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Xiong v. City of Moorhead: US District Court : ZONING | 1ST AMENDMENT - studies not too old; amortization not too short; questions as to available land, hours

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Pao Xiong d/b/a Civil No. 08-27 (DWF/RLE)
Huff & Puff Tobacco,
Plaintiff,
v. MEMORANDUM
OPINION AND ORDER
City of Moorhead, Minnesota,
a municipal corporation,
Defendant.
Jeff Scott Olson, Esq., The Jeff Scott Olson Law Firm, SC; and Randall D. B. Tigue,
Esq., Randall Tigue Law Offices, PA, counsel for Plaintiff.
James J. Thomson, Esq., and Mary D. Tietjen, Esq., Kennedy & Graven, Chartered,
counsel for Defendants.
INTRODUCTION
This matter is before the Court upon a Motion for Summary Judgment brought by
the Defendant City of Moorhead, Minnesota (the City). For the reasons set forth
below, the Court grants in part and denies in part the Citys motion.
BACKGROUND
In January 2007, the City adopted municipal ordinance number 10-23-3, which
governs the zoning for adult establishments. The ordinance restricts the location of adult
businesses to the Citys light and heavy industrial districts. The ordinance also contains
2
distance restrictions that prohibit adult businesses from being located less than 1,000 feet
from the:
nearest property line of any land in a residential zone or in a planned unit
development zone developed for residential use or an existing residential
use, or of any daycare center, school, establishment with a liquor license,
library, public park, religious institution, playground or other public
recreational facility in any zoning district, whether within the city limits of
Moorhead or not.
(Def. City of Moorheads Mem. of Law in Supp. of its Mot. for Summ. J. (Defs
Mem.) at Ex. 2.)
The terms of the ordinance further provide for the dispersal of adult businesses by
restricting adult businesses from locating within 500 feet of any other adult
establishment. The ordinance contains a one-year amortization provision, but this time
period may be extended for an additional year upon application to the City. Finally, the
ordinance restricts the hours of operation of adult businesses, requiring that they close
between midnight and 10:00 AM and that they close on Sundays and national holidays.
Plaintiff Pao Xiong (Plaintiff) owns and operates Huff & Puff Tobacco (Huff &
Puff), a business within the Citys limits. Huff & Puff is an adult establishment subject
to regulation under the ordinance because more than twenty percent of its floor space is
devoted to sales of adult goods.1 Huff & Puff sells magazines, videos, vibrators, rubber
goods and novelties, handcuffs, blindfolds and lubricants, as well as handbags, greeting
cards, herbal medicines, tobacco products and accessories, herbal selvia, and incense.
Huff & Puff makes adult products available for off-site consumption, and does not
1 Seventy to seventy-five percent of Huff & Puffs floor space is occupied by
sexually explicit materials.
3
provide on-site adult entertainment. Huff & Puffs location does not comply with the
Citys ordinance and. in order to remain in business with the same business model,
Plaintiff must relocate Huff & Puff to another area. Plaintiff has not yet relocated Huff &
Puff or changed the mix of products available there. Plaintiff instead has sued the City,
challenging the ordinance under the First Amendment to the U.S. Constitution. Plaintiff
challenges several specific aspects of the ordinance and its enactment, and also contends
that the ordinance is facially invalid.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
Court must view the evidence, and the inferences that may be reasonably drawn from the
evidence, in the light most favorable to the nonmoving party. Enter. Bank v. Magna
Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has
stated, [s]ummary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which
are designed to secure the just, speedy and inexpensive determination of every action.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at
747. The nonmoving party must demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th
4
Cir. 1995). A party opposing a properly supported motion for summary judgment may
not rest upon mere allegations or denials but must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986).
II. Challenges to the Ordinances Terms and Enactment
An ordinance that does not constitute an outright ban on adult establishments is
properly analyzed as a form of time, place, and manner regulation. City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 46 (1986). Time, place, and manner regulations are
acceptable if they are content-neutral and if they are designed to serve a substantial
governmental interest and do not unreasonably limit alternative avenues of
communication. Id. at 47.
