TIME PLACE AND MANNER CASELAW UPDATE Showtime Entertainment v. Ammendola, --- F.Supp.2d ---, 2012 WL 3518539 (D. Mass Aug. 9, 2012). This is an update of a decision decisions discussed at the last meeting. Showtime Entertainment, LLC v. Ammendolia, --- F.Supp.2d --- 2012 WL 996805 (D. Mass March 22, 2012). That decision invalidated, on prior restraint grounds, the permitting component of the city ordinance, which provided that the city may grant a permit if certain disqualifying criteria are absent. The court found that the permit requirement was severable. The court now addresses Showtime’s challenges to:

 Restriction of the businesses size and hours of operation, and o No Adult Entertainment Use may exceed 2,000 square feet or 14’ feet in height . The Ordinance states this is to preserve the city’s historically rural atmosphere and for traffic safety. o No Adult Entertainment before 4:30 p.m.

 Prohibition of alcohol. Restriction of Business Size & Hours: Asthetics and Traffic. In its analysis of the size and hours restrictions the court primarily relies upon D.H.L. Associates v. O’Gorman, 199 F.3d 50 (1st Cir. 1999) where the First Circuit stated that an adult entertainment ordinance could be upheld bases upon: (1) testimony of the City’s Chairman of the town board; (2) experiences of surrounding towns; and (3) residents concern about crime. Though the court acknowledges simply using “proper constitutional phrases” is not enough but states that the city’s recitation of adverse secondary effects would be upheld because it is specific. Plaintiff attempted to argue that the hours of operation was content-based because it was justified by the stated purpose to allow school buses to finish their routes. The court negatives the notion Plaintiffs seek to have children exposed to their speech and upholds the provision on traffic concerns. I generally agree with the court on this one. From a passing school bus, how does an operating adult business look different from one that is operating? The court then goes on to justify the size and height restrictions based on traffic and aesthetic concerns. Plaintiffs identify that there are larger businesses in the area, but there argument is not great. Those business are not volume businesses, but rather are: self storage facilities, an utility substation, a landscape supply company, and a drive-in movie theatre. Although the Greenman–Pedersen study suggests that the town's concerns regarding traffic may be overstated, that study, as several residents noted at the October 7, 2008 meeting noted, did not account for the effect of a nearby drive-in movie theater on cumulative traffic patterns. (Pl.'s Appx. # 2 at 158–59). Finally, the fact that some large structures now exist on Milford Street does not detract from the town's concern that additional structures—particularly ones dedicated to

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adult entertainment—would further detract from the rural character of the town as a whole.

Showtime Ent., 2012 WL 3518539 at * 9.

So, apparently, one of the problems with adult businesses is that they do not appear rural enough. Plaintiffs argues that the interest would be better served by designed review and, therefore, was not narrowly tailored. The court rejects this argument saying the city has room to experiment.

Alcohol Prohibition:

The court applies intermediate scrutiny and finds that intermediate scrutiny is also appropriate under Article 16 of the Massachusetts constitution despite some language in Mendoza v. Licensing Bd., 44 Mass. 188, 196, 827 N.E.2d 180 (2005) stating that the Massachusetts Constitution “may provide greater protection for nude dancing than the First Amendment.” Id. at 191.

The court references they city’s studies and states:

These studies confirm what courts have accepted as a matter of common sense— that “liquor and sex are an explosive combination.” Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1124 (7th Cir.2001). Plaintiff criticizes the methodology and conclusions of the studies defendants cite, but does not meet its burden of showing that the town's evidence fails to support its rationale. It is sufficient that the town reasonably relied on evidence demonstrating a connection between the service of alcohol at adult businesses and an increase in crime. Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728. Because the by-laws are clearly designed to further the town's interest in preventing that effect, they meet the first requirement of intermediate scrutiny. Flanigan's Enters. v. Fulton Cnty., 596 F.3d 1265, 1277 (11th Cir.2010) (finding that substantial-interest requirement was “easily met” with respect to a comparable ordinance and that the alcohol prohibition furthered that interest).

Showtime Ent., 2012 WL 3518539 at *14.

