Agenda - Planning Commission - 07/07/2011

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Zoning -Bulletin r/l y Z5, 2011-4 Volume-5-I-No1G located more than 750 feet from the nearest lot line of specific listed zoning districts. On February 1, 2006, the City published notice of its intent to amend § 14.01. To maintain the status quo during consideration of the proposed amendment, the city council temporarily barred the issuance of new licenses for adult businesses in the downtown area of the City. In March 2006, the City amended § 14.01 to also pro- hibit sexually oriented businesses from locating within the City's Downtown Development District. On February 14, 2006, Big Dipper Entertainment and Aquarius Investments (collectively, "Big Dipper") applied for permission to operate a topless bar on a parcel of land (the "Property") in the City. The March 2006 amendment to § 14.01 encompassed the Property. Thus, the § 14.01 amendment effectively prohibited Big Dipper from using the Property for an adult business. The City re- jected Big Dipper's application. Big Dipper eventually filed a legal action in federal district court, challenging the constitutionality of the October 2005 and March 2006 amendments to § 14.01. Big Dipper claimed that the amend- ments violated the First Amendment. In other words, Big Dipper ar- gued that § 14.01 was an unconstitutional restriction upon speech. The City moved for summary judgment —it asked the court to find there were no material issues of fact in dispute and to decide the matter on the law alone. The district court granted summary judgment in favor of the City. Big Dipper appealed. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Sixth Circuit, held that § 14.01 did not violate the First Amendment. In so holding, the court first explained that "[n]ormally, a con- tent -based restriction on speech is subject to strict scrutiny." How- ever, "zoning ordinances that regulate adult businesses —which typically on their face are content -based —are treated differently. So long as they aim to limit the secondary effects of adult businesses, [the courts] treat the ordinances as content -neutral, which means they get less scrutiny." Thus, here, if § 14.01 was limited to the secondary effects of adult businesses, the ordinance would be constitutionally valid if it was "designed to serve a substantial government interest and allow[ed] for reasonable alternative avenues of communication." © 2011 Thomson Reuters