In applying the City of Renton test, the first task is to determine whether the
ordinance is content-neutral. 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. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
Thus, even if a time, place, and manner ordinance regulates only businesses selling
sexually explicit materials, the ordinance is content-neutral if its purpose is to lessen
undesirable secondary effects attributable to such businesses, such as increased crime,
lower property values, or deteriorating residential neighborhoods. ILQ Investments, Inc.
v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir. 1994). Here, the Citys regulation was
targeted toward reducing negative secondary effects. The City specifically considered
5
adverse secondary effects arising from adult property uses such as increased crime,
blight, and decreased property values, particularly where adult establishments are located
near each other. The City was also especially concerned about locating adult
establishments near sensitive uses, like schools and public parks, and about preventing
blight along the Citys gateway areas bordering Interstate 94. The ordinance is, therefore,
content-neutral.
To survive First Amendment scrutiny, a content-neutral regulation also must be
designed to serve a substantial governmental interest. City of Renton, 475 U.S. at 47.
Regulations reasonably designed to curb unwanted secondary effects of sexually oriented
businesses serve a substantial governmental interest. Id. at 50. In identifying and
measuring such secondary effects, a city may rely upon studies or evidence generated by
other cities so long as [that] evidence . . . is reasonably believed to be relevant to the
problem that the city addresses. Id. at 51-52.
Government bodies may not, however, rely on shoddy data or reasoning in
enacting an ordinance regulating adult property uses. City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425, 438 (2002). Under Alameda Books,
[t]he municipalitys evidence must fairly support the municipalitys
rationale for its ordinance. If plaintiffs fail to cast direct doubt on this
rationale, either by demonstrating that the municipalitys evidence does not
support its rationale or by furnishing evidence that disputes the
municipalitys factual findings, the municipality meets the standard set
forth in Renton. If plaintiffs succeed in casting doubt on a municipalitys
rationale in either manner, the burden shifts back to the municipality to
supplement the record with evidence renewing support for a theory that
justifies its ordinance.
6
Id. at 438-439. Justice Kennedys concurring opinion in Alameda Books cautions that a
municipality must advance some basis to show that its regulation has the purpose and
effect of suppressing secondary effects, while leaving the quantity and accessibility of
speech substantially intact.2 Id. at 449.
A. Evidence Supporting the Ordinance
Plaintiff challenges the Citys evidence supporting the ordinance. Plaintiff
contends that the data supporting the ordinance was inadequate because it is shoddy
data under Alameda Books.
The City was presented with several studies for its consideration in enacting the
ordinance, including a 1989 Report of the Attorney Generals Working Group on the
Regulation of Sexually Oriented Businesses prepared by the Minnesota Attorney
General; a 1984 study from Indianapolis called Adult Entertainment Business in
Indianapolis, An Analysis; a Los Angeles study from 1977 entitled Study of the Effects
of the Concentration of Adult Entertainment Establishments; a 1989 study called
Relation of Criminal Activity and Adult Businesses relating to Phoenix, Arizona; a
St. Paul, Minnesota study from 1987 entitled Adult Entertainment, 40-Acre Study; and
2 Plaintiff argues that Alameda Books heightened the evidentiary standard applied in
cases such as this one. The Eighth Circuit has stated that Alameda Books probed the
evidentiary parameters of the Renton test and noted that Justice Kennedys concurrence,
which is narrower than the plurality opinion, states the holding of the Supreme Court in
that case. SOB, Inc. v. County of Benton, 317 F.3d 856, 861, 862 n.1 (8th Cir. 2003).
The Eighth Circuit has not, however, indicated that Alameda Books created a higher
evidentiary standard, and this Court has also concluded that a higher standard was not
adopted in that case. See Peterson v. City of Cosmos, Minn., Civil No. 03-6570
(DWF/SRN), 2005 WL 1267620 at *7 n.4 (May 27, 2005).
7
a 1988 Adams County, Colorado study entitled Adams County Nude Entertainment
Study along with a 1991 update to this study.
Plaintiff challenges these studies on a number of grounds. First, Plaintiff contends
that these studies are shoddy data due to their age. The Court recognizes that some of
the studies on which the City relied, which have been used in support of ordinances
upheld by courts for a number of years, are somewhat old. While municipalities are not
required to conduct new studies or produce evidence independent of that generated by
other cities, City of Renton, 475 U.S. at 53, there may come a time when these particular
studies are so old and outdated that a municipalitys reliance on the studies analysis in
determining relevant secondary effects will no longer be reasonable. This is particularly
true given that the Internet now provides for much wider availability of adult materials.
