Jon Jon's Inc v. City of Warren
332504
| Mich. Ct. App. | Oct 26, 2017Background
- Plaintiffs Jon Jon’s, Inc. and Warren Property Investments own property in Warren that historically operated as a strip club; local zoning (1986) made that use nonconforming and later ordinances (Article X, 2005 and amendments) regulated sexually oriented businesses and licensing.
- Plaintiffs obtained a variance in 2009 to expand, but the Zoning Board of Appeals revoked their nonconforming-use status in 2010, finding the structure had essentially been demolished and rebuilt.
- Article X forbids operation of sexually oriented businesses without a license, prohibits nudity (and restricts semi-nudity), bars alcoholic beverages at such businesses (after amendment), and contains a no-touching rule for semi-nude employees.
- Plaintiffs challenged the zoning ordinance and Article X on standing, overbreadth, vagueness, First Amendment (expression), due process (liquor license), and that the zoning left inadequate alternative locations.
- The trial court granted summary disposition for the City; on appeal the Court of Appeals reviewed de novo, treated the motion as MCR 2.116(C)(10), and affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge Article X | Plaintiffs can challenge because it is overbroad and affects expressive conduct | Article X’s application to plaintiffs is moot if zoning bars operation at the current site; overbreadth is the proper vehicle for standing | Court: Plaintiffs lack standing to challenge Article X beyond overbreadth; Article X challenges otherwise moot because zoning precludes operation at the existing site |
| Overbreadth / no-touching provision | No-touch rule is overbroad; could punish accidental contact by employees who regularly appear semi-nude | Ordinance prohibits only "knowingly or intentionally" touching, not accidental contact | Held: Not overbroad; mens rea limits (knowingly/intentionally) prevent overbreadth |
| Vagueness (terms like "lewdness"/"public indecency") | Terms are impermissibly vague and invite arbitrary enforcement | Those terms appear only in a preamble describing adverse secondary effects, not as operative prohibitions | Held: No justiciable vagueness problem because terms are in preamble/statement of purpose, not operative restrictions |
| First Amendment (nudity / semi-nudity restrictions) | Restrictions on semi-nudity and distance limits burden expressive conduct | Government may regulate secondary effects of adult entertainment; similar restrictions have been upheld | Held: Regulations are content-neutral time/place/manner style rules targeting secondary effects; upheld as constitutional |
| Due process / liquor-license interest | Eliminating alcohol exception deprives plaintiffs of vested property right in liquor license without due process | Plaintiffs retain the license; ordinance only limits service under certain circumstances and gov’t can change law | Held: No deprivation of property without due process; no right to continuation of prior regulatory regime |
| Adequate alternative channels / zoning availability | City’s site list may be inaccurate; many parcels may be unsuitable for economic or physical reasons | City planner’s affidavit identified over 100 whole or divisible parcels (51 whole, 59 divisible) adequate for adult businesses; plaintiffs offered no contrary evidence | Held: Ordinance leaves open adequate alternative locations; planner’s affidavit admissible and sufficient to show reasonable opportunity to operate |
Key Cases Cited
- Maiden v. Rozwood, 461 Mich. 109 (standards for summary disposition) (Michigan Supreme Court)
- Erie v. Pap’s A.M., 529 U.S. 277 (government may regulate secondary effects of adult entertainment) (U.S. Supreme Court)
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (location-based adult-business zoning and requirement to leave open reasonable alternative channels) (U.S. Supreme Court)
- Sensations, Inc. v. Grand Rapids, 526 F.3d 291 (upholding similar restrictions on semi-nudity/distance requirements) (6th Cir.)
- Bundo v. Walled Lake, 395 Mich. 679 (liquor license is a property interest) (Michigan Supreme Court)
- Van Buren Twp. v. Garter Belt, Inc., 258 Mich. App. 594 (no due-process right to continuation of existing law regarding liquor license) (Michigan Court of Appeals)
- Truckor v. Erie Twp., 283 Mich. App. 154 (standards for adequate alternative locations analysis) (Michigan Court of Appeals)
- Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (economic viability/suitability considerations for available sites) (9th Cir.)
- Klabunde v. Stanley, 384 Mich. 276 (distinguishing fact witnesses from expert testimony) (Michigan Supreme Court)
- Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (discussed regarding limits of data review; not controlling here) (6th Cir.)