Agenda - Planning Commission - 02/04/1997

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Z.B. January 15, 1997 -- Page 7 The Toledo city code allowed adult bookstores and entertainment, including nude dancing, under a special permit. The establishment had to be more than 500 feet from any residential district, school, church, park, playground or other use established specifically for the activities of minors. In addition, it had to be more than 1,000 feet from any two of these uses. The city admitted very few sites satisfied the ordinance. The code also authorized the city council to "provide conditions or restrictions" on special uses, "as ... necessary to secure the general objectives of [the] zoning ordinance." The city council said this provision allowed it to deny a permit whenever it decided issuing the permit would conflict with the zoning ordinance's general objectives. The code did not require the city to act on an application within a specified time period. The county plan commission reviewed Dia's application and, after a hearing, approved it with additional requirements. Next, the city council's planning and zoning committee considered the application. Several citizens spoke against the permit. The committee voted against granting the permit, and the city council did the same. Dia asked a federal court to order the city to issue the permit. He claimed the city code's provisions on adult entertainment violated the First Amendment. He produced evidence that the council never voluntarily granted a permit for adult entertainment under the ordinance. DECISION: Preliminary order granted. Dia was entitled to a pre-trial order requiring the city to issue the permit. Dia was likely to prove at trial the ordinance was unconstitutional as the city applied it to him. Zoning ordinances that limited protected speech had to be content neutral and had to leave open alternative routes for the protected speech. Further, a licensing scheme that regulated an entire business more strictly was a "prior restraint," which courts viewed more strictly. The Toledo ordinance regulated an entire business and risked suppressing protected speech. The city had applied it more than 18 years to effectively ban adult entertainment, which strongly suggested it was a prior restraint on protected speech. It therefore had to contain two safeguards: It could only suppress speech for a specified brief time without a court reviewing the ban, and it had to contain an avenue for prompt review in court. The ordinance contained no express time limit within which the council had to make its determination. Nor did it include narrow, objective standards to limit the city council's discretion. The ordinance did not allow the council to deny a permit if the applicant met the criteria. The council could only condition or restrict the permits it issued. The ordinance established areas of the city where adult entertainment was allowed. Once an applicant met the ordinance's requirements, the council had to issue a permit. Even if the ordinance was not a "prior restraint," it still appeared to lack alternative routes of communication. Dia met the other requirements for issuance of a preliminary order: he