Big Dipper Entertainment, L.L.C. v. City of Warren
641 F.3d 715
6th Cir.2011Background
- Big Dipper challenges Warren, Michigan, ordinances restricting location of sexually oriented businesses as amended in Oct 2005 and Mar 2006.
- Warren amended §14.01(s) to require sites be >750 feet from certain residential zones.
- A February 2006 amendment sought to bar S.O.B. within the Downtown Development District; a 24-day delay occurred in Big Dipper’s license rejection.
- Big Dipper filed suit under §1983 claiming First Amendment violation and improper prior restraint due to untimely licensing decision.
- District court granted Warren summary judgment; on appeal, the court evaluated constitutionality under secondary effects and the adequacy of available sites and review procedures.
- Dissent argues the licensing scheme is an unconstitutional prior restraint for lack of prompt judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §14.01(s) is a valid secondary-effects ordinance | Big Dipper argues not narrowly tailored/insufficient to serve substantial interest | Warren shows secondary effects justification and content-neutral aim | Yes; ordinance is content-neutral and serves substantial interest |
| Whether the amended sites available suffice for a reasonable opportunity | Only 39 sites (reduced to 27) remain; argue insufficient alternatives | 33+ sites feasible; market demand supports adequacy | Yes; 27 sites sufficient given five-year demand and no substantial shortage |
| Whether the licensing process violated the First Amendment as a prior restraint | Delay and lack of prompt judicial review unconstitutional | Procedural safeguards present; delay due to applicant’s actions; not a restraint | No; no prompt-judicial-review violation; district court proper to grant summary judgment |
Key Cases Cited
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (secondary effects, content-neutral zoning for adult businesses)
- Bronco’s Entertainment, Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440 (6th Cir. 2005) (addressed prompt judicial review and status-quo preservation)
- East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. 1995) (two procedural safeguards for constitutionality of licensing scheme)
- Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville and Davidson Cnty., 274 F.3d 377 (6th Cir. 2001) (prompt judicial review; burden on city; licensing as prior restraint)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (plurality on burden-shifting in licensing; discussion of Freedman factors)
- City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) (prompt judicial review; administrative and judicial review requirements)
- Richland Bookmart, Inc. v. Knox Cnty., 555 F.3d 512 (6th Cir. 2009) (affirmed prompt judicial review in licensing context)
- Odie v. Decatur County, 421 F.3d 386 (6th Cir. 2005) (prompt judicial review for licensing schemes)