Peterson et al v. Florence, Minnesota, The City of
Filing
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MEMORANDUM OPINION AND ORDER. 1. Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Doc. No. 4 ) is DENIED as follows: a. To the extent Plaintiffs seek an order restraining and enjoining Defendant City of Florence fr om enforcing the provisions of Ordinance No. 2008-03, the motion is DENIED AS MOOT. b. To the extent Plaintiffs seek an order restraining and enjoining Defendant City of Florence from enforcing the provisions of Ordinance No. 2008-02, the motion is DENIED.(Written Opinion). Signed by Judge Donovan W. Frank on 10/4/2011. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Dale Owen Peterson, and
The Juice Bar, LLC,
Civil No. 11-2233 (DWF/JJK)
Plaintiffs,
v.
MEMORANDUM
OPINION AND ORDER
The City of Florence, Minnesota,
Defendant.
________________________________________________________________________
Bryan R. Battina, Esq., Battina Law, PLLC; and James F. Lester, Esq., James F. Lester,
Attorney at Law, counsel for Plaintiffs.
James J. Thomson, Esq., and Mary D. Tietjen, Esq., Kennedy & Graven, Chartered,
counsel for Defendant.
________________________________________________________________________
INTRODUCTION
This matter is before the Court on Plaintiffs’ Motion for Temporary Restraining
Order and Preliminary Injunction (Doc. No. 4). For the reasons set forth below, the
Court denies Plaintiffs’ motion.
BACKGROUND
Plaintiff Dale Owen Peterson (“Peterson”) is the president and manager of the
Juice Bar, LLC (the “Juice Bar”). The Juice Bar is an adult entertainment establishment
that features live, nude and semi-nude entertainment. The establishment does not hold a
liquor license. Defendant City of Florence, Minnesota (“Florence” or the “City”) is a
municipal corporation organized under the laws of the State of Minnesota. The entire
area of Florence is approximately 0.2 square miles. (Doc. No. 15, Hachmann Aff. ¶ 2.)
The town is comprised of 16 single-family residences, a small park, and a small parcel of
land owned by the City. (Id. at ¶¶ 3–4.) There are thirty-six residents of Florence, five
of whom are school-aged children. (Id. at ¶¶ 2, 6.)
On July 21, 2008, the Florence City Council adopted Ordinance No. 2008-03,
entitled “An Ordinance of the City of Florence, Minnesota Adopting Anti-Blight
Regulations.” (Compl., Ex. A.) The ordinance governed the operation of adult-oriented
businesses and defined, among other things, “sexually oriented business” and “adult
cabaret.” (Id. at 3–4.) The ordinance required that sexually-oriented businesses be
operated only in a location zoned “C-2” and further banned the operation of a
sexually-oriented business within 250 feet of another sexually-oriented business, or a
residence, liquor-licensed establishment, “day care facility, school, library, park,
playground, state or federal wildlife area or preserve, religious institution or other public
recreational facility.” (Id. at 7.)
On August 11, 2008, the City enacted Ordinance No. 2008-02, entitled “An
Ordinance of the City of Florence, Minnesota Adopting a Zoning Ordinance to be
Incorporated as Chapter 10 of the Florence City Code.” (Compl., Ex. B.) The ordinance
defined the following district classifications: (1) “R-1” or “Single Family Residential
District”; (2) “B-1” or “Business District”; and (3) “C-2” or “Commercial District.” (Id.
at 6.) Ordinance No. 2008-02 further zoned “all areas within City limits” as “R-1
Single-Family Residential.” (Id. at 21.)
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The Juice Bar opened for business in Florence on December 17, 2010. At
approximately 10:30 p.m. on that date, law enforcement officers issued Peterson a
citation for violating Ordinance No. 2008-03 by operating a sexually-oriented business
within 250 feet of a residence and city park and by operating outside a C-2 zone. (See
Compl., Ex. C.) Under the threat of arrest, Peterson closed the Juice Bar for business the
same night. The Juice Bar has remained closed since December 17, 2010.
Plaintiffs filed this action on August 5, 2011, challenging the constitutionality of
Ordinance Nos. 2008-02 and 2008-03. (Doc. No. 1, Compl.) Plaintiffs claim that the
ordinances are facially unconstitutional and unconstitutional as applied to Plaintiffs under
the First and Fourteenth Amendments to the U.S. Constitution.1 (Compl. ¶ 67.) On
August 19, 2011, Plaintiffs filed the instant motion for injunctive relief. (Doc. No. 4.)
On September 12, 2011, the City adopted Ordinance No. 2011-09, which repealed
Ordinance No. 2008-03.2 (Doc. No. 16, Ex. 3.) Ordinance No. 2011-09 expresses that
“the City desires to maintain Florence solely as a residential community” and notes that
“the City has limited infrastructure, staff, and resources to accommodate commercial or
business establishments” and “does not wish to allow such uses within the City.” (Id.)
The Court now considers Plaintiffs’ motion for injunctive relief.
