dissenting.
I respectfully dissent.
It is clear, as appears to be conceded by the majority opinion, that the proscription of live, nude entertainment in premises operating under a state liquor license is constitutionally permissible as a valid exercise of the police power of the state. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). The Supreme Court there upheld the validity of statutorily authorized regulations banning nude dancing in liquor-licensed premises in the face of an attack that the regulations violated the First and Fourteenth Amendments to the United States Constitution. The Court observed that the state’s police power, as strengthened by its authority to regulate liquor sales within its borders pursuant to the Twenty-first Amendment to the United States Constitution, is enough to validate the ban on live, nude dancing [entertainment] despite the fact that some of the dancing may admittedly be protected speech.
“The Department’s conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.” California v. LaRue, supra.
This holding was reaffirmed in Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), where the Court stated:
“Although the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances. In LaRue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program.”
In my view, consistent with the reasoning of California v. LaRue, supra, the legislative determination by the City of Federal Heights prohibiting live, nude entertainment in premises licensed under the State Liquor Code is not an irrational exercise of the police power, nor does it constitute an impermissible infringement upon the First Amendment right of freedom of expression.
Admittedly, a citywide proscription of this type of entertainment by ordinance, not framed on obscenity considerations, is not permissible as recognized in LaRue, supra, where the Court stated:
“ * * * While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in *990establishments that it licenses to sell liquor by the drink.” (Emphasis added.)
See also Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). I do not agree with the majority conclusion that the ordinance in question totally bans such activity citywide. By its express terms, the ordinance merely relegates the exploitation of this type of entertainment to the El Entertainment District provided for in the ordinance. Although it prohibits such entertainment in all liquor-licensed premises throughout the City, it does not totally ban such activity. Young v. American Mini Theatres, supra, recognizes the right to limit such activities to certain locations within a city under a zoning ordinance enacted pursuant to the police power.
The question is squarely presented whether Marco, whose conduct clearly falls within the constitutionally valid limitation of the ordinance, has standing to assert a facial overbreadth challenge to the ordinance.
The majority predicates its conclusion that Marco has standing to challenge the constitutionality of this ordinance on the broadened standing rules recognized in First Amendment cases under Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) and Williams v. City and County of Denver, Colo., 622 P.2d 542 (1981). The broad reading given these cases by the majority opinion is another expansion of First Amendment standing rules.
The majority correctly points out that:
“ * * * Particularly where conduct and not merely speech is involved, we believe that the [facial] overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, supra.
In my view, the ordinance is not facially overbroad. The “plainly legitimate sweep” of the ordinance is to prohibit the proscribed conduct in liquor-licensed premises, as authorized by LaRue, supra, and to relegate to, but permit, such conduct in a particular zone within the city, as authorized by Young v. American Mini Theatres, supra.
In Williams, supra, we stated:
“ * * * However, the doctrine of over-breadth does not compel indiscriminate facial invalidation of every statute which may chill protected expression. Nor does the doctrine confer standing to challenge the facial constitutionality of a statute on every defendant whose conduct falls within its prohibition. * * *
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“It follows that a defendant whose conduct is plainly and legitimately proscribed by a statute possesses standing to attack its facial validity on grounds of over-breadth under U.S. Const., Amend I, if and only if the reviewing court determines, as a threshold matter of law, that the statute in question is substantially overbroad. Broadrick v. Oklahoma, supra.” (Emphasis added.)
It would seem to follow from Williams, supra, that since the ordinance has been legally applied to Marco, and since the ordinance facially contains no invalid proscription of the conduct which it seeks to regulate, Marco has no standing to challenge the ordinance. Nonetheless, the majority grants Marco standing.
The majority speculates that the ordinance effectively bans live, nude entertainment within the City of Federal Heights and thus cannot be sustained. Neither Marco nor any other person has attempted to implement the permissive provisions of the ordinance which would allow such entertainment in an El Entertainment District to be created through the initiative process. The majority’s conclusion is speculative, without basis in fact, and premature. Consideration of such a circumstance should be deferred until the time when, and if, and absolute ban on such activity results from a rejection by the voters of Federal Heights of implementation of the ordinance.
I would affirm the judgment of the district court.
I am authorized to say that Chief Justice HODGES and Justice ROVIRA join in this dissent.