These studies, and their analysis of secondary effects from the sale, distribution, or
viewing of adult materials or performances, largely predate this development. At the
same time, however, the Court concludes that the studies are not presently so old as to
make the Citys reliance on them unreasonable.
Second, Plaintiff attempts to cast doubt on the Citys reasoning by the submission
of an article, co-authored by its expert Dr. Daniel Linz, challenging the existence of
secondary effects of adult businesses as a myth and advocating a scientific approach to
studying secondary effects. Bryant Paul, Daniel Linz & Bradley J. Schafer, Government
Regulation of Adult Businesses Through Zoning and Anti-Nudity Ordinances:
Debunking the Legal Myth of Negative Secondary Effects, 6 Comm. L. & Poly 355
(2001) (the Linz article). The Linz article is critical of numerous studies of negative
8
secondary effects of adult businesses and the reliance upon these studies by municipal
authorities. The Linz article contends that studies finding a link between adult
establishments and negative secondary effects are not scientifically sound and that more
scientifically rigorous studies conclude that no negative secondary effects arise from
adult businesses.
The Linz articles critique of the studies on which the City relied is not
determinative in this case. While municipalities may not rely on shoddy data, they are
not required to base their analysis only on studies conducted according to scientific
methods, as the Linz article argues. To the contrary, it is clearly established that
municipalities need not analyze evidence according to empirical, scientific standards.
City of Erie v. Paps A.M., 529 U.S. 277, 300 (2000); see also Thames Enters., Inc. v.
City of St. Louis, 851 F.2d 199 (8th Cir. 1988) (rejecting argument that an empirical basis
was necessary for finding deleterious effect of adult bookstore located within 500 feet of
residential district). Requiring adherence to scientific standards of analysis would be
inconsistent with the deference that municipal authorities are given to analyze and
address community issues when acting in their legislative function. In fact, adopting
such an analytical standard would require municipalities to ignore the valid, but not
necessarily scientific, concerns expressed by average citizens in their communities.
Further, other courts have concluded that the analysis advocated by the Linz article is
insufficient to meet the burden to cast doubt on a municipalitys reasoning, even when
supplemented by additional evidence, and the Court finds the reasoning employed in
those cases persuasive. See Doctor Johns v. Wahlen, 542 F.3d 787 (10th Cir. 2008)
9
(concluding that the Linz article failed to meet burden to cast doubt because municipality
relied on studies not considered by article and because empirical evidence is not required
in enactment of ordinances).
In addition, the Linz articles approach largely ignores the fact-finding function in
which municipalities engage when enacting ordinances. The Linz article acknowledges
that existing studies conflict as to whether negative secondary effects arise from adult
businesses. Conflicting evidence does not require a municipality to find that negative
secondary effects are unlikely to occur. Where a municipality is presented with
conflicting evidence, municipal authorities may engage in fact-finding and ultimately
may determine that a study finding such a link is more relevant or credible than a study
that does not. A municipality may also decide to disregard some studies. The relevant
question for courts reviewing these ordinances becomes whether the municipalities
reasonably believed that secondary effects were likely to occur.
Third, Plaintiff further attempts to cast doubt on the Citys rationale for the
ordinance by submitting a study Dr. Linz conducted that analyzed the Citys calls for
police service (CFS). The study is titled: A Study of Adverse Secondary Effects of
an [sic] Take-Home Merchandise Adult Bookstore in Moorhead Minnesota (the CFS
study). (Decl. of Daniel Linz, Ph.D. (Linz Decl.) 3, Ex. 1.) The CFS study opines
that the Huff & Puff does not generate significant calls for service, and is not a source for
negative secondary effects, specifically crime, traffic problems or disorder. This study is
insufficient to cast doubt upon the Citys evidence and reasoning, however, because it
addresses only one aspect of the negative secondary effects reported crime. The study
10
does not address unreported crime or neighborhood disruption, nor does it address blight
or the impact on property values of an adult establishment.3 Further, while localized
evidence can be considered in evaluating an ordinance, localized evidence of negative
secondary effects is neither required nor determinative. Holmberg v. City of Ramsey, 12
F.3d 140 (8th Cir. 1993) (rejecting argument that municipality is required to demonstrate
substantial interest with localized studies and evidence that secondary effects actually
exist).
