Essence, Inc. v. City of Federal Heights

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 8 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ESSENCE, INC., doing business as
The Bare Essence, a Colorado
corporation; DEVONA RICHELLE
LOPEZ and LISA EASTON,
Nos. 00-1271 and 00-1286
Plaintiffs-Appellees/
Cross-Appellants,

v.

THE CITY OF FEDERAL HEIGHTS,

Defendant-Appellant/
Cross-Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 98-M-71)

Bradley J. Reich, (Arthur M. Schwartz, Michael W. Gross, on the briefs), Arthur
M. Schwartz, P.C., Denver, Colorado, for Plaintiffs-Appellees/Cross-Appellants.

Steven J. Dawes, (Brian S. Popp, with him on the briefs), Griffiths, Tanoue &
Light, Denver, Colorado, for Defendant-Appellant/Cross-Appellee.

Before TACHA, ANDERSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
I. INTRODUCTION

During the middle to late 1990s, the defendant, City of Federal Heights,

Colorado, enacted a series of ordinances governing the licensing and operation of

adult entertainment businesses. Plaintiffs are Essence, Inc., a corporation that

operates a nude dancing establishment, and Devona Richelle Lopez and Lisa

Easton, two women denied employment as dancers by Essence, Inc. because they

were younger than twenty-one at the time they sought employment. Plaintiffs

present First Amendment facial challenges to multiple provisions of the Federal

Heights municipal code. The district court, with a few exceptions, rejected the

challenges and granted Federal Heights’ summary judgment motion. This court

has jurisdiction under 28 U.S.C. § 1291 and affirms in part, reverses in part,

and remands.

II. BACKGROUND

At least as early as 1994, Federal Heights sought to regulate the location

and operation of “adult entertainment establishments.” 1 A series of ordinances

1
As used throughout this opinion, the phrase “adult entertainment
establishment” shall have the meaning given it by Federal Heights Ordinance 96-
12, sec. 1(A) (June 17, 1996), codified at Federal Heights Mun. Code ch. XII, art.
XII, § 12-12-2(A): “An adult arcade, adult bookstore, adult video store, adult
cabaret, adult motel, adult motion picture theater, adult theater, sexual encounter
establishment, all as defined herein, or other similar businesses . . . .” Relevant to

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followed throughout the 1990s. The result was a comprehensive licensing and

regulatory scheme governing adult entertainment establishments codified in

Federal Heights Municipal Code chapter XII, article XII. It requires those

seeking to do business as adult entertainment establishments to apply for a license

from the City of Federal Heights. See Federal Heights Mun. Code ch. XII, art.

XII, §§ 12-12-4 to -6. The code was amended in 1997 to require employees and

managers of adult entertainment establishments to obtain licenses before they

would be allowed to work. See Federal Heights Ordinance 97-15, § 6, codified at

Federal Heights Mun. Code ch. XII, art. XII, § 12-12-10. 2

Plaintiff Essence 3 applied for a business license in November 1996. It was

informed by the Federal Heights City Administrator, Roger Tinklenberg, that it

had met “all the preliminary requirements for issuance” of a license, but that a

license would not issue until permits from the Building and Fire Departments

this case is the definition of “adult cabaret”: “A nightclub, bar, restaurant or
similar business which regularly features . . . Persons who appear in a state of
nudity . . . .” Federal Heights Mun. Code ch. XII, art. XII, § 12-12-2(A)(3).
2
In this opinion, licenses issued under section 12-12-6 to businesses will be
called “business licenses.” Licenses issued under section 12-12-10 to employees
or managers will be called “employee licenses.”
3
Essence, Inc. was called Sanclub Corporation throughout the proceedings
before the district court. Some time prior to this appeal its name changed. At all
times it did business in Federal Heights as “The Bare Essence.” This opinion will
refer to the plaintiff corporation as “Essence” and its establishment as “Bare
Essence.”

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were issued for remodeling of Bare Essence. It is not clear whether Federal

Heights ever issued the license. Following the death of the registered agent of

Essence, Federal Heights required Essence to reapply for a license. Essence

applied for another business license on October 28, 1997. Plaintiffs claim that

before Federal Heights would issue the license it required substantial remodeling

to ensure that dancers would be kept a minimum distance away from patrons and

that there was adequate lighting inside and outside the premises. In addition,

Federal Heights required Essence to comply with section 12-12-11(B) of the

municipal code, which prohibited individuals under 21 from entering nude

dancing establishments. As a result, because they were younger than twenty-one,

plaintiffs Lopez and Easton were refused employment. 4 Essence was issued a

business license on November 4, 1997.

In the meantime, the Federal Heights City Council introduced Ordinance

97-15. The Ordinance amended portions of chapter XII, article XII of the

municipal code. Among other provisions, it amended section 12-12-10 to require

employees and mangers to obtain licenses from the city before they would be

4
Lopez and Easton have since turned twenty-one, and their claims for
injunctive relief are moot. Lopez and Easton, however, also present damage
claims which are dependent on their constitutional challenge to the Federal
Heights ordinances. They thus retain a concrete interest in the outcome of this
matter, rendering their challenge viable and not moot. See Univ. of Texas v.
Camenisch, 451 U.S. 390, 393-94 (1981).

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allowed to work. Ordinance 97-15 was adopted on December 2, 1997, nearly a

month after Federal Heights issued a business license to Essence. That same day,

the City Council passed Resolution 97-36, which set the application fees for an

employee license.

On January 14, 1998, plaintiffs filed a lawsuit challenging the entirety of

the Federal Height’s adult entertainment regulatory scheme. The plaintiffs

mounted a facial attack on numerous provisions of article XII, asking for

declaratory and injunctive relief. Essence also claimed that enforcement of the

provisions prior to the issuance of its business license caused Essence economic

damages. Plaintiffs Lopez and Easton claimed monetary damages stemming from

their inability to work as nude dancers at the Bare Essence.

