Eliason et al v. City of Rapid City
Filing
24
ORDER granting 14 Motion for Preliminary Injunction. Signed by Chief Judge Jeffrey L. Viken on 1/29/18. (SB)
U N I T ED S TA T E S D IS T R I C T C O U R T
D IS T R I C T O F S O U T H DA K O TA
W ES T E R N D I V IS I O N
DA V ID EL IAS O N, an individual; and
1141 LL C, a South Dakota Limited
Liability Company,
Plaintiffs,
C I V. 17-5082- JL V
O RD E R
vs.
C I TY O F RA P ID C I TY, a South Dakota
Municipality
,
Defendant.
Plaintiffs David Eliason and 1141 LL C filed this action against defendant
City of Rapid City The verified complaint alleges constitutional violations and
.
seeks various forms of relief. (Docket 1). Plaintiffs filed a motion for a
preliminary injunction based on three arguments claiming violations of the
First Amendment. (Docket 14). Plaintiffs seek to open and operate a retail
store the City would regulate as a"sexually oriented business" based on the
store's inventory. Id. at p. 4. Defendant denied plaintiffs the necessary permit
for operation. Id. at p. 6. Because some factual issues were embedded in the
preliminary injunction motion, the court entered a briefing schedule that
provided a discrete time period for discovery. (Docket 18). The court held a
hearing on plaintiffs' motion. (Docket 22). Based on the analysis set forth
below, the court grants plaintiffs' motion.
BACKGROUND
In April of 2017, David Eliason met with Vicki Fisher of the Rapid City
Community Planning and Development Services Department about opening his
business. (Docket 1 at pp. 11-12). They specifically discussed where Mr.
Eliason could run a store that the city would regulate as a"sexually oriented
business." Id. at p. 12. Plaintiffs intend to name the business they seek to
open"Dick
&
Jane's Naughty Spot" or"Dick
&
Jane's Super Spot." Id. at p. 10.
The business would sell videos and magazines with sexual content.1 Id. at
"
p. 11. Under Rapid City Municipal Code ( R C M C" or" City Code" or
"ordinance"), sexually oriented businesses include adult-only bookstores, adult
novelty shops and adult video stores. R C M C§ 17.50.186( C). The ordinance
states the purpose of regulating these businesses is "to promote the health,
safety and general wel fare of the citizens of the city and to establish
,
reasonable and uni form regulations to prevent the concentration of sexually
oriented businesses within the city § 17.50.186(A).
."
Mr. Eliason, along with his attorney, met with Ms. Fisher and other
Rapid City employees in May 2017. (Docket 1 at p. 12). The City employees
indicated Mr. Eliason could likely operate his sexually oriented business on
Deadwood Avenue. Id. During the meeting, the Deadwood Avenue Business
1 It would sell a variety of other pieces of retail : "tiaras, sashes, party
items, gift bags, honeymoon items and more; lingerie items including corsets,
stockings, intimate wear, and undergarments for both men and women; post
mastectomy items; shoes for use with costumes, dress up, dancing and more,
including plat forms, stilettos, and more; lotions, oils, and lubricants for skin
care, massage, intimacy, and more; adult-themed novelties and sexual aids [.]"
Id. at pp. 10-11.
2
Park was suggested as a viable location not prohibited by the City Code,
specifically R C M C§ 17.50.186(D). (Docket 1 at p. 12). R C M C§ 17.50.186(D)
prohibits sexually oriented businesses from operating within 1,000 feet of
various facilities such as churches, parks and schools. One category of
facilities included in§ 17.50.186(D) is defined as follows:
A public or private educational facility including but not limited to
child
day
care
facilities, nursery
schools, preschools,
kindergartens, elementary schools, private schools, intermediate
schools, junior high schools, middle schools, high schools,
vocational schools, secondary schools, continuation schools,
special education schools, junior colleges, and universities; school
includes the school grounds, but does not include facilities used
primarily for another purpose and only incidentally as a school [.]
R C M C§ 17.50.186(D)(l)(b).
Following his meetings with City employees, Mr. Eliason obtained a
leasehold interest in a piece of real property at 1141 Deadwood Avenue in
Rapid City (Docket 1 at p. 12). The property is in one of the City's general
.
commercial zoning districts. Id. at p. 13. The City Code provides," [a]ny
sexually oriented business lawfully operating in a location permitted by this
section shall be classified as a conditional use, and authorized by§ 17.54.030."
R C M C§ 17.50.186( E).
Working with Renner Associates LL C, Mr. Eliason arranged the materials
necessary to apply to the Rapid City Planning Commission "the Planning
(
Commission") for a conditional use permit. (Docket 1 at p. 13). R C M C
§ 17.54.030 sets forth the procedures and criteria the Planning Commission
uses for deciding whether to issue a conditional use permit. The criteria the
Planning Commission must consider relate to building design, landscaping,
3
parking, signage, public utilities and other matters. R C M C§ 17.54.030( E)(l)(12). The Planning Commission must also determine whether the re quirements
in§ 17.50.186 are met.
In order to secure a conditional use permit, Mr. Eliason and Renner
Associates submitted an application for development review to the Planning
Commission in July 2017. (Dockets 1 at p. 13
& 1-5).
On August 24, 2017,
the Planning Commission approved the conditional use permit. (Dockets 1 at
pp. 13-14, 1-6
& 1-7).
Be fore voting to approve the permit, the Planning
Commission considered whether the proposed business would be in
compliance with§ 17.50.186(D). ( Exhibit 102 at p. 14).