Finally, Plaintiff attempts to cast doubt on the ordinance by arguing that the
studies on which the City relied fail to distinguish between adult establishments that offer
on-site entertainment or performances, such as nude dancing or peep-shows, and
businesses such as Huff & Puff which sell magazines, videos, and sexual paraphernalia
for consumption off-site. This argument is somewhat persuasive. The Court could well
imagine that the secondary effects generated by each type of business could be different
enough to warrant different regulations. Ultimately, however, this argument also fails.
While some courts have suggested that the on-site/off-site distinction may be
significant in determining whether an adult establishment has cast doubt on a
3 Dr. Linzs definition of negative secondary effects is unclear, but it appears to be
fairly narrow. Dr. Linz states that, in his opinion, an analysis of calls for service is the
only reliable information upon which the City reasonably could have relied in
determining the likelihood of negative secondary effects arising from adult
establishments. (Linz Decl. 3, Ex. 1 at 12.) The Linz article also questions the
relevance of home values to determining negative secondary effects. (Paul, supra at
384.) The Court is unpersuaded that the law requires such a narrow focus. The concept
of negative secondary effects is not limited to crime statistics, and decreasing home
values and neighborhood blight are relevant concerns for municipalities considering adult
use ordinances. ILQ, 25 F.3d at 1416.
11
municipalitys reasoning, see, e.g., Doctor Johns, 542 F.3d at 793, the Eighth Circuit
has not accepted this distinction and it is unclear whether it would do so. In ILQ, an adult
bookstore challenged an ordinance similar to the one at issue in this case. 25 F.3d at
1417. There, the adult bookstore advanced the same argument presented by the Plaintiff
here, contending that the city was required to disregard studies that did not distinguish
between bookstores offering both adult and non-adult fare and having no facilities for
on-site consumption. Id. at 1418. The Eighth Circuit specifically rejected the argument,
stating that it was simply not the law, and upheld the application of the ordinance. Id.
This Court does not consider ILQ to have been overruled by Alameda Books, and until
the Eighth Circuit revisits this issue, this Court is constrained by ILQs holding.
Further, while businesses offering on-site entertainment or performances may
generate different secondary effects from those offering only materials for off-site
consumption, the latter type of establishment may still generate some negative secondary
effects that a municipality could reasonably desire to suppress. Id. at 1418 (noting study
of secondary effects relating to neighborhood in which adult establishments, including
adult bookstore, were located included discarded pornographic literature in streets,
sidewalks, bushes and alleys near adult businesses). Under City of Renton and Alameda
Books, municipalities are given some discretion to determine what negative secondary
effects they might face and the best method to deal with those effects, within
constitutional parameters.
In this case, the City was presented with a number of studies from which the City
reasonably could have concluded that negative secondary effects arise from adult
12
oriented property uses. The City also was presented with information regarding the
analysis of adult use ordinances by federal courts, particularly the U.S. Court of Appeals
for the Eighth Circuit. In addition, citizens appeared at the public hearing in support of
the ordinance and testified as to their concerns. One citizen indicated that his home is
only 75-feet from an adult establishment and that he was concerned for his familys
safety. Another citizen stated that he was concerned about increased criminal activity
and decreased property values due to adult establishments.4 The Court concludes that the
Citys evidence in support of the ordinance was sufficient. The Court also concludes that
the Citys evidence fairly supports the ordinance and that the City has shown that the
purpose and effect of the ordinance is the suppression of secondary effects.5
4 Plaintiff did not appear at the public hearing to testify.
5 Plaintiff argues that the Citys process for enacting the ordinance was a sham and
suggests that the real purpose for the ordinance is to drive adult establishments out of
business. In this case, the ordinance was considered by the Citys planning commission
and twice by the Citys council. The City engaged a consultant, was provided with
studies and maps showing the opportunity areas for adult establishments depending on
the buffer zone adopted, and held a public hearing at which members of the public
testified. The record reflects that the Citys council members engaged in some debate
about the terms of the ordinance, including the length of the distance requirements,
whether to restrict adult establishments to only the heavy industrial area of the City, and
the restriction on the hours of operation and requirement that adult establishments close
on Sundays and holidays. With respect to the provision regulating Sunday and holiday
closure, the council debated an amendment on which council members were nearly
evenly split and which failed by only one vote. Ultimately, the ordinance did not pass
unanimously. On this record, the Court cannot conclude that the Citys deliberations
were a sham. Further, courts generally do no look behind legislative findings and policy
statements to discern legislative bodies hidden, rather than stated, purposes.
