed. 2010 & Supp. 2014).
6 We reject appellants' assertion that initiating administrative
proceedings for their as-applied constitutional challenge to NLET before
the Department would have been futile because they offer no cogent
argument. See Berkson v. LePome, 126 Nev. „ 245 P.3d 560, 566
(2010) (stating that "[it is well established that this court need not
consider issues not supported by cogent argument. . ."). Appellants' one-
sentence argument on this issue does not support the proposition that the
continued on next page . . .
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dismissing appellants' as-applied challenge for lack of subject matter
jurisdiction is a question of law that we review de novo. See Ogawa v.
Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009).
It is undisputed that appellants failed to exhaust their
administrative remedies for their as-applied constitutional challenge. And
while appellants argue that there is a general exception for claims
involving constitutional issues, this argument ignores the distinction
drawn by Nevada authority between facial and as-applied challenges in
this context. See Malecon Tobacco, L.L.C. v. State ex rel. Dep't of Taxation,
118 Nev. 837, 841, 59 P.3d 474, 477 (2002). While facial constitutional
challenges may bypass the administrative exhaustion requirement, we
have held that as-applied constitutional challenges hinging on factual
determinations cannot. Id. In making that determination, we reasoned
that given an agency's expertise in the area of the dispute, it is in the best
position to make the factual determinations necessary to resolve that
dispute. See id. at 840-41, 59 P.3d at 476-77. Thus, because appellants
failed to raise their as-applied challenge to NLET before the
Department—a challenge that hinges on factual determinations not yet
made—we conclude that they were required to exhaust their
administrative remedies, and therefore, we affirm the district court's
dismissal of appellants' as-applied challenge.
. . . continued
Department, having never had appellants' as-applied challenge before it,
would not have fully considered that challenge if it had been properly
raised.
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With appellants' as-applied challenge no longer before us, we
now consider whether NLET is facially unconstitutional for violating free
speech rights (i.e., dance) under Article 1, Section 9 of the Nevada
Constitution or the First Amendment to the United States Constitution. 7
This court reviews constitutional challenges to a statute de
novo. Busefink v. State, 128 Nev. „ 286 P.3d 599, 602 (2012). In
the First Amendment context, there is a "strong presumption in favor of
duly enacted taxation schemes." Leathers v. Medlock, 499 U.S. 439, 451
(1991). As the Supreme Court has stated, "Inherent in the power to tax is
the power to discriminate in taxation," and thus, "[1] egislatures have
especially broad latitude in creating classifications and distinctions in tax
statutes." Id. (internal quotation omitted). Accordingly, in such
circumstances, a statute's "presumption of constitutionality can be
overcome only by the most explicit demonstration that a classification is a
hostile and oppressive discrimination against particular persons and
classes." Id. at 451-52 (internal quotations omitted).
When making a facial challenge to a statute, the challenger
generally bears the burden of demonstrating that there is no set of
circumstances under which the statute would be valid. See Busefink, 128
Nev. at , 286 P.3d at 602. But if a court concludes that a heightened
'We note that Article 1, Section 9 of the Nevada Constitution
"affords no greater protection to speech activity than does the First
Amendment to the United States Constitution." Univ. & Cmty. Coll. Sys.
of Nev. v. Nevadans for Sound Gov't, 120 Nev. 712, 722, 100 P.3d 179, 187
(2004). Accordingly, our resolution of appellants' challenge to NLET based
on the United States Constitution also resolves appellants' challenge
under the Nevada Constitution.
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level of scrutiny applies, the general presumption regarding a statute's
constitutionality is reversed, and the State bears the burden of
demonstrating the statute's constitutionality. 8 See United States v.
Playboy Entm't Grp., Inc., 529 U.S. 803, 817 (2000). With the
aforementioned standards in mind, our analysis will focus on determining
what level of scrutiny applies in our review of NLET's constitutionality.
A.
Before reaching the heart of this appeal, we must first dispose
of appellants' assertion that, under Murdock v. Pennsylvania, 319 U.S. 105
(1943), NLET violates the First Amendment because it directly taxes live
entertainment, which they maintain is categorically protected under the
First Amendment. In Murdock, multiple Jehovah's Witnesses challenged
their convictions for violating an ordinance that prohibited all soliciting
and canvassing without first obtaining a license by paying a flat license
tax. 319 U.S. at 106-07. In concluding that the ordinance was
unconstitutional as applied to the petitioners, and therefore reversing
their convictions, the Supreme Court recognized that "a person cannot be
compelled to purchase, through a license fee or a license tax, the privilege
freely granted by the constitution." Id. at 114 (internal quotation
omitted).