The court concludes by awarding Plaintiffs their attorney’s fees and costs for their time spend prevailing on their prior restraint challenges.

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2302 N. Truman Entertainment Mgmt. v. City of Pevely, 2012 WL 6705868 (E.D. Mo. Dec. 26, 2012).

Plaintiff is represented by FALA’S own Luke Lirot.

TAKE-HOME ONLY BUSINESSES DO NOT CAUSE SECONDARY EFFECTS AND THE CITY HAS NOT SHOWN ANY EVIDENCE THAT COMPLAINANT’S OPERATION EVEN EXCEEDS THE 10% “ADULT MEDIA” THRESHOLD IMPOSED BY CITY ORDINANCE 1244.

That is the fabulous heading contained in the Court’s decision, which grants summary judgment in Plaintiffs favor on all seven counts discussed.

The nature of the business at issue was carefully framed. The store was to be a “Pure Pleasure Boutique,” which unlike previous “Megacenter” stores operated by the Kleinhans, would not sell any “pornography” or products that would cause it to be a sexually oriented business or adult business. Instead, it “would sell, for offsite use only, lingerie, lubricants, novelties, and marital aids.” Id. at * 1. The store explicitly intended to avoid goods that would render it to be a SOB.

The operators originally met with the City in October of 2010, explaining that their store was a mixed retail use that would not sell adult products like Pure Pleasure Megacenters in other jurisdictions.

In November of 2010, the store applied foe for a merchants license, stating that its intended use would be the sale of non-adult, non-sexually explicit movies, books, magazines, and novelties.

Ten days letter the store received a letter denying the application because 1) the zoning district does not allow for adult businesses, 2) adult businesses are only allowed in another zone; 3) the items for sale will classify the use as adult/sexually oriented under state law (more than 30%); 4) state law does not allow SOB’s within 1000 ft of specified uses; and 5) the use is inconsistent with the master plan currently being devised.

On November 22, 2010, the store’s counsel issued a letter back, stating, among other things that there must be some confusion as to the nature of the use, no doubt flowing from the fact that no city official has seen the proposed business.

Two days later the city notified the store it was not eligible for sewer or water service because it did not have a business license.

The same day the store applied for a sign which was immediately denied.

A few days later, on November 29, the city fire department inspected the premises and then issued a certificate of occupancy the next day, which the operator posted on the premises.

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Thereafter, on December 3, 2012, the city representatives arrived, with the local Fox station in tow, and issues violation notices, stating the store must close. The store stayed open and the city continued to issue violation notices.

A few more days later, on December 6, 2010, the city issued a incorrect notice that the store was not properly registered in Missouri, which it was, and instructed it to resubmit an application. The problem was, there was now a moratorium in effect on business licenses.

The city then finally adopted its SOB ordinance on December 20, 2010.

The store was able to obtain an occupancy permit, but not a business license. This meant no build-out and the store could only use about 1/5th of its area. It could also not obtain water or sewage service.

The store then filed suit. The court held a preliminary injunction hearing and issued an order finding the store needed a merchants license to open and operate. Rather than invalidating that provision for the store facially or as applied, the court ruled that the store was entitled to a hearing and ordered the city to provide one.

A kangaroo court was thus convened. The hearing was conducted in a public city council hearing style, with public comment. After the hearing, the city council went into closed session and denied the permit without and stated reasons or findings.

At the bench trial, the city’s Mayor John Knobloch and Manager Happy Welch testified. The mayor testified the use was inconsistent with the City’s master plan, but no master plan was ever produced for that period of thim. The Mayor further testified that when the store submitted its application and SOB Ordinance was in the works. However, he later admitted by “in the works” he meant that it had be discussed by city officials. The ordinance was first mentioned at a meeting on December 6 and introduced, read, and passed at a December 20, 2010 meeting.

Not surprisingly, the Court found City’s ordinances and conduct amounted to a prior restraint stating: “The city has exemplified the imposition of a ‘prior restraint’ found repugnant in our constitutional form of law.” Id. at *12. The moratorium was also deemed to be a prior restraint.