Under§ 17.54.030( F), the Planning Commission's decision was appealed
to the Rapid City Common Council " Common Council" or" City Council") by
(
B H T,2 a martial arts studio in the area of the location of Mr. Eliason's planned
business. (Docket 1 at p. 14). Among other things, B H T has classes teaching
martial arts to people as young as age four. (Docket 1-8 at p. 4). B H T argued
in its appeal that Mr. Eliason's business should not receive a conditional use
permit because B H T, which is within 1,000 feet of Mr. Eliason's proposed
location, is an"educational facility" under§ 17.50.186(D). Id. at pp. 1-10;
(Docket 1 at p. 15). Mr. Eliason filed a response contending B H T should not be
viewed as an"educational facility." (Docket 1-9).
2Plaintiffs call the business that appealed"the Buckinghams," which is
short for" Black Hills Taekwondo LL C, Mike Buckingham, and Robin
Buckingham d/b/a Buckingham's A TA Black Belt Academy." (Docket 1 at
p. 14). Defendant refers to the business as" Karate for Kids." (Docket 19 at
p. 3). The court calls the business " B H T."
4
On September 18, 20 17, Carla Cushman, an Assistant City Attorney in
the Office of the City Attorney, wrote a legal memorandum to the Common
Council on whether B H T was an educational facility (Docket 1-10). The
.
memorandum concluded B H T was not an educational facility stating " Karate
,
for Kids is not an educational facility as contemplated by the sexually-oriented
business ordinance, and the 1000 foot buffer zone should not be applied to this
situation to deny the [conditional use permit.]" Id. at p. 4. The memorandum
provided several grounds for its conclusion : B H T is not regulated by any
government as a school; the limited extent to which B H T's purpose is
educational; other uses of the term"educational facility" in the City Code; the
non-permanent nature of commercial enterprises such as B H T; and the limited
fre quency and duration of a student's visits to B H T. Id. at pp. 3-4.
On the same date as the City Attorney's memorandum, September 18,
2017, and at a meeting with extensive public input, the Common Council voted
to deny Mr. Eliason's conditional use permit in a 6-4 decision. (Dockets 1 at p.
15
&
1-12 at p. 14); ( Exhibit 103).
After the Common Council's action, Mr. Eliason met with Fletcher Lacock
of the Planning and Development Services Department and Ms. Cushman on
September 22, 2017. (Docket 1 at p. 16). They discussed other potential
locations for Mr. Eliason's business, but no one at the meeting identified an
alternative location in compliance with the City Code. Id. Mr. Eliason and City
officials explored whether he could modify his proposed business so it would
not be regulated as a sexually oriented business. Id.; (Docket 1-13).
5
Then plaintiffs filed this lawsuit on October 18, 2017. (Docket 1).
ANALYSIS
"A district court's decision to issue a preliminary injunction 'depends
upon a flexible consideration of ( 1) the threat of irreparable harm to the moving
party (2) balancing this harm with any injury an injunction would inflict on
;
other interested parties; (3) the probability that the moving party would
succeed on the merits; and (4) the effect on the public interest.' "
Richland/ Wilkin Joint Powers Auth. v. United States Army Corps of Engineers,
826 F.3d 1030, 1036 (8th Cir. 2016) (internal quotation marks omitted)
( quoting Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 729
n.3 (8th Cir. 2008) (en bane)) (citing Dataphase Sy
stems, Inc. v. C L Sy
stems,
Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en bane)). These are the Dataphase
factors.
"A preliminary injunction is an extraordinary remedy, and the burden of
establishing the propriety of an injunction is on the movant." Watkins Inc. v.
Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (internal citation omitted). " No single
factor is dispositive, as the district court must balance all factors to determine
whether the injunction should issue." Lank ford v. Sherman, 451 F.3d 496,
503 (8th Cir. 2006). " In deciding whether to grant a preliminary injunction,
likelihood of success on the merits is most significant." Laclede Gas Co. v. St.
Charles Ctv., Mo., 7 13 F.3d 4 13, 419-20 (8th Cir. 2013) (internal quotation
marks omitted). The court begins with the third factor, success on the merits.
6
I.
Probability movant will succeed on the merits
Be fore evaluating this issue, the court must decide what standard should
apply to determine plaintiffs' probability of success on the merits. The first
option is the" fair chance" standard adopted in Dataphase, 640 F.2d at 113-14,
and second is the"likely to prevail on the merits" standard adopted in Planned
Parenthood, 530 F.3d at 732-33.
A party seeking to enjoin government action based on a presumptively
reasoned democratic process must make a threshold showing that it is "likely
to prevail on the merits." Id. at 733. The United States Court of Appeals for
the Eighth Circuit held this"more rigorous standard 're flects the idea that
governmental policies implemented through legislation or regulations developed
through presumptively reasoned democratic processes are entitled to a higher
degree of deference and should not be enjoined lightly.' " Id. at 732 ( quoting
Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (per curiam)). The
Planned Parenthood court explained district courts should employ"the familiar
' fair chance of prevailing' test where a preliminary injunction is sought to
enjoin something other than government action based on presumptively
reasoned democratic processes." Id. After noting that only a state statute was
be fore it in Planned Parenthood, the Eighth Circuit endorsed the Second
Circuit's analysis in determining "to what extent the challenged action
represents the full play of the democratic process[,]' " in cases where a
'
preliminary injunction is sought to enjoin city ordinances. Id. at n.6. ( quoting
Able, 44 F.3d at 131-32).
7
Based on defendant's representations about the City process of
's
adopting§ 17.50.186, the ordinance sufficiently represents"the full play of the
democratic process[.]" Id. Defendant explains a committee created by the
Rapid City Mayor worked with the City Attorney's Office to draft the ordinance.