Ambassador Books & Video, Inc. v. City of Little Rock, Ark., 20 F.3d 858, 863 (8th Cir.
1994).
13
B. Availability of Alternative Sites
Plaintiff also challenges the ordinance on the ground that it does not provide
sufficient alternative locations for him to relocate Huff & Puff and comply with the
ordinance. A time, place, and manner regulation must not unreasonably limit alternative
avenues of communication. City of Renton, 475 U.S. at 47. Further, ordinances must
leave the quantity and accessibility of speech substantially intact. Alameda Books, 535
U.S. at 438 (Kennedy, J. concurring).
It is not necessary for a municipality to ensure that an adult business has access
to commercially viable alternative sites. City of Renton, 475 U.S. at 53-54. Adult
establishments must fend for themselves in the real estate market, on an equal footing
with other prospective purchasers and lessees. Id. at 54. Therefore, an ordinance may
be upheld even if an adult business is unable to secure another location. Alexander v.
City of Minneapolis, 928 F.2d 278, 284 (8th Cir. 1991). Further, courts do not measure
the reasonableness of an adult use ordinance based upon the economic impact relocation
will cause. Id. at 283; Ambassador Books, 20 F.3d at 864-865 (stating that the cost
factor is unimportant in determining whether [an] ordinance satisfies the standards of the
First Amendment).
In City of Renton, the Supreme Court concluded that the ordinance left sufficient
space open for relocation where 520 acres, or more than 5% of Rentons land area, was
open for use as an adult theater site. 475 U.S. at 53. The land included ample,
accessible real estate, acreage in all stages of development, and was criss-crossed by
14
freeways, highways, and roads. Id. The Eighth Circuit also has upheld ordinances
leaving similar land areas available for relocation. See, e.g., Alexander, 928 F.2d at 283
(upholding ordinance where 6.6% of the citys total commercial acreage, including a
myriad of block faces, was potentially available even though the adult establishment
was unable actually to secure another location); Ambassador Books, 20 F.3d at 864
(concluding ordinance leaving 6.75% of the land available with 97 available relocation
sites). An ordinance may not pass muster, however, where the land designated as
available for adult uses is not truly accessible or part of an actual market for commercial
enterprises. See Northshor Experience, Inc. v. City of Duluth, Minn., 442 F. Supp. 2d 713
(D. Minn. 2006) (concluding that Duluths ordinance did not leave a reasonable
alternative avenue for communication; though the ordinance left 4.34% of the city
available for adult uses, the plaintiff demonstrated via photographic evidence that the
available land was occupied by the airport or was heavily industrial, either lacking
infrastructure and inaccessible or occupied by an existing heavy industrial use, such as a
manufacturing plant or mineral piles).
In this case, the record is insufficient for the Court to make an ultimate
determination as to whether the ordinance leaves a sufficient opportunity area for adult
businesses to relocate. According to the City, 642 acres, or 6.25% of the Citys total land
area, is available for adult businesses. Further, the ordinance leaves 29% of the Citys
commercial and industrial areas available for adult establishments. The City estimates
that there are four to six sites available that meet the ordinances buffer restrictions. The
parties dispute whether these sites are platted and accessible by road, and the record
15
before the Court does not definitively establish the accessibility of the sites. Further, the
character of the sites has not been established. The Court is, therefore, unable to
determine whether any of these sites can reasonably be considered part of an actual
market for commercial enterprises. Finally, the Court lacks any information regarding
the number of adult businesses that must relocate and whether the four to six available
sites are sufficient to leave the quantity and accessibility of speech substantially intact.
