                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 21 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAVID COOPER, DBA Sextasy, DBA                   No. 11-16900
Show and Tell; EFJ, LLC;
INTERACTIVE MEDIA                                D.C. No. 2:10-cv-00763-KJD-
COMMUNICATIONS,                                  GWF

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

CLARK COUNTY, NEVADA;
VIRGINIA VALENTINE; JACQUELINE
HOLLOWAY; NANCY HANCOCK;
GARY TORGERSON; DANIEL
HIGGINS; BRUCE L. WOODBURY;
TOM COLLINS; CHRIS
GIUNCHIGLIANI; LAWRENCE
WEEKLY; SUSAN BRAGER; RORY
REID; CHIP MAXFIELD,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                        Argued and Submitted May 9, 2013
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.

      David Cooper challenges the district court’s dismissal of his lawsuit for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). On a

motion to dismiss, we “accept the plaintiffs’ allegations as true and construe them

in the light most favorable to plaintiffs.” N.M. State Inv. Council v. Ernst & Young

LLP, 641 F.3d 1089, 1094 (9th Cir. 2011) (quoting Gompper v. VISX, Inc., 298

F.3d 893, 895 (9th Cir. 2002)). We “will hold a dismissal inappropriate unless the

complaint fails to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

      Cooper has standing under Article III because he alleges that he has been

improperly denied a license to which he claims he is legally entitled, and because

he requests relief – the restoration of his right to obtain a business license – that a

favorable decision would remedy. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-62 (1992). We affirm the district court’s dismissal of Cooper’s due

process claim based on Clark County’s failure to issue or deny his license

application in 45 days because Cooper does not allege that the untimely notice

interfered with his constitutional rights to notice and “the opportunity to be heard.”

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313-14 (1950).




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      We reverse the district court’s determination that Cooper failed to state a due

process claim based on the County’s arbitrary denial of his license application. See

Shanks v. Dressel, 540 F.3d 1082, 1088-89 (9th Cir. 2008) (noting that an “abuse

of power” lacking “any reasonable justification” can be constitutionally arbitrary

(internal quotation marks omitted)). “[A] person can have a constitutionally

protected property interest in a government benefit, such as a license or permit,”

Gerhart v. Lake Cnty., 637 F.3d 1013, 1019 (9th Cir. 2011), where the person has

“a legitimate claim of entitlement” to that permit, Town of Castle Rock v.

Gonzales, 545 U.S. 748, 756 (2005) (quoting Board of Regents v. Roth, 408 U.S.

564, 577 (1972)). The Clark County Code in effect when this lawsuit was filed

provided that the County could deny a license to an applicant where the applicant

“fail[ed] to comply with any of the provisions of this code,” and where the

applicant “made false, misleading or fraudulent statements with respect to any

material fact contained in the business license application and/or supporting

documentation.” Clark County Code § 6.04.090. At oral argument, counsel for

Clark County conceded that if an applicant for a county license satisfied all of the

conditions for the license without making false, misleading, or fraudulent

statements, the county must grant the license.




                                          3
      In light of this concession, it is plausible that Clark County denied Cooper a

license to which he had a legitimate claim. There are no allegations in the

complaint to support the County’s contention that Cooper was ineligible for a

Restaurant Category 2 license, or that he made any false, misleading, or fraudulent

statements. Cooper alleged that his facility had “seating for 12 or more,” as the

license required. Cooper also applied for a banquet license, which corroborates his

contention that he intended to serve food in the facility. Cooper’s complaint stated

that he “listed ‘Sextasy’ as the name of the proposed business.”

      Further, we reverse the district court’s determination that Cooper failed to

state an equal protection claim. “Where, as here, state action does not implicate a

fundamental right or a suspect classification, the plaintiff can establish a ‘class of

one’ equal protection claim by demonstrating that it has been intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.” Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944

(9th Cir. 2004) (internal quotation marks omitted), overruled on other grounds as

stated in Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d

1020, 1025 (9th Cir. 2007). Cooper alleged that his club was similarly situated to

comparable establishments. He also alleged that Clark County “knowingly”

awarded permits to other similarly situated establishments while denying him those


                                            4
same permits. Finally, Cooper alleged that there was no rational basis for a

distinction between Cooper’s intended business and the businesses of the

comparable establishments.

      Cooper has also alleged that the denial of his license application is improper

because Clark County’s statute defining ‘specified sexual activities’ is

unconstitutionally overbroad and vague. Clark County Code § 30.08.030. To the

extent that Cooper argues overbreadth, we reject that argument for failure to

sufficiently allege overbreadth in his complaint. But Cooper has stated a plausible

claim that the statute is unconstitutionally vague by asserting that the statute fails

to provide sufficient notice to enable persons to understand what conduct is

prohibited. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). We thus

reverse the district court’s dismissal of Cooper’s vagueness claim.

      We express no opinion on how this case might be resolved upon

development of a factual record and a motion for summary judgment.

      REVERSED.




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