(Docket 19 at p. 1). The committee reviewed comparable statutes and
presented§ 17.50.186 to the City Council, which had a reading on the
ordinance in June 2002 and passed it in July 2002. Id. When the buffer zone
was changed from 400 to 1,000 feet, the change was presented to the City
Council for a reading and passed in October 2003. Id. at p. 2. The
coordination between the Mayor's Office, City Attorney's Office and the City
Council sufficiently embodies"the full play of the democratic process [.] " See
Planned Parenthood, 530 F.3d at 732. Plaintiffs must show they are likely to
prevail on the merits.
Plaintiffs argue R C M C§ 17.50.186 is unconstitutional because it violates
the First Amendment in three distinct ways.3 (Docket 17 at p. 2). Plaintiffs
assert each challenge includes a facial and as-applied component. Id. First,
plaintiffs allege the City Code imposes an unconstitutional prior restraint on
their First Amendment rights because they cannot open their business without
a conditional use permit. Id. Second, plaintiffs take the position the definition
of"educational facility" at§ 17.50.186(D)(l)(b) is unconstitutionally vague.
3Initially, plaintiffs failed to comply with SD C L§ 21-24-8, which re quires
notice to the South Dakota Attorney General when launching a constitutional
challenge to an ordinance. (Docket 19 at pp. 6-7). Prior to the hearing on their
preliminary injunction motion, plaintiffs complied with SD C L§ 21-24-8.
(Docket 21). The Attorney General declined the opportunity to participate in
this litigation. (Docket 21-2).
8
(Docket 17 at p. 2). And third, plaintiffs claim the ordinance fails to provide
sufficient alternative avenues for their First Amendment expression. Id.
At the outset, the court finds plaintiffs correctly claim they seek to
engage in expression the First Amendment protects. The City does not dispute
this.
The First Amendment provides:" Congress shall make no law . . .
abridging the freedom of speech." U.S. Const. amend. I. " The amendment
applies to state and local governments through the Fourteenth Amendment."
Passions Video, Inc. v. Nixon, 458 F.3d 837, 840 (8th Cir. 2006) (citing Central
Hudson Gas
&
Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 56 1 (1980)).
"Sexual expression which is indecent but not obscene is protected by the First
Amendment [.]" Sable Comm'ns of Cali fornia, Inc. v. F. C. C., 492 U.S. 115, 126
( 1989); see also F W/ P B S, Inc. v. City of Dallas, 493 U.S. 2 15, 224 (1990)
(plurality opinion) (collecting cases involving bookstores and theaters).
"Although one may find sexually explicit material tasteless and even immoral, it
is constitutionally protected so long as it is not obscene." Passions, 458 F.3d
boy Entm't Group, Inc., 529 U.S. 803, 8 11
at 840 (citing United States v. Play
(2000)).
The court now turns to plaintiffs' prior restraint argument.
a.
Prior restraint
" First Amendment activities generally may be restricted by a zoning
ordinance that contains 'content-neutral' regulations governing the time, place,
and manner of expression, so long as the ordinance is designed to serve a
9
substantial governmental interest and does not unreasonably limit alternative
avenues of communication." Blue Moon Entertainment, L L C v. City of Bates
City, Mo., 44 1 F.3d 56 1, 565 (8th Cir. 2006) ( quoting City of Renton v. Play
time
Theatres, Inc., 475 U.S. 4 1, 47 ( 1986)). " If, however, the ordinance re quires
that an individual obtain a license or permit prior to engaging in the protected
activity then the licensing scheme is analyzed as a 'prior restraint' on the
,
activity." Id. ( quoting F W /P B S, 493 U.S. at 223 (plurality opinion)).
Plaintiffs' verified complaint states," [i]t is the official policy and custom
of Rapid City to re quire that a sexually oriented business ac quire approval as a
conditional use pursuant to R C M C§ 17.54.030 prior to opening or operating."
(Docket 1 at p. 7). The memorandum supporting plaintiffs' preliminary
injunction motion reaffirms this fact :" R C M C§ 17.50. 186( E) re quires a
' Sexually Oriented Business' to obtain conditional use approval under R C M C
§ 17.54.030." (Docket 17 at p. 3).
As the court noted above,§ 17.50. 186( E) states:"Any sexually oriented
business lawfully operating in a location permitted by this section shall be
classified as a conditional use, and authorized by§ 17.54.030." Defendant
argues there is no prior restraint and the court should view the sexually
oriented business ordinance as" 'content-neutral' regulations governing the
time, place, and manner of expression[.] See Blue Moon, 44 1 F.3d at 565;
"
(Docket 19 at p. 16). Defendant contends§ 17.50. 186( E) shows there is no
prior restraint because of the word "shall." (Docket 19 at pp. 15- 16). This
argument is unconvincing because, despite using "shall," the City Code still
10
re quires Mr. Eliason's retail enterprise to meet the sexually oriented business
ordinance in§ 17.50.186 and the conditional use re quirements in§ 17.54.030.
Plaintiffs' point is those barriers prevent expression be fore it happens. And
they are correct.
The legal memorandum Assistant City Attorney Cushman produced
confirms a sexually oriented business may not open and operate until it
obtains a conditional use permit. (Docket 1-10). The memorandum explains
that"[t]he zoning code regulates sexually oriented businesses ( S O Bs) in R C M C
17.50.186 and re quires a conditional use permit for all such businesses. . . .