Alameda Books, 535 U.S. at 438 (Kennedy, J. concurring). The Court must, therefore,
deny the Citys motion for summary judgment as to the issue of whether the ordinance
leaves sufficient space available for adult businesses.6
C. Amortization Provision
Plaintiff also challenges the ordinances amortization provision. A provision in an
ordinance allowing a grace-period before relocation is required is known as an
amortization provision because it justifies the removal of a nonconforming use by giving
the owner a period of time to recoup (amortize) its investment before it must relocate.
Jakes, Ltd., Inc. v. City of Coates, 284 F.3d 884, 886-887 (8th Cir. 2002). The Eighth
Circuit has upheld amortization provisions of varying lengths. See id. at 889 (upholding
two-year amortization provision); Ambassador Books, 20 F.3d at 865 (three-year
amortization period upheld).
6 The Court anticipates that this issue could be addressed through a supplemental
submission, particularly if supported by photographic evidence.
16
In this case, the amortization provision allows non-conforming adult uses one year
to relocate. Adult establishments may also apply for an additional one-year extension.7
It is clear that a municipality may require a non-conforming adult business to relocate,
and the Court concludes that the time periods in the ordinance are not an unreasonable
period of time for adult establishments to accomplish this. The Court, therefore,
concludes that the ordinances amortization provision is valid.
D. Restriction on Hours of Operation
Finally, Plaintiff challenges the ordinances restriction limiting the hours of
operation for adult establishments and providing that adult establishments may not be
open for business on Sundays or national holidays. There is no information in the record
establishing the reason that the City enacted this portion of the ordinance or the
relationship between negative secondary effects and the hours of operation chosen by the
City. Members of the Citys council did not discuss or debate the ordinances restriction
on the hours of operation for adult establishments. There was some debate regarding
requiring Sunday and holiday closure. An amendment that would have stricken this part
of the ordinance narrowly failed. The record does not contain any information regarding
the basis for this amendment or the substance of the debate regarding its terms.
The record is inadequate to permit the Court to determine whether the City
reasonably believed that the restrictions regarding adult establishments hours of
operation are content-neutral and related to a substantial governmental interest. See
Northshor Experience, 442 F. Supp. 2d at 722-723 (noting that evidentiary basis for
7 The Plaintiff did not apply for an extension.
17
ordinance included no connection between hours of operation and negative secondary
effects). The Court, therefore, denies summary judgment as to this issue.
III. Facial Invalidity
Plaintiff challenges the Citys ordinance as facially invalid. Declaring that the
First Amendment needs breathing space, Broadrick v. Oklahoma, 413 U.S. 601, 611
(1973), the Supreme Court has identified two ways in which an ordinance may be facially
invalid: either because it is unconstitutional in every conceivable application, or
because it seeks to prohibit such a broad range of protected conduct that it is
unconstitutionally overbroad. Members of the City Council of the City of Los Angeles
v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). The first category includes statutes
that could never be applied in a valid manner. Id. at 797-98. The overbreadth doctrine
addresses statutes that, while they may be constitutional as applied to the challenging
party, are written so broadly that they may inhibit the constitutionally protected speech
of third parties. Id. at 798. The Supreme Court has noted that application of the
overbreadth doctrine is, manifestly, strong medicine, and that the overbreadth of a
statute must not only be real, but substantial as well, judged in relation to the statutes
plainly legitimate sweep. Broadrick, 413 U.S. at 613, 615.
Plaintiff challenges the application of the ordinance to Huff & Puff as a purveyor
of sexual items to be used or consumed off-site and asserts that the ordinance will apply
to third parties, such as nude ballet, bawdy comedy, nude artwork and the like. (Pl.s
Mem. of Law in Oppn to Def.s Mot. for Summ. J. at 48.) The Court has determined
that the Citys ordinance is content-neutral and relates to the constitutionally permissible
18
suppression of negative secondary effects arising from adult businesses. As noted above,
while this Court might be persuaded that some distinction can be made between adult
establishments that offer on-site entertainment versus those that offer items only for
off-site use, the City could reasonably believe that off-site businesses pose some risk of
negative secondary effects. Eighth Circuit precedent also supports that view. Therefore,
the ordinance can be applied constitutionally to the Plaintiff notwithstanding that the
Plaintiff does not provide on-site adult entertainment.
