Posted by: Patricia Salkin | January 30, 2018

Fed Dist Court of SD Grants Preliminary Injunction in Favor of Sexually Orientated Business Owner Finding City Code’s Definition of Educational Facility was Vague

The following post was authored by Matthew Loeser, Esq.

Plaintiff David Eliason desired to open a sexually oriented business that would sell videos and magazines. Pursuant to Rapid City Municipal Code (“RCMC”), sexually oriented businesses include adult-only bookstores, adult novelty shops and adult video stores. Mr. Eliason submitted an application for development review to the Planning Commission in order to obtain a conditional use permit. The Planning Commission approved the conditional use permit. BHT, a martial arts studio operating near the location of Mr. Eliason’s planned business, appealed the permit approval arguing that Mr. Eliason’s business should not have received a conditional use permit because BHT, which was within 1,000 feet of Mr. Eliason’s proposed location, was an “educational facility” under § 17.50.186(D). The Common Council voted to deny Mr. Eliason’s conditional use permit, and plaintiff appealed.
On appeal, plaintiff first argued that the City Code imposed an unconstitutional prior restraint on their First Amendment rights because they could not open their business without a conditional use permit. As applied, the court found the definition of educational facility in § 17.50.186(D)(1)(b) was not sufficiently “narrow, objective, and definite” as applied to plaintiff. This definition failed to provide guidance on what other facilities fell within its scope, other than specifying it “includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school.” Furthermore, due to the way the definition was written, the Rapid City government entities formed opposite interpretations. As such, the court held §17.50.186(D) (1)(b), as applied to plaintiffs, was an unconstitutional prior restraint.
Plaintiffs also argued that the definition of “educational facility” was unconstitutionally vague. As above, plaintiffs contended that the contrast between the interpretations of the City Council and the City Attorney and Planning Commission supported a finding that the ordinance was unconstitutionally vague. Here, in determining whether BHT was an educational facility, the record indicated that several Councilmembers prioritized “keeping the adult oriented businesses away from our children.” The court found, however, that these considerations were not in § 17.50.186(D)(1)(b). Thus, the court found plaintiffs were likely to prevail on the merits with respect to plaintiffs’ as-applied prior restraint and vagueness challenges. Based on this determination, the court determined that it did not need to analyze plaintiffs’ third argument regarding availability of alternative locations.

Because the court concluded plaintiffs established they were likely to prevail on certain First Amendment arguments, the court held plaintiffs had shown an injunction supported the public interest. Furthermore, since plaintiffs sought to carry out expression the First Amendment protected, and defendant did not provide an adequately substantiated amount for security, the court found no security was justified. Accordingly, the plaintiffs’ preliminary injunction motion was granted.

Eliason v City of Rapid City, 2018 WL 620481 (D. SD 1/29/2018)


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