The City of Warren amended its zoning laws in 2005 to provide that the “site for [a] sexually oriented business must be located more than seven hundred fifty (750) feet from the nearest lot line [of] any of the following zoning districts: R-1-A, R-1-B, R-1-C, R-1-P, R-2, R-3, R-3-A, R-4, R-5, any mixed residential zone such as Planned Unit Development or the Downtown District.” The City later published its intent to amend this to ban all sexually oriented business “within the boundaries of the Warren Downtown Development Authority.” To maintain the status quo during consideration of the proposed amendment, the city council temporarily barred the issuance of new licenses for adult businesses in the downtown Warren area, effective on February 15, 2006. On February 14, the owner of the Big Dipper, the plaintiff business, applied for a sexually oriented business license (topless bar). The City was required to act on the application in 20 days, but, in fact, took 24 days to reject the application. On March 28, 2006, the City passed the proposed amendment, which included the location proposed for the plaintiff’s bar. Almost two years later, Big Dipper filed a Section 1983 action, claiming that the 2005 and amended distance requirements violated the First Amendment, and that the City’s untimely (by four days) rejection of its application acted as a prior restraint upon protected expression. In Big Dipper’s view, the real reason that the City amended its zoning law was not to limit the secondary effects of adult businesses, but simply to prevent new ones from opening in that area. The City moved for summary judgment, which the district court granted. On appeal, Big Dipper claimed that, unlike the 39 sites the City said were available for adult businesses, its own expert evidence was that less than ten sites were actually available as a result of the restrictions.
The Sixth Circuit affirmed. So long as zoning ordinances that regulated adult businesses—which typically on their face were content-based—aimed to limit the secondary effects of adult businesses, the ordinances would be assessed as content-neutral restrictions. The inquiry was restricted to whether the ordinance was designed to serve a substantial government interest and allowed for reasonable alternative avenues of communication. Further, a city need only show that its “predominate concerns were with the secondary effects” of adult businesses in order to defeat a claim of illicit motive. The city met that threshold: its council “received no less than 49 studies and reports concerning the secondary effects of adult businesses before enacting” the 2005 restriction, and those “reports remained valid for purposes of the March 2006 amendment.” That amendment was specifically intended to “halt[] property value deterioration,” “eliminate the causes of deterioration” and “eliminate blight.” Big Dipper did not dispute that controlling secondary effects was a substantial government interest, or argue that the city council lacked an empirical basis to conclude that the laws furthered that interest, but claimed that the ordinances left open insufficient areas in which adult businesses could locate.
The court rejected the argument that this required fixing a minimum percentage or number of acres that the city had to leave open for adult business use, regardless of the other circumstances in the case. The circumstances included the fact that a “total of two applications for adult businesses were filed in the city of Warren during the five years leading up to this lawsuit.” In addition, to “create a genuine issue of material fact, a party must do more than file an expert report with the district court. It was Big Dipper’s job, not the district court’s, to present argument as to how [the expert’s] report created genuine issues of material fact as to the number of sites available to Big Dipper’s business.” The appellate court did reduce the number of available sites to 27 because some of the 39 sites did not meet the minimum square footage prescribed for the zoning. In sum, however, a “supply of sites more than 13 times greater than the five-year demand is more than ample for constitutional purposes.”
Although there was evidence of city council members’ comments indicating a hostility to adult businesses and a desire to restrict adult businesses’ speech as “a motivating factor” behind the ordinance, this was “precisely the showing the Supreme Court [stated was] not sufficient to trigger heightened scrutiny of this type of ordinance.” Lastly, that the city took 24 days rather than 20 to act on Big Dipper’s application was “immaterial for constitutional purposes.” The City maintained the status quo in that time, and Big Dipper could have (but didn’t) seek judicial review of the licensing decision, and waited 20 months to bring this suit.
Big Dipper Entertainment LLC v. City of Warren, No. 09-2339 (6th Cir. 4/13/2011).
The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/11a0091p-06.pdf
This abstract appears in the April 20, 2011 IMLA E-News. For more information visit www.imla.org
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