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Among other things, Plaintiffs claim that “the act of zoning the entire city ‘R-1
Single-Family Residential District’” constitutes “an invalid total ban on ‘adult
entertainment businesses’ that does not survive strict scrutiny.” (Compl. ¶ 62.)
2
According to the City, the City is in the process of repealing the commercial and
business zoning regulations contained within Ordinance No. 2008-02. A public hearing
on the repealing of those provisions is scheduled for October 10, 2011.
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DISCUSSION
I.
Legal Standard
Under Eighth Circuit precedent, a preliminary injunction may be granted only if
the moving party can demonstrate: (1) a likelihood of success on the merits; (2) that the
movant will suffer irreparable harm absent the restraining order; (3) that the balance of
harms favors the movant; and (4) that the public interest favors the movant. See
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). In each case,
the factors must be balanced to determine whether they tilt toward or away from granting
injunctive relief. See West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th
Cir. 1986). The party requesting the injunctive relief bears the “complete burden” of
proving all of the factors listed above. Gelco Corp. v. Coniston Partners, 811 F.2d 414,
418 (8th Cir. 1987).
II.
Anti-Blight Regulations
In light of the City’s repeal of its Anti-Blight regulations (Ordinance No.
2008-03), the Court need not reach Plaintiffs’ motion to the extent it seeks to prevent the
City from enforcing Ordinance No. 2008-03. Plaintiffs’ motion is moot in this respect.
The Court considers Plaintiffs’ motion to the limited extent it seeks injunctive relief with
respect to the zoning ordinance (Ordinance No. 2008-02) as discussed below.
III.
Zoning Ordinance
A.
Likelihood of Success on the Merits
The first Dataphase factor requires that the movant establish a substantial
probability of success on the merits of its claim. See Dataphase, 640 F.2d at 114.
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“Because of the inherent public interest in free speech and the threat of irreparable injury
if speech is suppressed, courts rarely focus on the three latter Dataphase factors; instead
they look primarily to whether the party seeking the preliminary injunction is likely to
succeed on the merits.” Jihad v. Fabian, 680 F. Supp. 2d 1021, 1031 (D. Minn. 2010)
(quoting Wickersham v. City of Columbia, Missouri, 371 F. Supp. 2d 1061, 1075 (W.D.
Mo. 2005)). In a First Amendment case, “the likelihood of success on the merits is often
the determining factor in whether a preliminary injunction should issue.” Phelps-Roper
v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). The Court finds that Plaintiffs have not met
their burden of demonstrating that they are likely to succeed on the merits of their claim.
Plaintiffs contend that there are no circumstances under which a city, regardless of
its size, may be constitutionally permitted to adopt an ordinance that zones the city as
entirely residential so as to provide no venue for adult entertainment within the
municipality. In effect, Plaintiffs appear to argue that every municipality, no matter how
small, is required to permit sexually-oriented businesses to open within city limits, even
if the city has expressed a lack of need for, and a lack of resources to accommodate,
commercial enterprise of any kind and has pointed to potential alternative locations for
such businesses in the surrounding county.
Sexually-oriented businesses may be subject to content-neutral time, place and
manner restrictions that are designed to advance a substantial government interest and
that leave open alternative channels of communication. Bukaka, Inc. v. County of
Benton, 852 F. Supp. 807, 812 (D. Minn. 1993) (citing City of Renton v. Playtime
Theatres, 475 U.S. 41, 47 (1986)). “Laws of general application that impact protected
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expression in some contexts, but not others, are subject to the same scrutiny.” Bukaka,
852 F. Supp. at 812 (citing Barnes v. Glen Theatres, Inc., 501 U.S. 560 (1991) and
United States v. O’Brien, 391 U.S. 367 (1968)). “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); see, e.g., Barnes, 501 U.S. at 572 (quoting United States v. O’Brien, 391
U.S. 367, 376–77 (1968)) (“[A] government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is not greater than is essential to the furtherance of that interest.”).
A municipality’s assertion of a content-neutral justification is sufficient to render a
challenged ordinance subject to time, place, and manner analysis. Cornerstone Bible
Church v. City of Hastings, 948 F.2d 464, 468 (8th Cir. 1991). “A valid time, place, and
manner restriction must (1) be narrowly tailored to serve a significant governmental
interest, and (2) leave open ample alternative channels for communication of the
information.” Id. (citing Ward, 491 U.S. at 791). In general, zoning is a legitimate
municipal tool employed to achieve permissible municipal objectives. See Cornerstone,
948 F.2d at 468; Renton, 475 U.S. at 50. Still, “when a zoning law infringes upon a
protected liberty, it must be narrowly drawn and must further a sufficiently substantial
government interest.” Schad v. Borough of Mouth Ephraim, 452 U.S. 61, 68 (1981).
Although a municipality is not required to show that its ordinance is the least-restrictive
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means of accomplishing its objective, a city “may not regulate expression in such a
manner that a substantial portion of the burden on speech does not serve to advance its
goals.” Cornerstone, 948 F.2d at 468 (quoting Ward, 491 U.S at 799).
