                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2793
                                    ___________

Blue Moon Entertainment, LLC,        *
                                     *
              Appellant,             *
                                     * Appeal from the United States
       v.                            * District Court for the
                                     * Western District of Missouri.
City of Bates City, Missouri, a      *
Municipal Corporation; Greg Ford     *
in his individual capacity,          *
                                     *
              Appellees.             *
                                ___________

                              Submitted: January 12, 2006
                                 Filed: March 10, 2006
                                  ___________

Before BYE, HEANEY, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Blue Moon Entertainment, LLC (“Blue Moon”) appeals the district court’s
denial of its motions for a temporary restraining order and/or a preliminary injunction.
We vacate the district court’s order and remand for further proceedings.
                                          I.

       Blue Moon Entertainment owns a parcel of developed, but apparently unzoned,
property, identified as 304 Old U.S. Highway West, Bates City, Missouri. Blue Moon
seeks to operate an adult entertainment establishment, featuring dancing performed
by women attired only in “pasties” and “G-strings.” All businesses in Bates City are
required to obtain an occupational license prior to commencing operations, and on
January 8, 2004, Blue Moon filed an application for such a license. According to the
municipal code, if no action is taken on an application within fifteen days, the
applicant may appeal to the Board of Aldermen of Bates City. On January 28, 2004,
after no action had been taken on its license, Blue Moon filed a written appeal.

      In a letter dated February 24, 2004, Bates City informed Blue Moon that the
municipal code had been amended on April 10, 2001, to add section 406. This
section includes a requirement that businesses obtain permits for certain “conditional
uses,” and it classifies an “adult night club” as a “conditional use which must be
approved after public hearings before the Planning and Zoning Commission and the
Board of Aldermen.” The new section provides, in pertinent part:

      Any of the following uses may be allowed by special permission of The
      Board of Aldermen after a recommendation from the Planning and
      Zoning Commission under the standard included herein and under such
      conditions as the Board of Aldermen may impose. After a public
      hearing by the Planning and Zoning Commission and a public hearing
      by the Board of Aldermen a “Conditional Use Permit” may be issued.
      The issuance of this permit must provide that in the judgment of the
      Board of Aldermen such use will not seriously injure the appropriate use
      of neighboring properties, and will conform to the general intent and
      purpose of this ordinance, and shall comply with height and area
      requirements of the district the special use is located in.




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      Conditions set by the Board of Aldermen may include, but [are] not
      limited to; special yard requirements, open spaces, buffer zones, fences,
      walls, landscaping and it’s [sic] maintenance, erosion control, street
      improvement requirement, vehicle parking, building time frame, hours
      of operation, building location, or any other condition the Board of
      Aldermen may deem necessary to ensure the compatibility with
      surrounding uses, and to preserve the public health, safety, and welfare.

       Section 406 further states that “adult night clubs” are “allowed in C-1 Districts
provided that no such use be established within 1,250 [feet] of any church, school,
day care facility, public building, public or private park, hospital, any use listed in
Section A-12 or A-15, or area zoned for residential use.” To receive a permit, the
applicant also must show that the proposed use will not “be contrary to the public
interest or injurious to nearby properties, and the spirit and intent of the ordinance
will be observed,” the use will not “encourage or enlarge the development of a
‘blighted’ area,” and the use will not “cause an unwanted increase in the normal law
enforcement exposure in the area.” Finally, the “[p]arking areas shall be of hard
surface and designed by an engineer to drain storm water in an appropriate manner
not on adjoining properties.” (J.A. at 30-31).

       In its letter responding to Blue Moon’s appeal, Bates City explained that
because the occupational licensing provision “requires that the applicant for a
occupational license ‘comply in every respect with the zoning ordinance and/or other
ordinances of the City,’ and a conditional use permit has not yet been obtained, the
issuance of an occupational license is not appropriate.” (J.A. at 75). Bates City
concluded that until Blue Moon obtained a conditional use permit, it would not be
eligible for an occupational license. On March 3, 2004, Bates City informed Blue
Moon that in addition to obtaining a conditional use permit, Blue Moon must also
request a zoning change for the property to a C-1 General Commercial District. (J.A.
at 77).



                                          -3-
       Blue Moon did not apply for a conditional use permit or seek to have the
property rezoned, but instead filed suit in the district court. The complaint alleged
that section 406 was enacted in violation of municipal and state law, and,
alternatively, that it was an unconstitutional restriction on Blue Moon’s rights under
the First and Fourteenth Amendments. Blue Moon sought a temporary restraining
order and/or a preliminary injunction to enjoin enforcement of the ordinance. The
district court denied Blue Moon’s motion for injunctive relief, and Blue Moon
appeals.

                                            II.

       In determining whether to issue a preliminary injunction, the district court must
consider (1) the threat of irreparable harm to the movant, (2) the balance between
such harm and the injury that granting the injunction will inflict on the other
interested parties, (3) the probability that the movant will succeed on the merits, and
(4) whether the issuance of an injunction is in the public interest. Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). We review the
district court’s decision for abuse of discretion. Id. at 114.