In these ty
pes of situations, individuals are directed to obtain the [conditional
use permit] be fore obtaining a business license." Id. at p. 1, n.1.
In Blue Moon, the Eighth Circuit analyzed a comparable municipal code
and how it related to an exotic dancing club. The court stated :"Section 406 of
the Bates City Municipal Code re quires an adult business to obtain a
conditional use permit prior to engaging in a protected activity, and, there fore,
it is a prior restraint [.]" Blue Moon, 441 F.3d at 565. Based on the Blue Moon
case, the City Attorney's memorandum and the interplay between§ 17.50.186
and§ 17.54.030, plaintiffs correctly argue the City Code imposes a prior
restraint on them.
"A prior restraint on the exercise of First Amendment rights bears a
'heavy presumption against its constitutional validity " Douglas v. Brownell,
.'
88 F.3d 1511, 1521 (8th Cir. 1996) ( quoting Vance v. Universal Amusement
Co., 445 U.S. 308, 317 (1980) (per curiam)). " [ T]he mere existence of the
11
licensor's unfettered discretion, coupled with the power of prior restraint,
intimidates parties into censoring their own speech, even if the discretion and
power are never actually abused." City of Lakewood v. Plain Dealer Publishing
Co., 486 U.S. 750, 757 ( 1988). For a prior restraint to be consistent with the
First Amendment, two re quirements must be met. First, the"licensing scheme
generally must provide narrow, objective, and definite standards to guide the
licensing authority [ . ]" Blue Moon, 44 1 F.3d at 565. Second, it"may only
impose a restraint for a specified and reasonable period, and must provide for
prompt judicial review." Id. The overarching idea is the scheme"must not vest
unbridled discretion in the hands of a government official." Id. Challenges to
prior restraints may be facial or as-applied. See Id. (analyzing a facial
challenge); Taucher v. Born, 53 F. Supp. 2d 464, 48 1-82 (D.D. C. 1999) (finding
an as-applied violation). The court starts by evaluating plaintiffs' as-applied
argument.
1.
Standards
The ordinance applied to deny plaintiffs a conditional use permit "must
provide narrow, objective, and definite standards to guide the licensing
authority[.] Blue Moon, 44 1 F.3d at 565; see Lady J. Lingerie, Inc. v. City of
"
(
Jacksonville, 176 F.3d 1358, 1362 ( 1 1th Cir. 1999) " Standards must be
precise and objective.") (emphasis in original) (collecting cases). " [S]uch
standards can be provided through established practice' if absent from the text
'
of the code." Advantage Media, L. L. C. v. City of Eden Prairie, 456 F.3d 793,
12
804 (8th Cir. 2006) ( quoting Forsy County, Georgia v. Nationalist Movement,
th
505 U.S. 123, 133 (1992)).
The record from the Common Council meeting where the Council denied
plaintiffs a conditional use permit establishes that§ 17.50.186(D)(l)(b), which
defines"educational facility is central to this in quiry ( Exhibit 103 at pp. 44,"
.
68). As explained earlier,§ 17.50.186(D) prohibits sexually oriented
businesses from operating within 1,000 feet of educational facilities, and
§ 17.50. 186(D)(l)(b) defines educational facility
:
A public or private educational facility including but not limited to
child
day
care
facilities,
nursery
schools,
preschools,
kindergartens, elementary schools, private schools, intermediate
schools, junior high schools, middle schools, high schools,
vocational schools, secondary schools, continuation schools,
special education schools, junior colleges, and universities; school
includes the school grounds, but does not include facilities used
primarily for another purpose and only incidentally as a school[.]
R C M C§ 17.50. 186(D)(l)(b).
Members of the City Council grappled with what constitutes an
educational facility and whether B H T fits that definition. ( Exhibit 103 at
pp. 44-68). Legal counsel for B H T and several members of the public
addressed the City Council prior to its vote. Id. at pp. 2-44. These remarks
heavily focused on the protection of children and what each speaker viewed as
the ordinance's purpose. Id.
The first Councilmember to speak highlighted that the definition in
§ 17.50. 186(D)(l)(b) is not exhaustive, noting" [t]he ordinance says a sexually
oriented business should not be permitted to operate within a thousand feet,
and we have this list. We talked about this list of schools, and it starts out like
13
,
this. 'A public or private educational facility including, but not limited to.' "
Id. at pp. 45-46. In considering why the"ordinance [was] put in place in the
first place [,]" this Councilmember, who voted to deny plaintiffs' conditional use
permit, stated" [t]he intention of this to me is for kids. It would seem like it's
for kids." Id. at p. 46. Referring to the City Attorney's legal advice, this
Councilmember commented," I do want to say our City Attorney is trying to go
clearly as best they can by the law and they don't read into the intention and
all of that like we will up here. But I think the spirit of the law in this is
upheld." Id. at p. 47.
Another Councilmember who voted against issuing the conditional use
permit explained," I want to be on the side that says this is not good for
society
." Id. at p. 49. In discussing his view on the rationale underlying this
ordinance's regulation of sexually oriented businesses, the Councilmember
stated :
So the reality is, there are always going to be people who choose
the wrong path and that has started from the very beginning of
time starting with the apple, right? So, but that doesn't mean that
we can't regulate, that doesn't mean that we can't make sure that
our community re flects the moral fortitude of all of the people
let's just say the majority of the people in this city. And that's
what this adult oriented business-or this ordinance was about.
So I'm going to stand with the side in my opinion that is right.
