Agenda - Planning Commission - 12/03/1996

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Z.B. November 1996 - Page.3 The.company appealed. Both parties asked the appeals court to. make a final decision, saying there were no further factual issues -- only a legal one. DECISION: Reversed and sent back to the trial court. . .. The lower court improperly denied the order the company requested. Enforcement of the ordinance violated the First Amendment, so the city was not allowed to do so. The appeals court did not base its decision on the onsite/ offsite distinction, though. Instead, it found the ordinance could not be enforced because, in conjunction with the state law, it impermissibly .distinguished between different types of noncommercial speech. '. Distinguishing between different types of nonconforming, noncommercial speech was not allowed under the First Amendment. The only types of non- commercial speech the ordinance would allow were those that related to activi- ties on the premises, so only nonprofit entities would be allowed to put up signs. Forms of expression such as politica! speech would be disfavored, result- ina in a sign that said "Remember to Vote" being .forced to come down while a sign that identified the. public library could .stay up. Because this was effec- tively a content-based restriction, the city could not enforce the ordinance as written. The city might have a better case if it banned ali signs and then created a limited exception for signs that identified buildings. The exception could be based ori.the concept that such signs served a need that couldn.'t be met any other way, .much .like.traffic and safety signs. Editor's note: In 1989, the same court decided a similar case AckerleY Com- munications brought against Cambridge's neighbor, the city of Somerviile,'Mass. The court decided Somerville's sign ordinance violated the First Amendment. The case wasAckertey Communications of Massachusetts v. City of Somerville, 878 F.2d 513 (1989). .. · .Metromedia In'c. v. San Diego, 453'.U.S. 490, 101 $.¢t. 2882, 69 L.Ed.2d 800 (1981).. First Amendment-- Ordinance would require relocation of store that sells sexually explicit materials ZJ. Gifts D-2, L.L.C. v. City of Auro.ra, 9$2 F. Supp. 1256 (Colorado) 1996 Z.J. Gifts D-2, L.L.C. was an Oklahoma partnership that operated a store called Christie's in the city of AurSra, Colo. '~' The store, which had been open since October 1993, was in a commercial retail zone. It sold and rented sexually explicit videotapes. It also sold lingerie, magazines with sexually explicit content and sexually oriented novelties. Every- thing the store sold or rented was for offsite use. In January 1994, the cityadopted an, ordinance that prohibited operation of sexually oriented businesses without ah appropriate .license from the city. All such businesses were to be confined to industrial zones. Since the city consid- ered Christie's to be a sexually oriented business,.it said Christie'shad to-relo- cate to an industrial zone. ~. . The reason the c!ty enacted the ordinance was to minimize the adverse effects associated with such businesses, including reduction in property values,