Content-neutral zoning ordinance that resulted in total ban on adult entertainment businesses deemed valid; alternative avenues of communication existed in other jurisdictions

by Gary Taylor

David Peterson and The Juice Bar, LLC v. City of Florence (MN)
(Federal 8th Circuit Court of Appeals, August 16, 2013)

Florence, Minnesota – a municipality in Lyon County – has a population of 39, and covers approximately 0.2 square miles.  It is home to sixteen single-family residences, a shop where Florence’s road equipment is stored, an unheated office that serves as the city office, and a park.

In 2008 the city adopted an ordinance prohibiting the operation of a sexually-oriented business within 250 feet of day cares, schools, parks, libraries, and any property zoned for residential use.  At the same time the city adopted a zoning ordinance that established three zoning districts (residential, commercial, and business) and zoned the entire city residential.  Sexually-oriented businesses were only permitted in the commercial district.

Peterson opened The Juice Bar in December 2010, which featured live, nude dancers.  The next day Peterson was charged with three misdemeanor counts for violating the sexually-oriented business ordinance, for operating The Juice Bar within 250-feed of a park.  Peterson filed suit against the city to enjoin the enforcement of the ordinance, for a declaratory ruling that the ordinance violated his First Amendment freedom of speech rights, and sought damages and attorney fees.  Shortly thereafter in 2011, the city repealed its sexually-oriented business ordinance in its entirety, and amended its zoning ordinance to eliminate the business and commercial districts, citing the city’s “limited infrastructure, staff, and resources” which could not support business or commercial uses.  The criminal case against Peterson was dismissed, but Peterson’s First Amendment suit continued; that is, until the district court dismissed the suit.  Peterson appealed the dismissal.

Peterson first argued that the 2011 zoning ordinance constitutes an invalid total ban on the operation of adult entertainment businesses in the city.  The 8th Circuit agreed that the zoning ordinance resulted in a total ban; however, this was not fatal to the ordinance because the ordinance prohibited an entire class of conduct – all commercial and business uses – not just adult entertainment establishments. “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” A content-neutral time, place, or manner regulation will be upheld if it is narrowly tailored to serve a substantial governmental interest and leaves open ample alternative channels for communicating the speech.  The Court found that the city articulated substantial governmental interests with its zoning ordinance; mainly the preservation of the quality of life of its residents, and its limited ability to accommodate commercial or business establishments.  Further, the Court found that ample alternative channels of communicating the speech existed because over 200 acres of Lyon County were zoned in a manner that would accommodate adult entertainment businesses.  “The Supreme Court has left open the question of whether, at least in the case of small municipalities, opportunities to engage in the restricted speech in neighboring communities may be relevant to determining the existence of adequate alternative channels.”  The 8th Circuit thus walked through that opening to close the door on Peterson’s claim.

 

 

 

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