The enactment of City ordinance 1244 was also deemed a content based restriction on First Amendment activity in light of its timing and the surrounding circumstances.

The court then turned to Plaintiffs alternative avenue claims. The court started out with the statement that it was clear that no live entertainment or on-premises consumption was to occur at the store.

It began its analysis by looking to the Delaware Supreme Court’s 1987 decision in Richardson v. Wile, 535 A.2d 1346 (Del. 1987), finding that general video rental stores which also carry some adult fare are not likely to cause the secondary effects associated with other adult uses.

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The court next looked to World Wide Video v. City of Tukwilla, 816 P.2d 18 (WA 1991), where the Washington Supreme Court found that the city had not justified take home businesses have the same secondary effects traditionally associated with adult movie theatres and peep shows.

The Court next analyzed the first of the Encore Videos (v. City of San Antonio, 310 F.3d 812 (5th Cir. 2002) decisions, which found World Wide Video persuasive and found that an ordinance which placed a restriction on businesses carrying less than 10% of more of adult materials was likely to apply to a mainstream businesses. This violates the principle “that government ‘may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goal.” Id. at *16 (citing Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). The court also finds that it violates the “no greater than necessary” standards set forth by Kennedy in Alameda Books. The court then looks to DiMa, Inc., v. High Forest Twp., 2003 WL 21909571 (D. Minn. 2003) (issue of fact as to whether take- home businesses cause secondary effects).

Turning, to the evidence proffered by the city, the Court appeared puzzled. The city relied upon a Hearing on the Brain Science behind Pornography Addiction and the Effects of Addition on Families and Communities present to a Senate subcommittee. The court found that the asserted effects of pornography one the brain doe not amount to legally cognizable secondary effects.

The court then closed its review of the case by quoting the Supreme Court’s decision in Cohen v. California, 403 U.S. 15, 21 (1971) that:

Our precedents teach these principles. Where the designed benefit of a content- based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expect to protect our own sensibilities simply by averting [our eyes].

2302 N. Truman, 2012 WL 6705868 at *17.

The court then rejected a recent decision (O’Cello v. Koster, (Mo 2011)) upholding the 30% threshold state law as not supportive of the 10% threshold adopted by the city. The court was clear to point out that:

“merely mimicking” an ordinance upheld elsewhere is not enough. . . . Every piece of legislation requires the Court: “. . . to examine the strength and legitimacy of the governmental interest behind the ordinance and the precision with which the ordinance is drawn. Unless the ordinance advances significant governmental interests and accomplishes such advance without undue restraint of speech, the ordinance is invalid.

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2302 N. Truman, 2012 WL 6705868 at *18 (citing Basiardanes v. City of Galveston, 682 F2d 1203, 1213 (5th Cir. 1982) (citing Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981))).

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Mall Real Estate, LLC v. City of Hamburg, 818 N.W.2d 190 (Iowa 2012).

Plaintiffs are represented by FALA’s own Andrew McCullough.

This case does not engage in a time, place and manner discussion, but rather a preemption discussion. Still, the court’s analysis interesting.

At issue is whether the City of Hamburgs comprehensive regulation of adult businesses is preempted by a state law (Iowa Code § 728.5), which prohibits nudity except at theatres. A further provision of the law, Iowa Code § 728.11, provides that:

In order for uniform application of this chapter relating to obscene material applicable to minors within this state, … no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials. . . . Nothing in this section shall restrict the zoning authority of cities and counties.

The first question was whether the statute, by its terms, was only limited to obscene materials aimed at minors. The Court looked to its previous decision, where, relying on U.S. Supreme Court precedent on a statute prohibiting the mailing of obscene materials), the Iowa Supreme Court found that the similar language in the predecessor to Iowa Code § 728.22, § 725.9 was not restricted to obscene materials immediately aimed at minors.

Oddly, the Court finds that the city certainly intended to regulate obscene materials since the preambles to the comprehensive ordinance state that it is neither the city’s intent or effect to limit access to sexually oriented materials protected by the First Amendment.