Federal Heights moved for summary judgment, and plaintiffs filed a cross-

motion for partial summary judgment. The issues contested were a subset of the

claims asserted by plaintiffs. The plaintiffs challenged: (1) the age restriction

contained in section 12-12-11(B) 5; (2) the provision dealing with the denial of

business licenses, section 12-12-6 6; (3) section 12-12-9, which contained the

5
“[I]t shall be unlawful for any person under twenty-one (21) years of age
to be upon the premises of any adult entertainment establishment which offers
live nude dancing.” Federal Heights Mun. Code ch. XII, art. XII, § 12-12-11(B).
6
Section 12-12-3 makes it unlawful for a business to engage in business as
an adult entertainment establishment without a license. Section 12-12-4 requires
applicants for an adult entertainment license to file an application with the City
Clerk; the section also specifies what information must be included in the

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procedures for suspending or revoking a business license 7; (4) section 12-12-10,

application.
Section 12-12-6 sets out the procedure once the application is submitted.
After the City Clerk receives the application, the Police Department, the Building
Inspector, and the Fire Chief investigate the applicant and its premises “for
compliance with the applicable provisions of the municipal code.” Those
agencies turn the result of their investigations over to the City Administrator.
Within 30 days of the Clerk’s receipt of the application, the City Administrator
must decide to grant a license or, if there is probable cause to believe that there
are grounds for denial, notify the applicant and refer the application to the City
Council. A hearing before the Council will be held within 20 days of the notice
to the applicant. Review of the Council’s decision may be pursued according to
Colorado law.
Section 12-12-6 also specifies grounds under which the City Council may
deny an application. Among these grounds are a failure by the applicant to
provide information reasonably necessary for the issuance of a license, the
premise’s noncompliance with applicable provisions of the municipal code, or
when an applicant, partner, officer, director, or stockholder of more than 10% of
the outstanding shares of the applicant business was either convicted of a crime
listed in section 12-12-4(F)(1) or had an adult entertainment license denied,
suspended, revoked, or non-renewed and as a consequence the issuance of a
Federal Heights license would result in “serious criminal conduct.”

7
Section 12-12-9 provides the grounds for suspension and revocation of an
adult entertainment business license. Under section 12-12-9(A), the City Council
shall suspend a license, and may revoke it, if the licensee or its employees have
violated any provision of article XII or have knowingly permitted an “unlawful
act” upon the licensed premises. Section 12-12-9(B) provides that a license shall
be revoked if the license has been suspended within a year, and the licensee or an
employee knowingly allowed possession or sale of drugs, prostitution, the
licensee operated the business while the license was suspended, or the licensee or
employee allowed a sexual act on the premises. Section 12-12-9(E) requires that
the City Council hold a public hearing on suspension or revocation within 20 days
of notice to the licensee. The decision shall issue within 10 days of the hearing,
and the decision may be appealed according to Colorado law.

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the employee licensing provision 8; (5) the fees imposed on employee license

applicants by Resolution 97-36; (6) requirements contained in section 12-12-4

that owners of an adult entertainment business disclose their ownership share in

the business; and (7) sections 12-12-13, -14, and -15, which required certain stage

configurations, lighting, and a minimum distance between dancers and patrons.

The district court granted defendant’s motion in part and plaintiffs’ motion

in part. On the issue of the age restriction, the court held section 12-12-11(B)

invalid as it applied to dancers, but valid as it applied to anyone else. The court

recognized that the age restriction was a content neutral regulation and could thus

be upheld if it was narrowly tailored to further a substantial governmental

interest. It ruled, however, that Federal Heights had “made no showing that

restricting the employment of performers to those over 21 has any relationship to

the community’s interest in avoidance or mitigation of the secondary effects from

the operation of adult entertainment establishments.” Dist. Ct. Op. at 6-7. As to

8
Section 12-12-10 (as amended by Ordinance 97-15) requires all managers
and employees of a licensed establishment to apply for an employee’s license.
All applications will be investigated by the Police Department; the investigations
shall be completed within 14 days. After the investigation, the license shall issue
unless the City Administrator finds grounds for denial of the license. There is no
specific time limit on the City Administrator’s decision. The grounds for denial
include making false or misleading statements on the application, failing to
provide the information required in section 12-12-10, failing to pay an annual
license fee, being convicted of one of the criminal offenses listed in section 12-
12-4(F)(1), or having an employee license revoked by Federal Heights or other
governmental entity within the 5 years preceding the date of application.

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patrons under the age of twenty-one, the court ruled that their First Amendment

rights were “qualitative[ly] differen[t]” from the rights of the performers, that

dancers’ rights to express themselves through nude dancing “did not include a

right to perform for a particular audience,” and that the age restriction was “only

an incidental burden on [Essence’s] freedom.” Id. at 7.

The district court ruled that sections 12-12-6, 12-12-9, and 12-12-10, the

provisions dealing with the denial, suspension, and revocation of business and

employee licenses, contained all the requisite procedural safeguards. The court

ruled that the fourteen day limit on the decision whether to grant an employee

license under section 12-12-10 was not so long as to run afoul of the procedural

safeguards of Freedman v. Maryland, 380 U.S. 51 (1965). See Dist. Ct. Op. at 8.

The court did not address whether section 12-12-10 was invalid because it did not

require the city to go to court to justify a denial of an employee license, nor did it

consider whether 12-12-10 was invalid because it did not contain an adequate

judicial review procedure. The court ruled that the judicial review following a

denial of an application for a business license under section 12-12-6, or following

a suspension or revocation of a business license under section 12-12-9, was

adequate, even though the judicial review procedure did not guarantee a swift

judicial decision. Id. at 8-10.

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 The district court also ruled that sections 12-12-6 and 12-12-9, for the most

part, did not grant to the officials of Federal Heights impermissible discretion in

deciding whether to grant, suspend, or revoke business licenses. The court

accepted the city’s narrowing construction of several phrases in the ordinance that

otherwise seemed to give the City Administrator and City Council wide discretion

to deny, suspend, or revoke a business license. See id. at 11. The district court,

however, declared invalid the portion of section 12-12-6 allowing the City

Council to deny an application for a business license if issuance of the license

would result in “serious criminal conduct.” See id. at 12.

The district court upheld portions of sections 12-12-6 and 12-12-10, which

allowed denial of applications for business and employee licenses if a principal

(in the case of a business license) or employee has been convicted of certain

crimes specified in section 12-12-4(F). The court analyzed the disqualification

provisions as content neutral restrictions on speech and concluded that they

furthered the substantial governmental interest in mitigating the secondary effects

of adult businesses. Id. at 13-15.