8Although not discussed by the parties, we note that appellants'
allegation that NRS 368A.200 violates the First Amendment satisfies the
preliminary state actor requirement. See S.O.C., Inc. v. Mirage Casino-
Hotel, 117 Nev. 403, 409-10, 23 P.3d 243, 247 (2001) (explaining that the
First Amendment, applied to the states through the Fourteenth
Amendment, only provides protection from a government's abridgment of
free speech rights).
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Appellants' interpretation and application of the Murdock case
to NLET is fundamentally flawed. First, the tax at issue in Murdock was
a flat license tax, which was required to be paid before the petitioners in
that case could exercise •their rights under the First Amendment. The
Supreme Court specifically distinguished that kind of tax from taxes on
income, property, and other taxes that relate to the scope of activities or
realized revenues. Id. at 112-13. Appellants' attempt to expand the
applicability of Murdock's holding to NLET, which is an excise tax on
admission fees and the sale of certain products, disregards this distinction.
Moreover, appellants' expansion argument was expressly rejected by the
Court in a later decision that limited Murdock's holding "to apply only
where a flat license tax operates as a prior restraint on the free exercise of
religious beliefs." Jimmy Swaggart Ministries v. Bd. of Equalization of
Cal., 493 U.S. 378, 389 (1990) (holding that California's six-percent sales
tax on retail sales of personal property was not unconstitutional as applied
to a religious organization's sale of religious books, tapes, records, and
nonreligious materials).
Second, in making their facial challenge, appellants rely on
the• unsubstantiated assertion that NLET, in all of its applications,
infringes on the First Amendment by regulating protected activities
because entertainment is presumptively protected as a category. In
rejecting appellants' argument, we note that NLET does not regulate live
entertainment. Moreover, despite its misnomer, NLET does not actually
tax live entertainment. Instead, it imposes an excise tax on business
transactions which neither inhibits nor burdens the expressive conduct
occurring at live-entertainment facilities. See NRS 368A.200. Therefore,
because NLET does not operate as a prior restraint on constitutionally
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protected activities, we reject appellants' arguments on this issue. See
Jimmy Swaggart Ministries, 439 U.S. at 386.
B.
The remainder of our analysis addresses appellants'
arguments that NLET is a differential tax of speakers protected under the
First Amendment that triggers strict scrutiny because it discriminates on
the basis of the content of taxpayer speech, targets a small group of
speakers, and threatens to suppress speech. Accordingly, we will address
those arguments in that order.
Preliminarily, we recognize that the degree of protection
afforded to erotic dance under the First Amendment is uncertain. See City
of Las Vegas v. Eighth Judicial Dist. Court, 122 Nev. 1041, 1052, 146 P.3d
240, 247 (2006) ("Arguably, erotic dance is expressive conduct that
communicates, which could be deserving of some level of First Amendment
protection."). This uncertainty arises from the Supreme Court's plurality
opinion in Barnes v. Glen Theatre, Inc., which states that "nude
dancing. .. is expressive conduct within the outer perimeters of the First
Amendment," and therefore is subject to only an intermediate level of
scrutiny. 501 U.S. 560, 565-67 (1991) (emphasis added). To the extent
that nude dancing is protected under the First Amendment, we
acknowledge that "society's interest in protecting this type of expression is
of a wholly different, and lesser, magnitude than the interest in
untrammeled political debate." Young v. Am. Mini Theatres, Inc., 427 U.S.
50, 70 (1976) (plurality opinion). With that said, we note that the line of
cases that appellants rely on and that we use in the remainder of this
disposition deal exclusively with taxes on the press, which raise "concerns
about censorship of critical information and opinion." Leathers, 499 U.S.
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at 447. Accordingly, we are confident that if NLET satisfies those legal
standards, the statute is constitutional on its face.