Id. at pp. 49-50. Addressing the members of the public at the meeting, this
Councilmember went on to say," I want you all to know that we have to do
better at getting people into office who will make these laws tougher. The way
to get rid of these is to make sure that we have the right people in office that
are appointing the right judges in the right places that make the right decisions
14
that re flect our moral values, and that goes all the way up to the Supreme
Court." Id. at p. 50.
A third Councilmember voting to deny plaintiffs' conditional use permit
focused on her understanding of the ordinance's intent :"And I also believed
when I read the ordinance that the intent of that ordinance, just like Mr. Biggs4
said, was not that it had to fall in yours educational. The intent was to keep
the adult oriented businesses away from our children and from my
grandchildren. And that's important to me." Id. at p. 5 1.
These remarks are important to this court's constitutional in quiry
because the court has to answer the following question: was the standard of
re quiring plaintiffs' sexually oriented business to be over 1,000 feet away from
an educational facility applied in a"narrow, objective, and definite" manner?
See Blue Moon, 441 F.3d at 565. This question does not involve weighing the
moral values of any statements made by members of the public to the City
Council or any Councilmember's statements. The court's duty is to read the
ordinance's definition of educational facility, assess defendant's application of
it to plaintiffs and ask whether the ordinance "provide [d] narrow, objective, and
definite standards to guide the licensing authority[.]" See id.
4Mark Biggs is one of the several members of the public who addressed
the City Council be fore the vote. Id. at pp. 32-34. Mr. Biggs stated he
participated in City Council meetings where the sexually oriented business
ordinance was crafted. Id. at p. 32. He expressed concern about the number
of registered sex offenders in Rapid City, and based on that statistic, he stated
the ordinance had two purposes :"to protect the children ,] and the idea was
[
behind it to keep-keep these businesses as far [away] as we could from
children and any of the functions that they would go to." Id. at p. 34.
5 This language is taken from the transcript entered into evidence.
15
As applied to plaintiffs, the court finds the definition of educational
facility in§ 17.50.186(D)(l)(b) is not sufficiently"narrow, objective, and
definite [. " See Blue Moon, 441 F.3d at 565. Further, the evidence does not
)
support finding ade quate standards are part of the City "established
's
practice [. " See Advantage Media, 456 F.3d at 804.
)
_
One basis for this determination is the opposite conclusions that the
City Attorney and City Council reached on whether B H T is an educational
facility The memorandum6 from the City Attorney to the City Council
.
thoroughly considered the scope of§ 17.50.186(D)(l)(b). (Docket 1-10).
Addressing how government entities view schools and businesses, the
memorandum noted :
The state and federal governments do not consider commercial
businesses like Karate for Kids to be educational facilities that fall
within their regulations and oversight. . . . For example, state
regulations re quire school attendance for students in primary and
secondary school, with limited exceptions. . . . Any educational
component of Karate for Kids' programming is not mandated, and
the business could remove its educational components at their
own discretion.
Id. at p. 3. The memorandum also considered B H T's purpose, finding :
While the ordinance is a little confusing in the way it mixes the
term schools and educational facilities, it would read the ordinance
far too broadly to conclude that businesses which are only
6R C M C§ 2. 16.0 10 created the Office of the City Attorney, and§ 2.16.020
established the Office's duties, including"furnish [ing] an opinion upon any
matter relating to the affairs of the city" when directed by the Common Council
or any city officer. The memorandum states a position on behalf of"staff [. "
)
(Docket 1-10 at p. 1) ( As I discuss in detail below, staff do not believe Karate
"
for Kids is an educational facility[. "); see also R C M C§ 2.16.030 " The Assistant
)
(
City Attorney shall have the authority to per form all the duties of the City
Attorney in the absence of the City Attorney or at the re quest of the City
Attorney.").
16
incidentally educational and which are used primarily for another
purpose are "educational facilities" that re quire a buffer zone. If
that is the case, then any business which happens to offer a class
may claim that it is an "educational facility" within the ordinance,
and certainly any business that works with children could make
the same claim.
Id. Turning to the use of"educational facility" in other portions of the City
Code, the memorandum highlighted :
The descriptions in the zoning code for residential neighborhoods
discuss residential uses as well as "noncommercial, recreation,
religious and educati onal facilities" that "are normally re quired to
provide a balanced and attractive residential area."
RCMC
17.44.010; see als o RCMC 17.10.010, 17.12.010. In those zoning
districts, family day care centers, elementary and high schools,
and child care centers are permitted and conditional uses. A
commercial enterprise such as Karate for Kids is not allowed in
these residential zoning districts.
Id. (emphasis in original). The City Attorney's memorandum went on to explain
that" [t]he types of uses that re quire the 1000 foot buffer are uses which are
largely permanent in nature and which cannot possibly move to another
location if an unwanted neighbor moves in." Id. at pp. 3-4. As the court noted
above,§ 17.50. 186(D) prohibits sexually oriented businesses from operating
within 1,000 feet of various facilities such as churches, parks and schools.
Unlike those examples, the memorandum asserts, B H T "could operate within
any number of other commercial buildings in the City (Docket 1- 10 at p. 4).
."
The memorandum's final point is that " [c]hildren and students attend day care
facilities and schools for a significant length of time, and c;J.ay care facilities and
schools will likely have children on the site all day for a majority of the year."
Id. In the City Attorney's view,"a child may visit a recreational facility like
Karate for Kids for as little as an hour a week, and it is unlikely that children
17
are present in the Karate for Kids facility for the lengths of time that schools
are occupied by their students." Id.