       In denying injunctive relief, the district court correctly noted that the failure of
a movant to show irreparable harm is an “independently sufficient basis upon which
to deny a preliminary injunction.” Blue Moon Entm’t, L.L.C. v. Bates City, No. 04-
1050-CV-W-HFS, slip op. at 3 (W.D. Mo. May 13, 2005) (citing Watkins Inc. v.
Lewis, 346 F.3d 841, 844 (8th Cir. 2003)). Seeking to maintain consistency with a
prior unpublished opinion from the same court, Blue Springs Gifts, L.L.C. v. City of
Blue Springs, No. 00-0586-CV-W-SOW-ECF (W.D. Mo. June 15, 2000), the district
court held that because Blue Moon’s “alleged harm might be remedied upon a simple
application,” Blue Moon could not demonstrate the irreparable harm necessary to
obtain injunctive relief, unless it first applied for, and was denied, a conditional use
permit. Blue Moon Entm’t, L.L.C., slip op. at 4 (internal quotation omitted). The

                                           -4-
court noted that it would not have taken this course “if there were Eighth Circuit law
or subsequent law placing it in serious doubt,” id. at 5, but that in the absence of such
precedent, the ruling of another judge on the same court should be followed “unless
plainly unreasonable.” Id. at 4 n.4. The district court thus denied Blue Moon’s
motion for a preliminary injunction based on the absence of irreparable harm, and did
not consider the merits of the First Amendment claim. Id. at 5.

       Bates City does not dispute that Blue Moon’s proposed activities are protected
by the First Amendment, in light of the Supreme Court’s conclusion that even fully
nude dancing is expressive conduct entitled to some First Amendment protection.
City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion); id. at 310
(Souter, J., concurring); id. at 319 (Stevens, J., dissenting); Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 565-66 (1991) (plurality opinion); id. at 592 (White, J.,
dissenting); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); see also
SOB, Inc. v. County of Benton, 317 F.3d 856, 859 (8th Cir. 2003). First Amendment
activities generally may be restricted by a zoning ordinance that contains “content-
neutral” regulations governing the time, place, and manner of expression, so long as
the ordinance is designed to serve a substantial governmental interest and does not
unreasonably limit alternative avenues of communication. City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 47 (1986). If, however, the ordinance requires that an
individual obtain a license or permit prior to engaging in the protected activity, then
the licensing scheme is analyzed as a “prior restraint” on the activity. FW/PBS, Inc.
v. City of Dallas, 493 U.S. 215, 223 (1990) (plurality opinion); id. at 238 (Brennan,
J., concurring in the judgment); City of Lakewood v. Plain Dealer Publ’g Co., 486
U.S. 750, 757 (1988).

       Ordinarily facial challenges to legislation are disfavored, but in the context of
prior restraints on speech or expression, the Supreme Court has “long held that when
a licensing statute allegedly vests unbridled discretion in a government official over
whether to permit or deny expressive activity, one who is subject to the law may

                                          -5-
challenge it facially without the necessity of first applying for, and being denied, a
license.” City of Lakewood, 486 U.S. at 755-56; see also FW/PBS, Inc., 493 U.S. at
223; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969); Freedman v.
Maryland, 380 U.S. 51, 56 (1965). This is because “the mere existence of the
licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates
parties into censoring their own speech, even if the discretion and power are never
actually abused.” City of Lakewood, 486 U.S. at 757. A licensing scheme generally
must provide narrow, objective, and definite standards to guide the licensing
authority, Shuttlesworth, 394 U.S. at 151, may only impose a restraint for a specified
and reasonable period, and must provide for prompt judicial review. Freedman, 380
U.S. at 58-59; FW/PBS, 493 U.S. at 228. It must not vest unbridled discretion in the
hands of a government official. FW/PBS, Inc., 493 U.S. at 225-26.

       Section 406 of the Bates City Municipal Code requires an adult business to
obtain a conditional use permit prior to engaging in a protected activity, and,
therefore, it is a prior restraint that Blue Moon may challenge facially. See, e.g.,
FW/PBS, Inc., 493 U.S. at 225. The loss of First Amendment freedoms, even for the
period required to litigate a facial challenge, may constitute an irreparable injury. See
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). Thus, the district court
erred in finding that Blue Moon’s failure to apply for the conditional use permit is per
se fatal to its ability to demonstrate irreparable harm.

       At oral argument, Bates City argued that even if the conditional use permit
requirement, as currently designed by the city, amounted to an unconstitutional prior
restraint, Blue Moon still could not show irreparable harm, because adult businesses
are permitted only within areas zoned as “C-1,” and Blue Moon has not sought to
have the parcel rezoned accordingly. Blue Moon is not entitled to injunctive relief,
the city contends, because its inability to operate an adult business at the current
location cannot fairly be traced to the permit requirement. See, e.g., M.J. Entm’t v.
City of Mount Vernon, 234 F. Supp. 2d 306, 311-13 (S.D.N.Y. 2002). Because the

                                          -6-
district court concluded that Blue Moon could not show irreparable harm without first
applying for a conditional use permit, it did not address this argument regarding
zoning. Nor did the district court consider whether the permit scheme conformed to
constitutional requirements, whether the ordinance was validly enacted, or whether
Blue Moon could satisfy the other Dataphase requirements for the granting of
injunctive relief. Accordingly, we remand the case for the district court to develop
the evidentiary record, if appropriate, and to consider these matters in the first
instance.1

      We vacate the district court’s order denying Blue Moon’s motion for a
preliminary injunction and remand for further proceedings not inconsistent with this
opinion.
                       ______________________________




      1
        Blue Moon also argues that the district court erred by denying its motion to
file excess pages as part of its suggestions in support of its motion for injunctive
relief. It is evident that the district court accepted the overlength submission and then
denied the motion as moot, because the suggestions already had been filed. (App. at
115, 119-20). Accordingly, there is no merit to this aspect of Blue Moon’s appeal.

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