727 F.3d 839
8th Cir.2013Background
- Florence, MN (population ~39) enacted zoning ordinances (2008) designating the entire city R-1 (residential) and prohibiting “sexually-oriented businesses” within 250 feet of residences, parks, schools, etc., and restricting such businesses to C-2 zones.
- Dale Peterson opened The Juice Bar (adult entertainment with live nude dancers) in December 2010 and was cited for violating the 250-foot restriction; criminal charges were continued pending civil litigation.
- Peterson and The Juice Bar sued the City seeking declaratory and injunctive relief; Florence later repealed the specific adult-business proximity ordinance (2011-09) and removed B-1/C-2 classifications (2011-02), keeping the city zoned residential.
- The district court granted summary judgment for Florence, concluding the zoning is a content-neutral time, place, and manner regulation narrowly tailored to substantial interests and leaves ample alternatives; Peterson appealed.
- The Eighth Circuit affirmed, holding the citywide residential zoning is content neutral, serves substantial governmental interests (preserving residential character, limited infrastructure), is narrowly tailored, and reasonable alternative locations exist in Lyon County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Florence’s zoning is an invalid total ban on adult businesses | Peterson: zoning effectively bans adult businesses in Florence, amounting to a total ban on protected expression | Florence: zoning bans all commercial uses, not targeted at adult expression; not a content-based total ban | Court: Not a total ban on adult expression; ban applies to all commercial uses and is content neutral |
| Whether the ordinances are content-based (requiring strict scrutiny) | Peterson: Ordinance targets sexually-oriented businesses and is content-based | Florence: Ordinances regulate land use for nonexpressive reasons; any effect on adult businesses is incidental | Court: Ordinances are content-neutral (serve purposes unrelated to expression) and subject to intermediate scrutiny |
| Whether the zoning survives intermediate scrutiny (time, place, manner) | Peterson: Zoning is not narrowly tailored and denies reasonable alternative channels | Florence: Ordinance is narrowly tailored to preserve residential character and county-level alternatives exist | Court: Ordinance is narrowly tailored to substantial interests and reasonable alternative locations exist in Lyon County; upheld |
Key Cases Cited
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content-based restrictions on speech are presumptively invalid)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (distinction between content-based and content-neutral regulations)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (land-use regulation of adult theaters as content-neutral time, place, manner restriction)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (standard for evaluating content-neutral time, place, and manner restrictions)
- United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) (strict scrutiny for content-based speech regulations)
- Young v. Am. Mini Theatres, Inc., 427 U.S. 50 (1976) (municipal interest in preserving urban residential character is substantial)
- Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (availability of alternative locations outside municipality may bear on First Amendment analysis)
- Excalibur Grp., Inc. v. City of Minneapolis, 116 F.3d 1216 (8th Cir. 1997) (narrow tailoring test for time, place, manner regulations)
- Holmberg v. City of Ramsey, 12 F.3d 140 (8th Cir. 1993) (ordinances serving nonexpressive purposes are neutral even if they incidentally affect sexually oriented businesses)
- Alexander v. City of Minneapolis, 928 F.2d 278 (8th Cir. 1991) (access to a modest percentage of commercial land can satisfy reasonable alternative channels requirement)