Agenda - Planning Commission - 12/06/2018

Home

October 10, 2018 I Volume 12 I Issue 19 Zoning Bulletin Addressing Stardust's First Amendment argument, the Eleventh Circuit held that the Code imposed no impermissible restriction on Stardust's freedom of speech. Stardust had specifically argued that the Code was unconstitutional under the First Amendment because the Code operated as "an impermissible re- striction on Stardust's constitutionally protected commercial speech" by regulat- ing the manner in which a store displays its merchandise. The Eleventh Circuit agreed that the Code's definition of "sexual device shop" turned "not only on the store's stocking and selling of certain products, but also on its display and arrangement of those products." Here, the court concluded that the Code's re- striction based on product display and arrangement implicated the FirstAmend- ment, but did not violate it. The court explained that a zoning ordinance designed to regulate the nega- tive secondary effects of adult businesses (such as the Code here), "justified without reference to the content of the regulated speech," is considered a content neutral time, place, and manner restriction. Thus, "[djespite its incidental impact on free speech, such an ordinance complies with the First Amendment if it is designed to serve a substantial government interest and leaves open alternatives avenues of communication," said the court. And, here, the court found that the City Code was so designed and did leave open such alternative avenues of communication. The court found that the evidence the City relied upon in draft- ing the Code was sufficient to support the conclusion that the Code advanced the City's legitimate interest in preventing negative secondary effects associated with sexually oriented businesses. The court also found that the Code left open sufficient alternative avenues of communication, including 73 sites inside the City limits where a licensed sexually oriented business could operate. The court also rejected Stardust's other constitutional claims The court held that Stardust's vagueness challenge failed because Stardust could not show that the Code was impermissibly vague in all of its applications. Rather, the court found that Stardust's operation "clearly" fell within the zone of prohibited conduct. The court also held that, contrary to Stardust's argument, the City's enforce- ment of the Code did not violate Stardust's right to equal protection even though a sexually oriented business was allowed to operate next door to Stardust. The court found that Stardust's claim failed because it could not show that it was "similarly situated" to that neighboring business —the Pink Pony. The Pink Pony had been legally operating prior to adoption of the Code, was properly licensed, and had an agreement with the City to relocate within a set number of years. Finally, the court rejected Stardust's argument that the Code impermissibly infringed on "the substantive due process right to private sexual intimacy." The court noted that the Code was a zoning ordinance that was a valid time, place, and manner restriction that left open 73 other sites for sexual device stores. The Code did not ban the sale or use of sexual devices in the City, nor did it impede any individual's ability to engage in private, consensual activity, found the court. See also: Peek -A -Boo Lounge of Bradenton, Inc. v. Manatee County, Fla., 630 E3d 1346, 1355 (ll th Cir. 2011). 4 ©2018 Thomson Reuters