We now turn to appellants' assertion that NLET discriminates
based on the content of taxpayer speech. Appellants contend that, in
enacting and amending NLET, the Legislature discriminated against
taxpayers providing adult-oriented entertainment and favored taxpayers
presenting family-oriented live entertainment. In making this argument,
appellants focus on NRS 368A.090's exceptions to the definition of "alive
entertainment" and NRS 368A.200(5)'s exemptions for certain live
entertainment facilities identified by their size, location, entity status, and
in some cases, the type of entertainment being provided. Appellants
allege that NLET's exemptions for NASCAR, professional baseball, and
boxing events are examples of content-based discrimination. Respondents
disagree, arguing that NLET is a generally applicable tax and not
discriminatory, and that no classifications are based on the content of
taxpayers' messages.
We begin our consideration of appellants' arguments by
emphasizing that "a tax scheme that discriminates among speakers does
not implicate the First Amendment unless it discriminates on the basis of
ideas." Leathers, 499 U.S. at 450. Thus, a tax that discriminates between
speakers on a basis other than ideas is not by itself constitutionally
suspect. To determine whether a taxing statute discriminates on the basis
of ideas, we primarily look to the statute's language and secondarily
consider the difference in the messages of those who are and are not being
taxed. See id. at 449.
For example, in Arkansas Writers' Project, Inc. v. Ragland, 481
U.S. 221 (1987), the Supreme Court looked to the language of Arkansas's
tax on receipts from sales of tangible personal property and concluded that
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the tax violated the First Amendment because it discriminated based on
the content of taxpayer speech. In reaching this conclusion, the Court
focused on the tax's content-based exemption for religious, professional,
trade, and sports publications. See id. at 224, 229-31. The Court
emphasized that Arkansas's tax "is particularly repugnant to First
Amendment principles" because "a magazine's tax status depends entirely
on its content." Id. at 229 (emphasis added).
Unlike the tax at issue in Arkansas Writers, it cannot be said
that whether a live-entertainment provider is subject to NLET depends
exclusively or even primarily on the content of the entertainment being
provided. See generally NRS 368A.090; NRS 368A.200. While NLET
exempts certain performances, the statute's language does not refer to the
content of any taxpayer's message. See Leathers, 499 U.S. at 449.
Additionally, the Supreme Court has expressed that discrimination among
taxpayers, whether those taxpayers are speakers or nonspeakers, is
inherent and permissible in creating tax classifications that allow states
the flexibility needed to fit their tax programs to local needs. See id. at
451. Although, as appellants point out, several exemptions include
speakers, i.e., NASCAR, boxing, and professional baseball events, unless
based on those speakers' ideas, such discrimination is insufficient to make
NLET constitutionally suspect. Id. at 444, 451.
Having analyzed NLET's language, we now consider the
messages of those who are and are not taxed under the statute.
Appellants argue that NLET's exemptions and exceptions are based on
family-oriented versus adult-oriented messages provided at live
entertainment facilities. This assertion lacks merit. Many facilities
providing what appellants would classify as family-oriented live
entertainment are subject to NLET, including concert venues, circuses,
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and fashion shows. Compare NRS 368A.090(2)(a), and 3684.200(1), with
NRS 368A.090(2)(b), and NRS 368A.200(5). Additionally, multiple
facilities furnishing adult-oriented live entertainment, such as boxing and
charity events, are exempted. NRS 368A.200(5)(b)-(c). Thus, facilities
subject to NLET provide a variety of entertainers who in turn bring
diverse messages. Based on NLET's language and the messages of those
who are and are not taxed under its provisions, we conclude that the
statute does not discriminate based on the content of taxpayer speech.
Appellants next argue that NLET, through its exceptions and
exemptions, impermissibly targets a small group of speakers, including
appellants, to bear the full burden of the tax. We disagree.
In Minneapolis Star & Tribune Co. v. Minnesota
Commissioner of Revenue, 460 U.S. 575, 579, 592 (1983), the Supreme
Court concluded that a use tax resembled a "penalty for a few" and was
unconstitutional because only 13 publishers producing 16 out of 374 paid
circulation papers were obligated to pay the tax. Later, in Arkansas
Writers, the Court determined that the sales tax at issue was
unconstitutional, in part, because at most only three publications were
obligated to pay the tax. See 481 U.S. at 229. Further, as explained by
the Court in a different case, "Mlle danger from a tax scheme that targets
a small number of speakers is the danger of censorship. Leathers,
499 U.S. at 448.
As will be explained below, closer by comparison to this case is
Leathers v. Medlock. In Leathers, the Supreme Court considered the
constitutionality of Arkansas's state sales tax on tangible property and
specified services that excluded or exempted certain segments of the
media and not others. Id. at 441-42. Cable service providers challenged
the tax after they became subject to its provisions by a legislative
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amendment. Id. at 442. In concluding that Arkansas's tax was
constitutional and did not impermissibly target a small group of speakers,
the Court determined that the use tax was of general applicability and
posed no danger of censorship given the wide variety of programming
subject to its provisions. See id. at 447, 449.