The district court upheld the licensing fees imposed on applicants for

employee licenses, observing that the fees were correlated to the costs of

administering the licensing scheme. Id. at 16-17. Since plaintiffs did not prove

the fees were excessive, the court declared them valid. Id. at 17. The district

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court also ruled on other provisions of the Municipal Code, including the

requirements that principals of businesses seeking business licenses disclose their

share of the business, that dancers maintain a certain distance from the stage, and

that adequate lighting be installed both inside and outside the premises. The court

declared invalid the portion of the Code requiring principals to disclose their

exact share of an applicant for a business license, but upheld the premises

configuration requirements. These rulings were not appealed.

III. STANDING

Before reaching the merits of the appeal, this court must satisfy itself that

the parties have standing to invoke the power of the federal courts. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). Neither the parties nor the

district court addressed the question of plaintiffs’ standing. Nevertheless, it is the

responsibility of this court to raise the issue on its own to ensure that it has and

the district court had before it an Article III case or controversy. See Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). There are three

requirements of Article III standing. First, the plaintiff must suffer an injury in

fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). An injury in fact

is an “invasion of a legally protected interest” that is (a) concrete and

particularized and (b) actual or imminent, i.e., not conjectural or hypothetical. Id.

(quotations omitted). Second, the injury must be “fairly trace[able] to the

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challenged action of the defendant,” rather than some third party not before the

court. Id. (quotation omitted). Third, it must be likely that a favorable court

decision will redress the injury of the plaintiff. Id. at 561. The burden to

establish standing rests on the party invoking federal jurisdiction, and the

evidence needed to carry that burden depends on the stage of litigation. Id.;

Loving v. Boren, 133 F.3d 771, 772 (10th Cir. 1998). When the procedural

posture of the case is a Federal Rule of Civil Procedure 56 motion for summary

judgment and plaintiffs’ standing is at issue, to prevail on such a motion “a

plaintiff must establish that there exists no genuine issue of material fact as to

justiciability,” and “mere allegations” of injury, causation, and redressability are

insufficient. Dept. of Commerce v. United States House of Representatives, 525

U.S. 316, 329 (1999).

We conclude that plaintiffs do not have Article III standing to challenge the

portion of section 12-12-6 allowing the City of Federal Heights to deny a business

license based on the previous criminal convictions of a principal or the portion of

section 12-12-10 allowing the city to deny an employee license based on a

previous criminal conviction of the applicant. Plaintiffs have neither

demonstrated that no genuine issue of fact exists as to injury in fact, nor alleged

facts necessary to show injury-in-fact. See FW/PBS, Inc. v. City of Dallas, 493

U.S. 215, 231 (1990) (“[P]etitioners . . . must allege . . . facts essential to show

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jurisdiction. If [they] fai[l] to make the necessary allegations, [they have] no

standing.” (quotation omitted)).

Injury-in-fact must be concrete and imminent. Hypothetical or conjectural

harm is not sufficient. When a law does not apply to a party, that party has

suffered no invasion of a legally protected interest and may not question the law’s

constitutionality. See Warth v. Seldin, 422 U.S. 490, 504 (1975) (holding

plaintiffs challenging zoning ordinance lacked standing because, among other

reasons, “none is himself subject to the ordinance’s strictures”). The portions of

sections 12-12-6 and 12-12-10 that provide grounds for denial of licenses based

on previous criminal convictions are remarkably similar to a provision challenged

in FW/PBS. A “civil disability provision” prohibited the City of Dallas from

issuing an adult entertainment license to an individual who had been convicted of

one or more enumerated crimes. FW/PBS, 493 U.S. at 232. The Supreme Court

held that no party before it had standing to challenge the disability provision

because none could show that they had been convicted of a crime disabling them

from receiving a license. Id. at 233-34; see also East Brook Books, Inc. v. City of

Memphis, 48 F.3d 220, 227 (6th Cir. 1995) (same).

Similarly, 12-12-6 and 12-12-10’s disability provisions do not apply to

Essence or the individual plaintiffs. There is no allegation that Essence is owned

or controlled by any individuals subject to the disability provision or that Essence

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has ever been owned by such individuals. Additionally, plaintiffs have not

alleged that Essence employs such individuals or has had to deny employment to

those convicted of crimes, nor is there an allegation that the individual plaintiffs

have been convicted of crimes. Merely because Essence is prospectively inhibited

from such ownership and employment arrangements is, in this case, a hypothetical

injury and not a concrete injury. As a consequence, the plaintiffs do not have

standing, and the district court should have dismissed their challenge to the

disability portions of section 12-12-6 and 12-12-10.

Essence has not alleged facts demonstrating injury-in-fact to support its

challenge to the other portions of section 12-12-6. Section 12-12-6 allows the

denial of an application for a business license on one of several grounds. Once an

application is denied, the applicant may appeal the decision to the Colorado state

courts pursuant to Colorado Rule of Civil Procedure 106(a)(4). Plaintiffs contend

that the grounds for denial vest too much discretion in the licensing authority and

that the judicial review procedure is inadequate. Essence, of course, has already

been granted a license, and the allegedly overbroad discretion and lack of judicial

review attendant to the application process do not apply to Essence. See Clark v.

City of Lakewood, 259 F.3d 996, 1008 (9th Cir. 2001) (finding no injury in fact

when cabaret owner who had license challenged licensing requirement); DLS, Inc.

v. City of Chattanooga, 107 F.3d 403, 413 (6th Cir. 1997) (same). While section

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12-12-5(C) requires a new application if there is any change in ownership of an

adult entertainment establishment, Essence has not alleged that it will change

ownership or is likely to do so. It is thus pure conjecture to say that Essence will

again have to apply for a business license.

Essence has also failed to allege facts demonstrating that it has standing to

challenge section 12-12-9. It asserts that section 12-12-9 gives too much

discretion to the city to revoke or suspend a business license. Essence also asserts

section 12-12-9 fails to provide a stay of a suspension or revocation pending

judicial review and fails to guarantee timely judicial review of the city’s

suspension and revocation decisions. Essence currently holds a business license.

Thus, there is the possibility that the city will suspend or revoke the license

through exercise of its allegedly overbroad discretion, unchecked by adequate

procedural safeguards. An Article III injury, however, must be more than a

possibility. See Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (“Allegations of

possible future injury do not satisfy the requirements of Art. III.” (emphasis

added)). Essence must show that it “has sustained or is immediately in danger of

sustaining some direct injury.” City of Los Angeles v. Lyon, 461 U.S. 95, 101-02

(1983) (emphasis added). The “threat of injury must be both real and immediate.”

