                                                  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
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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
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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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