As to whether the state law applied to nude dancing, the court pointed out that restrictions on nude dancing were categorized under “obscenity,” which has not been changed despite the ordinance having been modified thrice.

The Court then looks to see if live nude dancing can fall under the language used, which regulates obscene material. In order to go beyond the plain language of the statute the Court states that it needs to find and ambiguity. The Court then finds it is ambiguous as to whether material means physical materials, such as media, or material like a comedian may have material.

Then to resolve the ambiguity, the court finds that holding that “material” does not include live nude dancing would lead to an absurd result. That is, there is no doubt that martial, by its express definitions, includes motion pictures. It could not have been the Legislature’s intent that an act deemed unlawful to be presented by motion picture became lawful when demonstrated in person.

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The Court determines that this holding is consistent with the doctrine of constitutional avoidance. Although it is also true that statutes are interpreted to in a manner to invalidation through preemption. However, it concludes that when constitutional avoidance and preemption avoidance are both implicated and opposed to one another, it is constitutional avoidance that prevails.

Therefore the Court ultimately concludes that Hamburg’s comprehensive regulatory ordinance attempts to regulate in an area the state reserves for its own exclusive regulation and declare the ordinance invalid through preemption by state law.

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Just for fun:

Coleman v. City of Mesa, 230 Ariz. 352 (Ariz 2012).

The Arizona Supreme Court held that tattoo parlors are protected by the First Amendment and that the trial court erred by dismissing plaintiffs’ complaint that the denial of a permit violated their free speech rights.

The Mesa City Code requires tattoo parlors and other delineated businesses to obtain a Council Use Permit (CUP) in order to open and operate. The Colemans applied to the City Council for a CUP. The City’s planning and zoning board recommended the license for approval, but the City Council voted 6-1 to deny the license.

The Colemans then sued the City, alleging that the denial violated their rights of free speech, due process, and equal protection under the federal and Arizona constitutions.

The trial court dismissed the compliant, finding the City’s denial to be a “reasonable and rational regulation of land use.”

The court of appeals reversed, holding the proposed activity to be pure speech. The Supreme Court granted the City’s request for review, finding the free speech rights of tattoo artists to be an important issue of first impression in the state.

The City initially argues that it doesn’t matter if the business enjoys First Amendment protection, because it is simply a law a general applicability. The Court rejects this argument states that the City’s unfettered discretion to deny other non-protected uses did not give it the ability similarly deny protected uses. Still the court approaches the regulation as a time place and manner restriction under Thomas v. Chicago Park District, 534 U.S. 316 (2002).

The Court next identified that the court’s are split on the issue of whether tattooing is protected activity, and if so, whether it is pure speech or conduct with an expressive componenet. For example, in a case out of the Northern District of Illinois, Hold Fast Tattoo, LLC v. City of North Chicago, 580 F.Supp.2d 656, 660 (N.D.Ill. 2008) (Wayne Giampietro), the court compared the tattoo artist to the sound truck in R.A.V. v. St. Paul, 505 U.S. 377, 386 (1992), in that is was a mode of speech used to convey speech, but not speech itself.

However, the Arizona Supreme Court agreed with the line of cases, epitomized by a ninth circuit decision, Anderson v. city of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010), that the act of given a tattoo, receiving a tattoo, and “engaging in the business of tattooing” are purely expressive activity protected by the First Amendment.

The Court identifies that tattoos may be words, symbols, or abstract designs. The tattoo may be political, religious, or decorative. And, in any event, an important part of tattooing is that the marks are applied permanently to the human skin. Thus, not only does tattoo not lose protection simply because it is applied to skin, the application to the skin is an important part of

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the expression, which allows the person to express themselves by permanently displaying the mark.

Having found tattooing to be expressing, the court then turns to the question of whether the permit system for tattoo businesses is constitutional. Under Thomas, the court notes that, at a minimum, the system must not be content-based, must be narrowly tailored, and must leave open able alternative avenues. Since the issue before it was only the dismissal of the complaint, the court examines the pleadings, finds the Coleman’s have stated a claim, makes no finding as to the constitutionality of the permit process itself, and remands for further action.

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