Id. at 102 (quotation omitted). Of course, Essence need not “await the

consummation of threatened injury,” but the injury must be “certainly

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impending.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298

(1979) (quotation omitted). Essence has not alleged that Federal Heights has

sought to suspend or revoke its business license or has threatened to do so. Nor

has it alleged any fact indicating that suspension or revocation may be imminent

or that it has altered its behavior as a result of the provision. It has thus not

carried its burden of demonstrating standing. 9

9
There are cases that hold a possibility of license suspension or revocation
confers standing. In Deja Vu of Nashville, Inc. v. Metropolitan Government, the
Sixth Circuit held that the possibility that a licensor will suspend or revoke a
license without adequate procedural safeguards constitutes a threat to the
licenseholders’ First Amendment interests and is itself a legally cognizable injury.
See 274 F.3d 377, 399 (6th Cir. 2001). In Deja Vu, as in this case, the plaintiffs
did not allege that the licensor threatened to suspend or revoke their business
license. Id. In holding that the plaintiffs had standing to challenge the municipal
ordinance’s alleged lack of adequate judicial review procedures, the Sixth Circuit
relied on Supreme Court precedent establishing that a license applicant need not
apply for and be denied a license before challenging a licensing requirement. Id.
(quoting Freedman v. Maryland, 380 U.S. 51, 57 (1965)).
The analogy between an applicant and a licenseholder is not persuasive.
The applicant has standing to bring a facial challenge to a licensing scheme
vesting unbridled discretion in the licensor because of the likelihood of self-
censorship: the applicant may be cowed into censoring its speech for fear of
alienating the licensor and receiving an unfavorable decision on its application.
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988). After
the license has already been granted, however, circumstances change. First, self-
censorship is spurred by apprehension of viewpoint hostility. See id. at 757-58.
The approval of the license eliminates some concern that the licensor harbors
covert hostility to the content of the licenseholder’s speech. Second, self-
censorship may be presumed in the application context because the licensor has
the leverage of the pending application decision. After the license has been
granted, however, the licensor lacks this ready means for influencing the
licenseholder. We recognize that a threat of suspension or revocation would be
one method of coercing the licenseholder to self-censor, and, as we have

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 On remand, the district court should vacate the portion of its opinion and

order upholding the disqualification provisions of sections 12-12-6 and 12-12-10,

the portion of its opinion and order relating to plaintiffs’ other challenges to

section 12-12-6, and the portion of its opinion and order relating to plaintiffs’

challenges to section 12-12-9. The district court should then dismiss the portions

of plaintiffs’ complaint challenging those provisions.

IV. STANDARD OF REVIEW

This court reviews a summary judgement de novo and applies the same

legal standard used by the district court under Rule 56. Sigmon v.

CommunityCare HMO, Inc., 234 F.3d 1121, 1124 (10th Cir. 2000). When

determining whether there exist issues of material fact and whether the movant is

entitled to a judgment as a matter of law, a court looks at the record and the

reasonable inferences from the record in the light most favorable to the non-

movant. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). Our review of

the record is more rigorous in a First Amendment context. Revo v. Disciplinary

Bd. of the Supreme Court, 106 F.3d 929, 932 (10th Cir. 1997). Accordingly, this

recognized, such a threat would provide standing. The precedent relied upon by
the Deja Vu court also recognized standing when a licenseholder was actually
threatened with revocation. See G & V Lounge, Inc. v. Mich. Liquor Control
Comm’n, 23 F.3d 1071, 1074 (6th Cir. 1994); see also Deja Vu, 274 F.3d at 404
(Wellford, J., concurring in part and dissenting in part). Without some indication
that Essence may lose its license to speak or is being pressured into not speaking,
it cannot demonstrate injury.

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court is “obligated to make an independent examination of the record in its

entirety.” Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 685 (10th Cir.

1998).

V. AGE RESTRICTION

Both parties contest the district court’s handling of plaintiffs’ challenge to

section 12-12-11(B), the section prohibiting anyone under the age of twenty-one

from being on the premises of a business offering live nude dancing. The district

court ruled that section 12-12-11(B) was valid as applied to patrons of nude

dancing establishments, but invalid as applied to dancers.

Nude dancing is expressive conduct protected by the First Amendment.

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981). Such dancing is

not “core” First Amendment speech, but rather “falls only within the outer ambit”

of free speech protection. City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000)

(plurality opinion). As with any symbolic speech mixing elements of speech and

conduct, the first question to be answered is whether section 12-12-11(B) is

content based or content neutral. Texas v. Johnson, 491 U.S. 397, 407 (1989).

Content based regulations are subject to strict scrutiny, while content neutral

regulations need only satisfy the more relaxed scrutiny specified in United States

v. O’Brien, 391 U.S. 367, 377 (1968). Id. Because we conclude, however, that

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section 12-12-11(B) does not survive intermediate scrutiny under O’Brien, we

need not decide whether it is content neutral or content based.

The O’Brien test has four factors. First, this court must assess whether

Federal Heights possesses the constitutional power to enact the ordinance.

Second, the regulation must further an important or substantial government

interest. Third, the government interest must be unrelated to the suppression of

free expression. Fourth, the restriction must be no greater than is essential to the

furtherance of the government interest. See O’Brien, 391 U.S. at 377. It is the

burden of Federal Heights to prove satisfaction of each of these elements. See

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 816 (2000) (“When

the Government restricts speech, the Government bears the burden of proving the

constitutionality of its actions.”); Z.J. Gifts, 136 F.3d at 688. The city has not met

its burden with respect to the second O’Brien requirement. We do not address the

other factors.

A. The City’s Interest in Limiting the Harmful Secondary Effects

Associated with Nude Dancing.

The city asserts it has an interest in combating the harmful secondary

effects flowing from nude dancing, including a decrease in property values, an

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increase in crime, and sexually transmitted diseases. 10 The city’s interest is

undeniably important. Pap’s A.M., 529 U.S. at 296 (plurality opinion). The city

must demonstrate, however, that the harms it seeks to circumscribe are real. See

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). The city has

presented undisputed evidence establishing the existence of harmful secondary

effects of nude dancing establishments and, accordingly, that it has a substantial

or important interest in limiting those effects.

