Posted by: Patricia Salkin | January 27, 2014

Fed. District Court in MI Grants Preliminary Injunction Preventing the Enforcement of a Town’s Adult Use Ordinance Based on Overbreadth

Risky Business alleged that the County of Crow Wing violated the First and Fourteenth Amendments by attempting to enforce a new adult use ordinance against it, and moved for a preliminary injunction preventing enforcement of the ordinance. Plaintiff argued that Crow Wing does not have the authority to enforce the ordinance against Risky Business because Risky Business is already subject to an ordinance in the City of Brainerd. The Crow Wing Ordinance contains several sections, including licensing, fees, and sanctions for violations, inspections, and regulation and performance standards. The Ordinance requires that sexually-oriented businesses obtain a license from Crow Wing’s Public Health Department to operate their businesses.

In reaching its decision, the court first analyzed whether the ordinance was narrowly tailored; if an ordinance is not narrowly tailored, it is overbroad. The First Amendment doctrine of overbreadth is an exception to the general rule that a person to whom a statute may constitutionally be applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others. The Ordinance’s licensing requirements applied to any “business or enterprise” that met certain qualifications; the court provided the example that these requirements could apply to an art museum that included paintings of nude women, or a Walmart even if only a small forty square foot area contained adult materials. The court therefore found that ordinance overbroad, and in turn, that since Risky Business established a sufficient likelihood of success on its First Amendment claim, it also has shown a threat of irreparable harm from the deprivation of its First Amendment rights.

The court further found that allowing a business to operate while the Court determines the constitutionality of the County’s ordinance would not undermine the authority of the governmental body. Because of these aforementioned reasons, and that the County failed to show that the ordinance was in the public interest, the court granted Risky Business’ preliminary injunction.

Note: The County settled the dispute, see:

Risky Bus. Novelties and Videos, Inc. v. County of Crow Wing, 2013 WL 1435235 (D. Minn. 2013)

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