When the Planning Commission decided to approve plaintiffs' conditional
use permit, it considered whether B H T was an educational facility. ( Exhibit
102 at p. 14). One member of the Planning Commission remarked," I'm
curious as to how the-the little karate academy around the corner relates. Is
that a-is that considered a school or is that a business, or how does that
work?" Id. Ms. Fisher of the Rapid City Community Planning and
Development Services Department stated," So that would not be what we would
consider a school. That is a sports activity and many of those, whether it be a
fitness gym or a karate class, are open to individuals of all ages. So it would
not fall with that description of what we would look at for a school." Id.
The City Council reached the opposite conclusion, and its reasoning was
distinct from the City Attorney's memorandum especially. As set forth above,
when deciding B H T constituted an educational facility members of the City
,
Council primarily focused on whether their decision would be in the best
interests of children in the City and their concern for personal moral values.
Id. at pp. 44-68. Absent from the reasoning of some City Councilmembers was
the variety of grounds the City Attorney provided for its determination.
Although some Councilmembers made remarks about the City Attorney's
position, they were cursory. See, � id. at p. 47 " I do want to say our City
(
'
Attorney is trying to go clearly as best they can by the law and they don't read
into the intention and all of that like we will up here.").
18
Plaintiffs' application for a conditional use permit hinged on the
definition of"educational facility" in§ 17.50.186(D)(l)(b). The ordinance is
"
written broadly. It relates to "public or private educational facilit [ies] and
provides a non-exhaustive list of example facilities. Id. It does not provide
guidance on what other facilities may fall 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 [.]" Id.
Because of the way the definition was written, it resulted in Rapid City
government entities forming opposite interpretations that they reached by
entirely different paths. The court finds this demonstrates that
§ 17.50.186(D)(l)(b), as applied to plaintiffs, fails to "provide narrow, objective,
and definite standards to guide the licensing authority [.]" See Blue Moon, 441
F.3d at 565.
Setting aside the City Attorney's memorandum, the reasons stated by
some of the Councilmembers in denying plaintiffs' conditional use permit show
§ 17.50.186(D)(l)(b) does not sufficiently limit the City Council's discretion. As
the court set forth above, the dominant concerns of some Councilmembers
were children as well as personal moral and religious values. See supra
Section I.a. at pp. 13-15;( Exhibit 103 at pp. 44-68). While many of the
enumerated facilities in the ordinance are places where children are present for
extended periods of time, several of them are not-specifically, vocational
schools, junior colleges and universities. § 17.50.186(D)(l)(b). But because of
the broad nature of the definition, Councilmembers found it proper to "read
19
into the intention" of the City Code. ( Exhibit 103 at p. 47). One
Councilmember decided interpreting the definition of educational facility
entailed choosing "to be on the side that says [plaintiffs' business] is not good
for society."7 Id. at p. 49. Another Councilmember interpreted the definition in
§ l7.50.186(D)(l)(b) to include" [t]he intent . . . to keep the adult oriented
businesses away from our children and from my grandchildren." Id. at p. 5 1.
Because the definition of"educational facility" was written so broadly, it
led to Councilmembers applying their personal moral views instead of the
ordinance's terms. If the definition was"narrow, objective, and definite" as
Blue Moon re quires, it would not result in Councilmembers speculating about
the ordinance's underlying rationale-they would simply apply its terms. See
Blue Moon, 441 F.3d at 565; see also Lady J., 176 F.3d at 1362 (finding
unconstitutional standards that "empower the zoning board to covertly
discriminate against adult entertainment establishments under the guise of
general compatibility' or 'environmental' considerations."). As evidenced by the
'
record some Councilmembers made, the definition of"educational facility" in
§ 17.50. 186(D)(l)(b) fails to"provide the guideposts that check the licensor and
7 That Councilmember went on to apply his personal religious beliefs,
referring to "people who choose the wrong path ,]" which"start [ed] with that
[
apple [.]" Id. This is an allusion to the Book of Genesis in the Old Testament of
the Bible, 2 Genesis 16 : 17, where Adam and Eve eat fruit they were
commanded not to eat. Several religious leaders from the community spoke
publicly to the City Council be fore the vote, encouraging it to deny the
conditional use permit, ( Exhibit 103 at pp. 1-43), which supports the
conclusion that this Councilmember is applying a religious belief. Lost in the
City Council's deliberation was the First Amendment legal reality that plaintiffs'
proposed business is as legitimate a commercial enterprise as B H T or any
other retail establishment in the City.
20
allow courts quickly and easily to determine whether the licensor is
discriminating against dis favored speech." See Lakewood, 486 U.S. at 758.
The court finds this establishes an additional basis for concluding
§ 17.50. 186(D)(l)(b), as applied to plaintiffs, is an unconstitutional prior
restraint.
Based on the analysis above, the court finds no reason to conclude the
"heavy presumption against [the] constitutional validity" of prior restraints has
been overcome. See Douglas, 88 F.3d at 152 1. Because the court finds
§ 17.50. 186(D)(l)(b) is not sufficiently"narrow, objective, and definite,'' it is not
necessary for the court to analyze whether the restraint is imposed"for a
specified and reasonable period, and . . . provide [s] for prompt judicial review."
See Blue Moon, 44 1 F.3d at 565. And because the court finds an as-applied
First Amendment violation, it need not explore plaintiffs' facial challenge.
b. Vagueness
The United States Supreme Court explained the rationale for
constitutional challenges to vague laws :
It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Vague laws
offend several important values. First, because we assume that
man is free to steer between lawful and unlawful conduct, we insist
that laws give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing
fair warning. Second, if arbitrary and discriminatory enforcement
is to be prevented, laws must provide explicit standards for those
who apply them. A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad
h oc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application. Third, but related, where a vague
statute abuts upon sensitive areas of basic First Amendment
21
freedoms, it operates to inhibit the exercise of those freedoms.
