Agenda - Planning Commission - 11/04/1997

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), I I Page 2 - October 10, 1997 Z.B. Adult Entertainment - City deilies permit to adult bookstore seeking to install video booths Franken Equities L.L.c. v. City of Evanston, 967 F.Supp. 1233 ("yorning) 1997 Franken Equities L.L.c. operated an adult bookstore in the city of Evanston, Wyo. It wanted to offer on-premises viewing of adult videotapes. If Franken added video viewing, the store would be reclassified as an "indoor amusement and video establishment." The location was properly zoned for that use, but all such establishments required a conditional use permit. Franken applied to the city Planning and Zoning Commission for a permit. At a public hearing, residents, including several commission members, opposed the permit because of the content of the videos to be shown. The commission also received a petition opposing "pornography" in the city. The commission denied the permit, finding the proposed use wouldn't be compatible with surrounding land uses. Franken sued the city. It claimed the city's zoning ordinance violated the First Amendment because it required a special permit before video viewing facilities could be built. Franken claimed the city's procedures for granting permits didn't include safeguards to prevent the commission from unfairly restricting free speech. The city code required that conditional uses be compatible with surrounding land uses. It didn't list what factors the commission should consider in determining compatibility. The code also didn't give the commission a time limit in which to grant or deny permits. Franken asked the court for an order preventing the city from enforcing the ordinance. The city asked for judgment without a trial. It argued the procedures it used to determine compatibility were content-neutral and therefore constitutional. DECISION: Order granted. - The ordinance acted as a prior restraint of free speech in violation of the First Amendment, so the court ordered the city not to enforce it. Nothing in the city code prevented the commission from using its "unbridled discretion" to deny conditional use permits based on their content. The code needed a list of objective factors the commission would consider in deciding to grant or deny a permit. As it was, the commission could deny permits based on the proposed use's content - in this case, pornography. Such government regulation was an ynconstitutional "prior restraint" if it made protected expres- sion contingent on getting permission from government officials. In addition, the code didn't provide a time limit in which the commission had to decide on a permit application. The license of a business protected by the First Amendment had to be issued within a reasonable time period or it would suppress free speech. see also: City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). ?G