A municipality only has a substantial or important governmental interest in

combating the harmful secondary effects of nude dancing if those secondary

effects are real. Phillips v. Borough of Keyport, 107 F.3d 164, 175 (3d Cir. 1997)

(en banc). 11 The Supreme Court held in Renton that a city enacting an ordinance

10
Federal Heights seems to argue in portions of its brief that it passed the
age restriction because it determined that individuals aged eighteen to twenty are
at a greater risk than the general population from the secondary effects of nude
dancing establishments. Federal Heights has not, however, demonstrated that its
interest in protecting those younger than twenty-one is substantial. Federal
Heights must demonstrate that the harms it seeks to redress actually exist. See
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). Federal Heights
offered evidence that general harmful secondary effects do indeed flow from adult
entertainment establishments. See infra. The city did not, however, present any
evidence that those younger than twenty-one are any more susceptible to those
harmful effects. Indeed, there is no indication in the record that those aged
eighteen to twenty are even affected by the harmful secondary effects of nude
dancing. Without presenting such evidence, the city cannot establish that its
interest in protecting those younger than twenty-one is substantial.
11
There is some support for the position that since the Supreme Court has
repeatedly accepted evidentiary showings that secondary effects do in fact result
from the presence of adult entertainment establishments, a city may presume their

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aimed at secondary effects can rely on evidence “reasonably believed to be

relevant to the problem the city addresses.” 475 U.S. at 51-52. The city need not

“conduct new studies or produce” independent evidence of the secondary effects,

but may rely on the experience of other cities. Id. at 51. In order to prove a

substantial interest in limiting the secondary effects of sexually oriented

businesses, the governmental body must point to evidence of secondary effects at

the time of enactment or evidence of current secondary effects. See Barnes v.

Glen Theatre, Inc., 501 U.S. 560, 582 (1991) (Souter, J., concurring in the

judgment) (“Our appropriate focus is not an empirical enquiry into the actual

intent of the enacting legislature, but rather the existence or not of a current

governmental interest . . . .” (emphasis added)). 12 Thus, evidence of secondary

reality. See City of Eerie v. Pap’s A.M., 529 U.S. 277, 297 (2000) (plurality
opinion); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 244 (1990)
(opinion of White, J.) (“Renton and Young also make clear that there is a
substantial governmental interest in regulating sexually oriented businesses
because of their likely deleterious effect on the areas surrounding them . . . .”)
(emphasis added). But see Pap’s A.M., 529 U.S. at 313 (opinion of Souter, J.)
(requiring “a regulating government to make some demonstration of an
evidentiary basis for the harm it claims to flow from the expressive activity”).
Because this court holds that Federal Heights has actually demonstrated that the
secondary effects of nude dancing are real, we need not consider whether it may
presume their reality.
12
Numerous courts have concluded that Justice Souter’s opinion should be
read as the holding of the Barnes court. See Tunick v. Safir, 209 F.3d 67, 83 (2d
Cir. 2000) (separate opinion of Calabresi, J.) (noting that Fifth, Sixth, Seventh,
Eighth, and Eleventh Circuits have read Justice Souter’s opinion as the holding of
Barnes).

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effects occurring even years after the enactment of a statute may form the basis of

a government’s substantial interest in limiting those secondary effects. See DLS,

Inc. v. City of Chattanooga, 107 F.3d 403, 410-11 (6th Cir. 1997) (rejecting the

argument that evidence of secondary effects developed after enactment of adult

entertainment regulation is irrelevant); see also J & B Entm’t, Inc. v. City of

Jackson, 152 F.3d 362, 371-72 (5th Cir. 1998).

Other courts have required a substantial evidentiary showing of secondary

effects before a city’s interest in combating them will be deemed substantial or

important. The Fifth Circuit requires a showing based on “testimony of

individuals, local studies, or the experiences of other cities.” SDJ, Inc. v. City of

Houston, 837 F.2d 1268, 1274 (5th Cir. 1988). Merely stating the words

“secondary effects” in a preamble is insufficient. J & B Entm’t, 152 F.3d at 373-

74. The Third Circuit requires the regulating governmental body to identify the

secondary effects “with some particularity” and put forth “some record support

for the existence of those effects.” Phillips, 107 F.3d at 175.

This circuit has declared that a city’s stated purpose to limit the impact of

secondary effects must be credited and “accorded high respect.” Z.J. Gifts, 136

F.3d at 688 (quotation omitted). A city “may control a perceived risk” of

secondary effects through regulation and need not wait until the secondary effects

actually exist. Id.

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 Federal Heights’ evidentiary showing is substantial. The preamble to

Ordinance 94-16, which enacted the predecessor of section 12-12-11(B), recited

several harmful secondary effects that the city found were caused by “adult

entertainment establishments.” There is no preamble to Ordinance 95-11, which

enacted section 12-12-11(B), but section 12 of the ordinance provided that the

ordinance “is deemed necessary for the protection of the health, welfare, and

safety of the community.” Ordinance 96-15 amended the zoning laws of Federal

Heights to prohibit adult entertainment establishments from locating within 500

feet of a church, school, other adult entertainment establishment, or a residential

zone. The preamble recites that the city consulted land use studies from other

cities demonstrating adverse secondary impacts from adult businesses, but the

cities, the authors, and details of the studies are not included.

Ordinance 97-15 amended other provisions of the adult business regulations

and created, among other things, an employee licensing scheme. The preamble to

97-15 cites Renton for the proposition that it may rely on the experience of other

cities with harmful secondary effects from adult businesses and need not “await

the impact of such effects.” The preamble also states that the City Council and

administrators have reviewed many land use studies concerning secondary effects.

The location and dates of fourteen studies are listed, but no details are given.

From these studies, the City Council concluded that secondary effects result from

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adult businesses. These effects include increased rates of certain crimes, the

spread of sexually transmitted diseases, and harmful effects on surrounding

residences and businesses including decreased property values and parking and

traffic problems.

The affidavit of Sharon Richardson, Mayor Pro Tem of Federal Heights,

states that “residents shared concerns with me about the nature of the effects of

Adult Entertainment Establishments on the community.” Section 12-12-11(b) was

supported by “studies and information received subsequent to the 1995

ordinance.” The City Council’s deliberations on Zoning Ordinance 96-15, she

testifies, took into account “secondary impact studies both locally and nationally.”