Uncertain meanings inevitably lead citizens to steer far wider of the
unlawful zone than if the boundaries of the forbidden areas were
clearly marked.
Gray
ned v. City of Rock ford, 408 U.S. 104, 108-09 (1972) (internal punctuation
and footnotes omitted); see also Kolender v. Lawson, 461 U.S. 352, 357-58
( 1983) (holding a law restricting speech is impermissibly vague if it fails to
provide fair notice to reasonable persons of what is prohibited, or if it fails to
provide reasonably clear guidelines for law en forcement officials, resulting in a
"chilling" effect on speech protected by the First Amendment); Village of
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497-99 (1982)
(noting that a"more stringent vagueness test should apply" where a law
interferes with the right of free speech).
The criteria to evaluate language challenged on vagueness grounds is
that of"flexibility and reasonable breadth, rather than meticulous specificity"
or"mathematical certainty." Gray
ned, 408 U.S. at 110. These standards
should not be"mechanically applied," but rather should be considered in light
of the"nature of the enactment." See Village of Hoffman Estates, 455 U.S. at
498. The City Code "can be impermissibly vague for either of two independent
reasons. First, if it fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits. Second, if it authorizes
or even encourages arbitrary and discriminatory en forcement." Hill v.
Colorado, 530 U.S. 703, 732 (2000).
In evaluating a law that"affect[s] communication protected by the First
Amendment," the court may consider a challenge to its facial validity regardless
22
of whether or not the law is vague as applied if"the statute's deterrent effect on
legitimate expression is . . . both real and substantial and if the statute is [not]
readily subject to a narrowing construction by the state courts." Young v.
American Mini Theatres, Inc., 427 U.S. 50, 59-60 (1976) (internal quotation
marks omitted) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 216
(1975)).
"A facial challenge to a legislative Act is . . . the most difficult challenge to
mount successfully, since the challenger must establish that no set of
circumstances exist under which the Act would be valid." United States v.
Salerno, 481 U.S. 739, 745 (1987). Striking down a law on its face is"strong
medicine" which should be employed"with hesitation, and then 'only as a last
resort.' " New York v. Ferber, 458 U.S. 747, 769 (1982). The court turns to
plaintiffs' as-applied challenge first.
Similar to plaintiffs' prior restraint argument, their vagueness challenge
revolves around the definition of"educational facility" in§ 17.50.186(D)(l)(b).
(Docket 17 at pp. 18-21). Plaintiffs argue the contrast between the
interpretations of the City Council on one hand and the City Attorney and
Planning Commission on the other supports finding the ordinance
unconstitutionally vague. Id. at pp. 19-20. Defendant contends the term is
not vague because it"is not an uncommon term" and has a clear definition in
Black's Law Dictionary and Webster's Dictionary. (Docket 19 at pp. 25-26). 8
BDefendant cites Wolfe v. Village of Brice, Ohio, 37 F. Supp. 2d 1021
( S.D. Ohio 1999), to argue"educational facility" is not vague. (Docket 19 at
pp. 27-28). The ordinance challenged in Wolfe has the same definition of
23
The court finds the definition of "educational facility" in
§ 17.50.186(D)(l)(b) is unconstitutionally vague as applied to plaintiffs. The
court bases this determination primarily on its discussion above on how the
broadly written definition resulted in the City Council forming one
interpretation and the City Attorney and Planning Commission coming to the
opposite conclusion. See supra Section I.a. at pp. 13-18. " In determining
whether an ordinance is impermissibly vague, courts traditionally have relied
'
on the common usage of statutory language, judicial explanations of its
meaning, and previous applications of t he statute to t he same or similar
c onduct.'" Postscript Enters., Inc. v. Whaley, 658 F.2d 1249, 1254 (8th Cir.
1981) (emphasis added) ( quoting Balthazar v. Superior Court, 573 F.2d 698,
700 (1st Cir. 1978)). When Rapid City government entities that are interpreting
the same ordinance form irreconcilable views, the ordinance " 'violates the first
essential of due process of law,' because citizens must necessarily guess at its
'
meaning and differ as to its application.' " United States v. Bamberg, 478 F.3d
934, 937 (8th Cir. 2007) ( quoting Connallyv. Gen. Constr. Co., 269 U.S. 385,
391 (1926)). The court finds§ 17.50.186(D)(l)(b) " fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits." Hill, 530 U.S. at 732.
educational facility as§ 17.50.186(D)(l)(b). See Wolfe, 37 F. Supp. 2d at 1023
n.2. But there was no vagueness challenge in Wolfe. The court found no
constitutional violation based on content neutral time, place and manner
analysis. Id. at 1023-24 (citing Renton, 475 U.S. at 41). Wolfe does not apply
to the issues here.
24
The record from the City Council meeting demonstrates the definition of
"educational facility" in§ 17.50.186(D)(l)(b)"encourages arbitrary and
discriminatory en forcement." Hill, 530 U.S. at 732. In its effort to determine
whether B H T was an educational facility, several Councilmembers prioritized
"keep [ing] the adult oriented businesses away from our children [.]" ( Exhibit
103 at p. 51). They inserted their individual moral and religious views to"be
on the side that says this is not good for society." Id. at p. 49. These
considerations are not in§ 17.50.186(D)(l)(b). When the loosely written
definition of"educational facility'' in§ l7.50.186(D)(l)(b) permits interpretation
far beyond its terms, it is unconstitutionally vague because it"encourages
arbitrary and discriminatory·en forcement." Hill, 530 U.S. at 732. The court
finds§ 17.50.186(D)(l)(b) unconstitutionally vague as applied to plaintiffs.