As to the second part of Plaintiffs facial challenge, the Court concludes that the
ordinance is not unconstitutionally overbroad. The ordinance is limited to regulation of
businesses that have a substantial component related to the depiction of or an emphasis
on specified sexual activities or specified anatomical areas. (Def.s Mem. at Ex. 2.)
The term Specified anatomical areas is defined as follows: Less than completely and
opaquely covered human genitals, pubic region, buttock, anus, or female breast(s) below
a point immediately above the top of the areola; and . . . [h]uman male genitals in a
discernibly turgid state, even if completely and opaquely covered. (Id.) Specified
sexual activities include the following:
A. Actual or simulated sexual intercourse, oral copulation, anal
intercourse, oral-anal copulation, bestiality, direct physical stimulation of
unclothed genitals, flagellation or torture in the context of a sexual
relationship, or the use of excretory functions in the context of a sexual
relationship, and any of the following sexually oriented acts of conduct:
anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio,
necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or
B. Clearly depicted human genitals in the state of sexual stimulation,
arousal or tumescence; or
19
C. Use of human or animal ejaculation, sodomy, oral copulation, coitus,
or masturbation; or
D. Fondling or touching of nude human genitals, pubic region,
buttocks, or female breast(s); or
E. Situations involving a person or persons, any of whom are nude, clad
in undergarments or in sexually revealing costumes, and who are engaged
in activities involving the flagellation, torture, fettering, binding or other
physical restraint of such persons; or
F. Erotic or lewd touching, fondling, or other sexually oriented contact
with an animal by a human being; or
G. Human excretion, urination, menstruation, vaginal or anal irrigation.
(Id.) The speech and conduct identified as subject to regulation is, therefore, a fairly
narrow segment of speech and conduct. Further, the ordinance only regulates businesses
that devote twenty percent of their floor space to adult uses or obtain more than twenty
percent of their gross receipts from such uses.
The Court concludes that this ordinance is sufficiently narrowly tailored so that its
sweep will not capture third parties engaging in lawful activities protected by the First
Amendment. Under the ordinance, a bookstore, movie rental establishment, or movie
arcade could engage in the selling of adult items or entertainment for on-site or off-site
consumption, so long as the floor space devoted to, or gross receipts derived from, such
activities is less than twenty percent of the total for that establishment. This would
permit bookstores and movie rental establishments to maintain an adult section for
customers desiring such goods. Similarly, a movie theater could show films with images
falling into the definitions of specified sexual activities and specified anatomical areas
20
under the same circumstances. Alternatively, a business devoted exclusively to adult
entertainment may exist within the buffer zones created by the ordinance. Therefore, the
Court concludes that the ordinance is not facially invalid. The Court grants the City
summary judgment as to Plaintiffs facial invalidity challenge.
CONCLUSION
The Court concludes that the City has not shown that there are sufficient available
sites for the relocation of existing adult businesses. The City also has failed to support
the ordinances restriction upon the hours of operation of adult businesses. Therefore, the
Citys motion for summary judgment is denied as to those issues. As noted above, the
Court considers it possible that one or both of these issues could be resolved through the
submission of additional briefing and evidence and the Court is willing to consider a
request for such briefing. Alternatively, because so few issues now remain to be
resolved, the Court encourages the parties to engage in settlement negotiations to
determine whether a settlement may be reached. The Court grants the Citys motion with
respect to Plaintiffs challenge to the evidence on which it relied in enacting the
ordinance and the ordinances amortization provision. The Court also grants the Citys
summary judgment motion as to Plaintiffs facial invalidity challenge.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant City of Moorheads Motion for Summary Judgment (Doc. No.
26) is GRANTED IN PART and DENIED IN PART as follows:
21
a. The Motion for Summary Judgment is GRANTED as to
Plaintiffs challenges based on the evidence on which the City of Moorhead
relied, the amortization provision, and facial invalidity;
b. The Motion to Dismiss is DENIED WITHOUT
PREJUDICE as to the availability of alternative locations and the
ordinances restriction upon adult businesses hours of operation.
Dated: February 9, 2009 s/Donovan W. Frank
DONOVAN W. FRANK
Judge of United States District Court
 

 
 
 

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