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  Shortly thereafter in 2011, the city repealed its sexually-oriented business ordinance in its entirety, and amended its zoning ordinance to eliminate the business and commercial districts, citing the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.




Hermosa Beach (CA) total ban on tattoo parlors held to violate First Amendment

by Gary Taylor

Anderson v. City of Hermosa Beach (CA)
(Federal 9th Circuit Court of Appeals, September 9, 2010)

Anderson sought to establish a tattoo parlor in the City of Hermosa Beach (city), but the Hermosa Beach Municipal Code effectively bans tattoo parlors. Anderson sued the city alleging that the code provision is facially unconstitutional under the First and Fourteenth Amendments. The parties filed cross-motions for summary judgment, and the district court denied Anderson’s motion and granted the city’s motion. Anderson appealed the decision to the 9th Circuit Court of Appeals.

Because of the potential health concerns implicated by tattooing, the State of California requires “[e]very person engaged in the business of tattooing . . . [to] register . . . with the county health department of the county in which that business is conducted.”   The city lies within the County of Los Angeles (County). There are nearly 300 tattoo establishments in the County and over 850 tattooists. However, the County has only one inspector monitoring the parlors. Many tattoo parlors have never been inspected and are subject to no regulations other than the requirement to register with the County. Ostensibly because of the health concerns associated with tattooing and the lack of adequate County inspection the Hermosa Beach Municipal Code does not list tattoo parlors as a permitted use in any district. Indeed, on November 20, 2007, the City’s Planning Commission adopted a resolution against amending the Code to permit tattoo parlors.

The Court of Appeals began its analysis with a recognition that while pure speech is entitled to First Amendment protection unless it falls within one of the “categories of speech . . . fully outside the protection of the First Amendment,” (obscenity, conduct intending to express an idea is constitutionally protected only if it is “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” which means that “[a]n intent to convey a particularized message [is] present, and . . . the likelihood [is] great that the message w[ill] be understood by those who view it.” Even where conduct expressive of an idea is protected by the First Amendment, “[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”  Accordingly, the Court’s task was to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.

The Court concluded that the city’s ban on tattoo parlors was facially unconstitutional because tattooing is purely expressive activity, rather than conduct expressive of an idea.  “Tattoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection.”  It noted that the principal difference between a tattoo and a pen-and-ink drawing that would unquestionably be considered purely expressive, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo.

The Court further found that the tattooing process (which is prevented from occurring because of the ban on tattoo parlors) is similarly purely expressive activity.   “Neither the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded. Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation.

Finally, the Court concluded that the business of tattooing qualifies as purely expressive activity rather than conduct with an expressive component, and is therefore entitled to full constitutional protection.  It cited cases that established that “the degree of First Amendment protection is not diminished merely because the protected expression is sold rather than given away.”

Having concluded that the tattoo, the tattooing process, and the business of tattooing are purely expressive activities, the Court then considered whether the city’s total ban on tattoo parlors was a reasonable time, place and manner restriction.  The Court noted particular concern with laws that foreclose an entire medium of expression, because “by eliminating a common means of speaking, such measures can suppress too much speech.” The Court concluded that the total ban was substantially broader than necessary to achieve the city’s significant health and safety interests, and it entirely foreclosed a unique and important method of expression.





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