There is no need to rule on plaintiffs' facial challenge to the ordinance.
With respect to plaintiffs' as-applied prior restraint and vagueness
challenges to§ 17.50.186(D)(l)(b), the court finds plaintiffs are"likely to prevail
on the merits [.]" See Planned Parenthood, 530 F.3d at 732-33. Based on this
determination, at this stage the court need not analyze plaintiffs' third
argument regarding availability of alternative locations.
II.
Threat of irreparable harm
The next Dataphase factor plaintiffs must show is the threat of
irreparable harm. Dataphase, 640 F.2d �t 113. " It is well-established that
' [t]he loss of First Amendment freedoms, for even minimal periods of time,
un questionably constitutes irreparable injury.' " Powell v. Noble, 798 F.3d 690,
25
702 (8th Cir. 2015) ( quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
Plaintiffs satisfy this factor because the court determined they are likely to
prevail on certain First Amendment claims.
III.
Balance between harm and injury in granting injunction
In the next Dataphase factor, the court must assess the balance between
the alleged irreparable harm and the harm an injunction would inflict on other
parties. Dataphase, 640 F.2d at 113. " The balance of e quities . . . generally
favors the constitutionally-protected freedom of expression." Phelps- Roper v.
Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled on other grounds by
Phelps- Roper v. City of Manchester, Mo., 697 F.3d 678, 686 (8th Cir. 2012);
see Traditionalist Am. Knights of Ku Klux Klan v. City of Desloge, Mo., 914 F.
Supp. 2d 1041, 1045 ( E.D. Mo. 2012) (noting this principle was not overruled);
Risky Bus. Novelties
&
Videos, Inc. v. Ctv. of Crow Wing, Minn., No. C I V. 12-
2947, 2013 W L 1435235, at *8 (D. Minn. Apr. 9, 2013) (same). Based on the
analysis above finding First Amendment violations, plaintiffs satisfy this factor.
IV. Public interest
The final Dataphase factor re quires plaintiffs to show an injunction
supports the public interest. Dataphase, 640 F.2d at 113. " [ T]he
determination of where the public interest lies . . . is dependent on the
determination of the likelihood of success on the merits of the First
Amendment challenge because it is always in the public interest to protect
constitutional rights." Nixon, 545 F.3d at 690, overruled on other grounds by
Manchester, 697 F.3d at 690; see Tsuruta v. Augustana Univ., No. 4:15- C V26
04150, 2015 WL 5838602, at *10 (D.S.D. Oct. 7, 2015) (noting this principle
was not overruled). This factor is met because the court concluded plaintiffs
established they are likely to prevail on certain First Amendment arguments.
V.
Security
Under Rule 65 of the Federal Rules of Civil Procedure, the"court may
issue a preliminary injunction . . . only if the movant gives security in an
amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined [.]" Fed. R. Civ.
P. 65(c). "Although [the Eighth Circuit] allow[s] the district court much
discretion in setting bond, [it] will reverse [the district court's] order if it abuses
that discretion due to some improper purpose, or otherwise fails to re quire an
ade quate bond or to make the necessary findings in support of its
determinations." Ranchers Cattlemen Action Legal Fund v. U.S. Dep't of Agric.,
566 F. Supp. 2d 995, 1008 (D.S.D. 2008) (alterations in original) (citing Hill v.
Xyquad, Inc., 939 F.2d 627, 632 (8th Cir. 1991)); see Traditionalist Am.
Knights of Ku Klux Klan, 914 F. Supp. 2d at 1052.
During the preliminary injunction hearing, plaintiffs re quested the court
impose no security because it would re quire them to pay money to exercise
First Amendment rights. The City re quested security from plaintiffs. It
indicated a ruling for plaintiffs could result in a lawsuit against the City by
BH T, and the City may pay $100,000 in that event. Because plaintiffs seek to
carry out expression the First Amendment protects, and defendant did not
provide an ade quately substantiated amount for security, the court finds no
security is justified. See United Utah Party v. Cox, 268 F. Supp. 3d 1227, 1260
27
(D. Utah 2017) " This preliminary injunction en forces fundamental
(
constituti onal rights against the government. Waiving the security re quirement
best accomplishes the purposes of Rule 65(c)."); Complete Angle, L L C v. City of
Clearwater, Fla., 607 F. Supp. 2d 1326, 1335-36 ( M.D. Fla. 2009) " Waiving the
(
I
bond re quirement is particularly appropriate where a plaintiff alleges the
in fringement of a fundamental constitutional right.") (collecting cases).
ORDER
Based on the above analysis, it is
O RD E R ED that plaintiffs' preliminary injunction motion (Docket 14) is
granted.
I T I S F U R T H E R O RD E R ED that until further order of this court the City
,
its agents and employees are enjoined from en forcing R C M C
§ 17.50.186(D)(l)(b) to deny a conditional use permit to plaintiffs for the
operation of their business at 1141 Deadwood Avenue, Suite 7, in Rapid City
,
South Dakota.
I T I S F U R T H E R O RD E R ED that plaintiffs need not provide security
under Rule 65(c) of the Federal Rules of Civil Procedure.
I T I S F U R T H E R O RD E R ED that a scheduling order will be entered for the
resolution of plaintiffs' remaining claims.
Dated January
£!, 2018.
BY T H E COURT :
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C H I E F J UD G E
28
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