On the record before it, the Court finds it difficult to envision circumstances under
which Plaintiffs are likely to prevail given the unique facts of this case. The Court
seriously questions whether Plaintiffs will succeed on the merits of their claim that the
zoning ordinance is unconstitutional in light of the small size of the municipality, the
ordinance’s content-neutral and complete ban on commercial enterprise of every kind
(and its incidental effect of prohibiting sexually-oriented businesses), the City’s interest
in remaining entirely residential, and the availability of alternative locations for
sexually-oriented businesses in surrounding areas of Lyon County pursuant to
county-wide zoning. See, e.g., Barnes, 501 U.S. at 571–72; O’Brien, 391 U.S. at 376–
77; Renton, 475 U.S. at 49–50. Contra Phillips v. Borough of Keyport, 107 F.3d 164,
176 n.4 (3d Cir. 1997) (citing Schad, 452 U.S. at 76–77) (“Here, the Borough does not
rely on the availability of ‘adult entertainment’ sites in neighboring areas outside its
limits; nor has it offered any evidence of such sites.”); Centerfold Club, Inc. v. City of
St. Petersburg, 969 F. Supp. 1288, 1306 (M.D. Fla. 1997) (“Absent a county-wide zoning
scheme, the City cannot avail itself of the sites in the unincorporated area of Pinellas
County.”).
Contrary to Plaintiffs’ assertions, the Court concludes that the United States
Supreme Court has contemplated the possibility that adult entertainment businesses may
be excluded from primarily residential communities where said businesses may locate in
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selected areas of the county as permitted by county-wide zoning. Schad, 452 U.S. at 76.
In Schad, the Supreme Court expressly left open the question, stating that it “may very
well be true” that allowing “live entertainment” in reasonably nearby areas outside the
limits of a primarily residential community, while prohibiting the same activity in the
municipality itself, would be “quite legal” where county-wide zoning exists. Id. (“[The
Borough’s] position suggests the argument that if there were countywide zoning, it would
be quite legal to allow live entertainment in only selected areas of the county and to
exclude it from primarily residential communities, such as the Borough of Mount
Ephraim. This may very well be true, but the Borough cannot avail itself of that argument
in this case.”). Here, Defendant has submitted evidence of available alternative locations
for sexually-oriented businesses in surrounding areas of Lyon County pursuant to county
zoning. (See Doc. No. 16, Ex. 2 (identifying “464 acres of land in the County’s Highway
Commercial zoning district in which adult uses may locate”); Exs. 4 & 5.) The facts of
this case, taken together, cast significant doubt on Plaintiffs’ ability to succeed on the
merits.
After reviewing the record and the relevant authority, the Court concludes that
Plaintiffs have not demonstrated a substantial likelihood of success on the merits of their
claim. Accordingly, this factor strongly supports denying Plaintiffs’ request for
injunctive relief.
B.
Irreparable Harm, Balance of Harms and Public Interest
Plaintiffs must also establish that irreparable harm will result if injunctive relief is
not granted. See Packard Elevator v. I.C.C., 782 F.2d 112, 115 (8th Cir. 1986). “The
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loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). For this
reason, the irreparable harm factor generally weighs in the movant’s favor in First
Amendment cases, although it is often intertwined with a court’s evaluation of the
likelihood of success on the merits. See Phelps-Roper, 545 F.3d at 690 (concluding that
if the movant “can establish a sufficient likelihood of success on the merits of her First
Amendment claim, she will also have established irreparable harm as the result of the
deprivation”).
Likewise, the determination of where the public interest lies is also dependent on
the likelihood of success on the merits of the First Amendment challenge “because it is
always in the public interest to protect constitutional rights.” Id. In addition, the balance
of equities typically favors the constitutionally-protected freedom of expression. Id.
Even assuming, without deciding, that the irreparable harm, balance of harms, and
public interest Dataphase factors each independently weigh in Plaintiffs’ favor, the Court
finds Plaintiffs’ inability to demonstrate a substantial likelihood of success on the merits
to be determinative in this case. Plaintiffs’ failure to show that they are likely to prevail
on their constitutional claim justifies denying the motion for injunctive relief.
CONCLUSION
Because Plaintiffs have failed to meet their burden to show that injunctive relief is
warranted, the Court denies Plaintiffs’ motion with respect to Ordinance No. 2008-02.
Plaintiffs’ motion is moot with respect to Ordinance No. 2008-03. Consequently, the
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Court denies Plaintiffs’ Motion for Preliminary Injunction and Temporary Restraining
Order in its entirety.
ORDER
Based upon the files, records, and proceedings herein, and for the reasons set forth
above, IT IS HEREBY ORDERED that:
1.
Plaintiffs’ Motion for Temporary Restraining Order and Preliminary
Injunction (Doc. No. [4]) is DENIED as follows:
a.
To the extent Plaintiffs seek an order restraining and enjoining
Defendant City of Florence from enforcing the provisions of Ordinance
No. 2008-03, the motion is DENIED AS MOOT.
b.
To the extent Plaintiffs seek an order restraining and enjoining
Defendant City of Florence from enforcing the provisions of Ordinance
No. 2008-02, the motion is DENIED.
Dated: October 4, 2011
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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