Tagged: dormant commerce clause

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The Dormant Commerce Clause, Vegas-Style

Many Las Vegas tourists are surprised when they learn that prostitution is illegal in Clark County, Nevada. Law-biding johns who don’t want to risk jail avoid the illicit Vegas trade. They drive to neighboring Nye County to hire a duly licensed “professional.”

In Nye, the vice is legalized but it is heavily regulated. Nye County Code 9.20.090(A) requires a prospective brothel owner to provide evidence that he/she is “a bona fide resident of [Nevada] and has been so for six (6) months” prior to being licensed. Section 9.20.190 provides that “[a]ll licensees and their managers must be available to the board at all times, and cannot operate the premises from addresses located in other states.”

These requirements prevented Texas resident Bruce Kahn from applying to own a Nevada brothel. In TCR Holdings, LLC v. Nye County, he challenged the application residency requirements as violating the dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. The equal protection claim was a non-starter, but the district court ruled for the plaintiff on dormant Commerce Clause grounds. According to the district court, the dormant Commerce Clause requires that a Texan be able to apply to be a licensed owner of a brothel operating in Nevada on terms equal with a Nevadan.

I believe the district court’s ruling is incorrect, or at the very least may have some serious unintended consequences for plaintiff Kahn.

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