Crime statistics relating to adult businesses were presented to the Council, as was

an informal survey of other Colorado communities regarding their experiences

with the secondary effects of adult businesses. Ms. Richardson also testified that

Federal Heights had a topless dancer club from 1975 to 1979 and that there were

“numerous problems . . . including one murder on the premises.”

In this case, Federal Heights has offered undisputed evidence that

secondary effects have resulted and will result from nude dancing clubs and other

forms of adult entertainment. As noted above, there are numerous statements in

the preambles of various Federal Heights ordinances that the presence of adult

entertainment establishments would result in harmful secondary effects. These

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preambles are not “mere incantations” of secondary effects. See J & B Entm’t,

152 F.3d at 373-74. Rather, they are a detailed list of the harmful effects the City

Council expected to flow from adult entertainment establishments. Detailed as

they are, and, given the testimony of Mayor Pro Tem Richardson, supported by

studies and information received by the Council, these preambles are strong

evidence of secondary effects. See id. at 374 (preamble statements properly

explained are evidence of substantial governmental interest in limiting secondary

effects). Additionally, the City Council was in close communication with its

constituents who made clear that there were concerns about the effect of adult

establishments on the community. The subsequent pronouncements of the City

Council that it felt the need to deal with the imminent secondary effects of adult

establishments should be interpreted as experienced, “particularized, expert

judgments” entitled to significant weight. See Pap’s A.M., 529 U.S. at 297-98

(plurality opinion). Moreover, Federal Heights consulted several studies from

other jurisdictions and relied on court decisions detailing the secondary effects

flowing from such establishments. Ms. Richardson’s affidavit also reveals that

Federal Heights and the City Council had some experience with a topless dancing

club and its attendant problems. See DLS, Inc., 107 F.3d at 410 (noting that city’s

experience with crime-ridden adult cabaret fifteen years before enactment of adult

-24-
entertainment ordinance was evidence that secondary effects result from adult

cabarets).

When there is evidence of secondary effects in the form of supported

preamble statements, studies and court decisions relied upon by the governing

body, and localized experience with crime or other secondary effects associated

with nude dancing, the city is entitled to summary judgment on the existence of a

substantial governmental interest unless the challenger presents conflicting

evidence giving rise to an issue of fact. See Jones v. Denver Post Corp., 203 F.3d

748, 751 (10th Cir. 2000) (party opposing summary judgment motion must

“identify sufficient evidence which would require submission of the case to the

jury” (quotations omitted)). Plaintiffs have not referenced any evidence casting

doubt on the existence of secondary effects. Accordingly, Federal Heights has

demonstrated as a matter of law that it has a substantial interest in combating the

secondary effects associated with nude dancing.

B. Requirement that the Age Restriction Furthers the City’s Interest.

The O’Brien test is not satisfied, however, merely by the existence of a

substantial governmental interest in regulating secondary effects. The city must

also prove that its chosen weapon against these secondary effects will further its

mission. The city has chosen to combat the general secondary effects associated

with nude dancing not by banning nude dancing outright, but by banning those

-25-
under twenty-one from nude dancing establishments. The district court ruled that

Federal Heights failed to present evidence that its age restriction on dancers

would further its interest in combating secondary effects. Dist. Ct. Op. at 6-7. It

therefore denied Federal Heights motion for summary judgment in part and

granted plaintiffs’ in part. 13

13
The district court upheld the age restriction as it applied to patrons,
because it believed there is a “qualitative difference” between the rights of
dancers and observers. We do not decide whether those who receive protected
expression have a lesser right than those who send such expression. We note that
observers or recipients of expression do have some First Amendment rights. See
U.S. West, Inc. v. FCC, 182 F.3d 1224, 1232 (10th Cir. 1999) (“Effective speech
has two components: a speaker and an audience. A restriction on either of these
components is a restriction on speech.”); see also Kleindienst v. Mandel, 408 U.S.
753, 762 (1972) (“It is now well established that the Constitution protects the
right to receive information and ideas.” (quotations omitted)).
Moreover, Essence may assert those rights. Although federal courts
generally have prevented parties from asserting the rights of others, the traditional
rule prohibiting the assertion of the rights of others is prudential rather than
jurisdictional in the Article III sense. See United Food & Commercial Workers
Union v. Brown Group, 517 U.S. 544, 557 (1996). Because this case presents a
facial challenge on First Amendment grounds, the prudential standing rules are
relaxed. See Virginia v. American Booksellers Assoc., 484 U.S. 383, 392-93
(1988). A well-established exception to the bar against third-party standing is
when the exercise of rights by the third party is intertwined with the litigant’s
activities. As the Supreme Court explained:

[w]hen . . . enforcement of a restriction against the litigant prevents a
third party from entering into a relationship with the litigant
(typically a contractual relationship), to which relationship the third
party has legal entitlement (typically a constitutional entitlement),
third-party standing has been held to exist.

United States Dept. of Labor v. Triplett, 494 U.S. 715, 720 (1990); see also Craig
v. Boren, 429 U.S. 190, 195 (1976) (allowing beer vendor to assert the rights of

-26-
 A ban on nude dancing would necessarily further the city’s interest in

minimizing secondary effects. Pap’s A.M., 529 U.S. at 300-01 (plurality

opinion); Barnes, 501 U.S. at 584 (Souter, J., concurring in the judgment).

Federal Heights’ more limited ban on the presence of those under twenty-one

complicates the analysis. Compliance with the ordinance does not require further

clothing of the dancers. Federal Heights must thus establish that banning persons

under twenty-one while maintaining nude dancing would combat the secondary

effects associated with nude dancing.

The city attempted to demonstrate that the age restriction furthers its

interest in combating secondary effects by offering the affidavit of Mayor Pro

Tem Richardson and the affidavit of Jennifer Weaver, a former dancer at Bare

Essence. The city did not offer the Weaver affidavit until the day of oral

argument on the cross-motions for summary judgment, almost six months after it

males under twenty-one in an equal protection challenge to an Oklahoma liquor
law and observing that vendors have been “uniformly permitted” to challenge
restrictions “by acting as advocates of the rights of third parties who seek access
to their market or function”). The right of eighteen to twenty year-olds to watch
nude dancing depends upon whether nude dancing establishments, such as the
Bare Essence, are allowed to show nude dancing. In such a case, a restriction on
a nude dancing establishment can result in an indirect violation of the rights of
audiencemembers.
Because patrons of nude dancing establishments do have some First
Amendment interest in observing nude dancing, and because Essence may assert
that interest, the district court erred in bifurcating its analysis Instead, it should
have evaluated the age restriction as a whole under O’Brien.