Although NLET is not a generally applicable sales tax like the
tax addressed in Leathers, it reaches a much broader base than the taxes
at issue in Arkansas Writers and Minneapolis Star. As evidence, the
record demonstrates that in 2004 over 90 live-entertainment facilities
were subject to and paid taxes under NLET. These tax payments came
from a variety of live entertainment establishments, including raceways,
nightclubs, performing arts centers, gentlemen's clubs, and facilities
hosting sporting and one-time events. While we acknowledge that these
numbers were from 2004 and thus predate NLET's additional exemptions
and exceptions, we remain convinced that, even with those amendments,
NLET does not impermissibly target a small group of speakers and
therefore does not pose any danger of censorship.°
Appellants lastly claim that based on its exemptions and
exceptions, the only possible purpose behind NLET was to suppress
speech.m But this assertion ignores the idea that "Mnherent in the power
°We note that the 2005 amendments to the exemptions found in
MRS 368A.200(5)(d)-(e) reducing the qualifying maximum occupancy
levels from 300 to 200 actually expanded NLET's tax base. 2005 Nev.
Stat., ch. 484, § 10, at 2483; 2005 Nev. Stat., ch. 9, § 38, at 142.
1 °Appellantsalso assert that the Legislature's inclusion of exotic
dancing establishments was intentional and therefore unconstitutional.
We note that delving into legislative intent in this context is neither
required nor prudent. We agree with the Supreme Court when it stated,
"Mnquiries into congressional motives or purposes are a hazardous
continued on next page . . .
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to tax is the power to discriminate in taxation," and that unless "a
classification is a hostile and oppressive discrimination against particular
persons and classes," it will not trigger heightened scrutiny. Leathers, 499
U.S. at 451-52 (internal quotations omitted).
In Leathers, the Supreme Court determined that Arkansas's
choice to exclude and exempt certain media from a generally applicable
tax was not hostile or oppressive because it did not suggest an intention to
suppress any ideas. Id. at 452-53. Similarly, the Nevada Legislature has
decided to exempt and exclude certain venues and live entertainment from
an otherwise broadly applicable tax. A facial examination of NLET's
provisions reveals that this taxation scheme is neither directed at nor
presents the danger of suppressing particular ideas. See generally NRS
Chapter 368A. Moreover, nothing in the record gives us reason to believe
that NLET poses any danger of suppressing ideas.
Because NLET does not discriminate on the basis of the
content of taxpayer speech, target a small group of speakers, or otherwise
threaten to suppress ideas or viewpoints, we• determine that heightened
scrutiny does not apply Instead, rational basis review applies, and the
statute is presumed to be constitutional. We conclude that NLET is
constitutional on its face because appellants have failed to demonstrate
that NLET is not rationally related to a legitimate government purpose.
. . . continued
matter," and such speculation should not be the basis of voiding legislation
"which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser'
speech about it." United States v. O'Brien, 391 U.S. 367, 383-84 (1968).
Accordingly, we decline appellants' invitation to scrutinize NLET's
legislative history.
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See Hamm v. Arrowcreek Homeowners' Ass'n, 124 Nev. 290, 301, 183 P.3d
895, 903-04 (2008); see also Arata v. Faubion, 123 Nev. 153, 159-60, 161
P.3d 244, 249 (2007) (explaining that as long as a reasonable factual
situation can be conceived to justify it, a statute will be upheld under
rational basis review).
Based on the foregoing analysis, we affirm the district court's
decisions dismissing appellants' as-applied challenge to NLET and
concluding that NLET is facially constituf 11
J.
Douglas
We concur:
C.J.
J.
Pickering
&ea
Parraguirre
J.
Cherr
J.
Saitta
"We have considered all of appellants' other arguments, including
those seeking additional discovery and an injunction, and conclude that
they lack merit.
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