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filed its summary judgment motion. Weaver was a dancer at the Bare Essence

and testified to observing numerous illegal activities and conduct at the club

violating the Federal Heights ordinance. Specifically, Weaver testified to seeing

dancers under the age of twenty-one drinking alcohol, being told in an employee

meeting that it was acceptable for dancers to drink alcohol, and observing

customers bring alcohol into the club for employees. Weaver’s affidavit tends to

prove that underage drinking occurs at nude dancing establishments and that the

age restriction would be effective in reducing the crime of underage drinking.

The district court denied Federal Heights’ motion to supplement its reply

brief with the affidavit. Our review of that decision, like review of other

evidentiary rulings, is for abuse of discretion. See Sports Racing Servs., Inc. v.

Sports Car Club of Am., Inc., 131 F.3d 874, 894 (10th Cir. 1997) (“[W]e review a

district court’s decision to exclude evidence at the summary judgment stage for

abuse of discretion.”). Plaintiffs objected to the affidavit as untimely and

irrelevant. The transcript indicates that the district court initially thought the

affidavit probative only as to the standing of plaintiffs and, hence, irrelevant to

consideration of the cross-motions. The court, however, subsequently recognized

that the city offered the affidavit to establish the city’s need for the age

restriction. Thus, the only ground upon which the district court could have denied

the motion was timeliness.

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 A district court may, in its discretion, consider an untimely affidavit for

“cause shown” if the failure to timely file the affidavit “was the result of

excusable neglect.” Fed. R. Civ. P. 6(b)(2). 14 Federal Heights contends that the

district court abused its discretion by concluding there was no evidence that the

age restriction would further the city’s interest in preventing secondary effects

“and yet the Court did not consider or allow the presentation of evidence which

directly addressed the adverse secondary effects.” The city’s position is

essentially that an abuse of discretion arises whenever a district court refuses to

consider evidence necessary to one party’s case. This court, however, will not

overturn the district court’s evidentiary decision unless we are firmly convinced

that it made a clear error of judgment. United States v. Magleby, 241 F.3d 1306,

1315 (10th Cir. 2001). The district court’s exclusion of the late affidavit was not

such an error. Cf. United States v. Diaz, 189 F.3d 1239, 1247 (10th Cir. 1999)

(holding district court has wide discretion to exclude expert testimony for which

notice is untimely); see also United States v. Adams, 271 F.3d 1236, 1244 (10th

14
Rule 6(d) requires that affidavits supporting a motion be served with the
motion. Fed. R. Civ. P. 6(d). Rule 6(b)(2) allows a district court, in its
discretion, to admit an untimely filing upon motion if the failure to timely act was
the result of excusable neglect. Fed. R. Civ. P. 6(b)(2). Rule 6(b) applies to
motions for summary judgment. See id. (excluding various motions from Rule
6(b)’s time extension procedures but not listing summary judgment motions);
Buchanan v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995) (per curiam) (reviewing a
district court’s decision to extend time to file summary judgment response under
Rule 6(b)(1)).

-29-
Cir. 2001) (holding district court justifiably excluded psychologist testimony on

timeliness grounds alone).

The only other materials offered by Federal Heights was Mayor Pro Tem

Richardson’s affidavit. Richardson testified that the City Council determined that

“the minimum age requirement of Code § 12-12-11 would assist Federal Heights

in reducing the negative effects of sexually oriented businesses.” Richardson also

testified that the City Council determined again in 1995 that the age restriction on

nude dancing would reduce secondary effects. She further testified that the

Council’s determination is “supported by the studies and information received”

after passage of the restriction. The studies referenced by the affidavit are not in

the record.

Federal Heights bears the burden at trial of proving that the age restriction

furthers its interest in preventing the secondary effects of nude dancing even

though nude dancing may still occur. To successfully resist plaintiffs’ motion for

summary judgment, Federal Heights, as the non-movant who bears the burden of

proof at trial, may not rest on its pleadings but must come forth with specific facts

showing there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). Richardson’s affidavit does not demonstrate

that there is a genuine issue for trial on whether the age restriction furthers the

city’s interest. Mayor Pro Tem Richardson merely opines in a conclusory fashion

-30-
that the age restriction furthers the city’s interest. The affidavit does not provide

a factual basis for Richardson’s conclusion. This court has held that such an

affidavit does not create a genuine issue of material fact. Murray v. City of

Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (conclusory affidavits not providing

factual bases for their conclusions not sufficient to create fact question); Hall v.

Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (conclusory, self-serving affidavit

does not create fact question). Thus, plaintiffs’ summary judgment motion should

have been granted, 15 and section 12-12-11(B) should be stricken.

VI. LICENSING PROVISIONS

In addition to restricting the age of those on the premises, Federal Heights’

sexually-oriented business ordinances establish a licensing scheme for such

businesses and their employees. In particular, section 12-12-10 requires all

employees and managers of adult entertainment establishments to apply for an

15
Accordingly, Federal Heights’ summary judgment motion should have
been denied as to the age restriction. Because the Richardson affidavit does not
create a genuine issue of fact, it is not evidence upon which a reasonable jury
could return a verdict for Federal Heights. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). It was the only evidence offered by Federal Heights,
and accepted by the district court, to show that the age restriction furthered its
interest in preventing secondary effects. Thus, there was no evidence that would
support a jury verdict for Federal Heights. The city, which had the burden of
proof at trial, was therefore not entitled to summary judgment. See Jeffries v.
Kansas, 147 F.3d 1220, 1228 (10th Cir. 1998) (noting that summary judgment
proper when “evidence is so one-sided that one party must prevail as a matter of
law” (quotation omitted)).

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“employee’s license.” 16 The Supreme Court has allowed licensing of adult

entertainment establishments so long as two classic evils of prior restraints are

not present. FW/PBS, 493 U.S. at 225-26. First, the licensing scheme may not

vest unbridled discretion in the government officials charged with the

responsibility of granting or denying the license. Id. Second, the licensing

scheme may not allow the decisionmaker unlimited time to decide on matters

affecting the license; otherwise, there is the “risk of indefinitely suppressing

speech.” Id. at 226. To ensure that the decision time is limited, certain

procedural safeguards are required. See id. at 227; Freedman, 380 U.S. at 58-60.

In the adult business licensing context, at least two procedural safeguards

are essential: (1) the licensor must make the decision whether to issue the license

within a specified and reasonable time period, (2) there must be opportunity for

prompt judicial review of the denial of a license. See FW/PBS, 493 U.S. at 228;

16
It appears from the record that neither the plaintiff dancers nor any of
Essence’s employees applied for or were denied an employee license.
Nevertheless, plaintiffs have standing to bring a facial challenge to section 12-12-
10. “Applying for and being denied a license . . . is not a condition precedent to
bringing a facial challenge to an unconstitutional law.” Assoc. of Cmty. Orgs. for
Reform Now v. Municipality of Golden, 744 F.2d 739, 744 (10th Cir. 1984); see
also City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56 (1988)
(“[O]ur cases have long held that when a licensing statute allegedly vests
unbridled discretion in a government official . . ., one who is subject to the law
may challenge it facially without the necessity of first applying for, and being
denied, a license.”); Freedman v. Maryland, 380 U.S. 51, 55-56 (1965) (plaintiff
who did not seek censor’s approval had standing to mount facial attack on
censorship scheme that had inadequate procedural safeguards).

-32-
Freedman, 380 U.S. at 58-60. 17 Plaintiffs contend that section 12-12-10 does not

contain these protections. 18 Because section 12-12-10 does not provide for any

judicial review following an employee license denial, this court need not address

the promptness of administrative and judicial procedures.

Section 12-12-10 provides that an employee license shall issue unless the

City Administrator finds one of several grounds of denial. See supra note 8.

Unlike sections 12-12-6 and 12-12-9, the sections dealing with denial, suspension,

and revocation of business licenses, section 12-12-10 lacks any mechanism for

review of the City Administrator’s decision. There is no provision for a public

hearing before the City Council following a license denial. Compare Federal

17
It is unclear whether a third procedural safeguard, requiring that the
censor bear the burden of going to court to justify a license denial, must also be
present in adult business licensing schemes. The Supreme Court split sharply
over the issue in FW/PBS. See 493 U.S. at 229-30 (plurality opinion); id. at 239-
42 (Brennan, J., concurring in the judgment); id. at 244-49 (White J., concurring
in part and dissenting in part); see also Ward v. County of Orange, 217 F.3d 1350,
1355 (11th Cir. 2000) (recognizing that a majority of the Supreme Court has not
recognized the distinction between adult business licensing schemes and
censorship schemes); 11126 Baltimore Blvd., Inc. v. Prince George’s County, 58
F.3d 988, 996 n.12 (4th Cir. 1995) (en banc) (“The splintered opinion of the
FW/PBS Court leaves the continued application of the third Freedman factor
subject to some speculation.”). We do not reach the issue.
18
Plaintiffs also contend, in a single sentence, that section 12-12-10 vests
the City Council with overbroad discretion. “Such perfunctory complaints fail to
frame and develop an issue sufficient to invoke appellate review.” Murrell v.
Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994). We will thus not consider the
argument.

-33-
Heights Mun. Code ch. XII, art. XII, §§ 12-12-6, -9. 19 In addition, there is no

authorization to appeal the City Administrator’s decision to a Colorado court.

Section 12-12-10 thus fails to provide any opportunity for judicial review and is

facially invalid. 20

VII. SEVERABILITY

Sections 12-12-10 and 12-12-11(B) are facially unconstitutional. Under

Colorado law, a section of a legislative enactment is severable if the remaining

portion is autonomous and the legislature’s will in passing the entire statute is not

thwarted by excision. See City of Lakewood v. Colfax Unlimited Assoc., 634 P.2d

52, 70 (Colo. 1981) (en banc). A severability clause creates a presumption that

the legislature would have been satisfied with the remaining portions of the

enactment. People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d

348, 371 (Colo. 1985) (en banc). If the remaining enactment, however, is so

“incomplete or riddled with omissions” that it lacks coherence, the entire

enactment should be stricken. Colfax Unlimited, 634 P.2d at 70.

Sections 12-12-10 and 12-12-11(B) were made part of the municipal code

by Ordinances 97-15 and 95-11 respectively. Both ordinances contain a

19
These provisions are summarized in footnotes 6 and 7.
20
Plaintiffs also contend that the fees charged for issuance of an employee
license constitute an unconstitutional tax on free expression. Because we
conclude that the employee licensing requirement is invalid on its face, we need
not decide the issue.

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severability clause. 21 Striking sections 12-12-10 and 12-12-11(B) does not render

Ordinances 97-15 and 95-11 incoherent since each code amendment made by the

ordinances is autonomous. Nor will striking either section render contradictory or

incoherent any other provision of the municipal code. We therefore conclude that

only section 6 of Ordinance 97-15, the provision enacting the present form of

section 12-12-10, and that portion of section 5 of Ordinance 95-11 enacting the

present form of section 12-12-11(B) should be stricken.

VIII. CONCLUSION

We affirm the district court’s exclusion of the Weaver affidavit. We

affirm in part and reverse in part the district court’s decision with regard to

the age restriction. Section 12-12-11(B) is stricken in its entirety. The district

court’s decision on the constitutionality of section 12-12-10 is reversed. The

section is stricken in its entirety. The portions of the district court’s opinion and

order dealing with the plaintiffs’ challenge to the disability provisions of sections

12-12-10 and 12-12-6, plaintiffs’ other challenges to section 12-12-6, and

21
Section 8 of Ordinance 95-11 and section 10 of Ordinance 97-15 both
read:
If any article, section, paragraph, sentence, clause or phrase of this
ordinance is held to be unconstitutional or invalid for any reason,
such decision shall not affect the validity or constitutionality of the
remaining portions of this ordinance. The city council hereby
declares that it would have passed this ordinance and each part or
parts hereof irrespective of the fact that any one part or parts be
declared unconstitutional or invalid.

-35-
plaintiffs’ challenges to section 12-12-9 should be vacated on remand. The

district court should then dismiss the portion of plaintiffs’ complaint relating to

the disability provisions and sections 12-12-6 and 12-12-9.

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