Dаle Owen PETERSON; The Juice Bar, LLC, a Minnesota limited liability company, Plaintiffs-Appellants v. CITY OF FLORENCE, MINNESOTA, a Municipal corporation, Defendant-Appellee.
No. 12-3017
United States Court of Appeals, Eighth Circuit
Submitted: June 12, 2013. Filed: Aug. 16, 2013.
727 F.3d 839
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
James Francis Lester, argued, Fargo, ND, for appellant.
Before LOKEN, BRIGHT, and BYE, Circuit Judges.
Appellants Dale Peterson and The Juice Bar, LLC, an adult entertainment establishment operated by Peterson, filed suit against the City of Florence (“Florence“) alleging Florence‘s zoning scheme violated the First and Fourteenth Amendments.1 The district court2 grantеd summary judgment in favor of Florence, concluding the zoning scheme is a valid content-neutral, time, place and manner regulation. We affirm.
Florence is located within Lyon County, Minnesota. It has a population of 39 and is approximately .2 of a square mile. Florence contains sixteen single-family residences, a small shop used to store Florence‘s equipment, an unheated metal building operating as Florence‘s office, and a park.
In 2008, Florence adopted Ordinance Nos. 2008-03 and 2008-02. Ordinance No. 2008-03 prohibited the operation of a “sexually-oriented business” within 250 feet of any property zoned for rеsidential use, as well as day cares, schools, parks, and libraries. It also restricted such businesses to locations zoned “C-2.” Ordinance No. 2008-02 defines three zoning classifications: (1) “R-1 Single-Family Residential District;” (2) “B-1 Business District;” and (3) “C-2 Commercial District.” The ordinance also zoned all areas within Florence as “R-1.”
Peterson opened The Juice Bar in December 2010, which featured live, nude dancers. One day after opening, law еnforcement cited Peterson for operating a “sexually-oriented business” within 250 feet of a park. Under threat of arrest, Peterson closed The Juice Bar. Peterson was charged with three misdemeanоr violations of Ordinance No. 2008-03. Peterson notified the prosecutor of his plan to file suit to enjoin Florence from enforcing the zoning ordinance against sexually-oriented businesses. The prosecutor agreed to a continuance in the criminal case against Peterson pending resolution of the lawsuit.3
Peterson and The Juice Bar filed suit against Florence, seeking declaratory relief, injunctive relief, damages, and attorney‘s fees and costs. Shortly thereafter, Florence enacted Ordinance No. 2011-09, which repealed Ordinance No. 2008-03 in its entirety. Ordinance 2011-09 states, in relevant part, that Florence “desires to maintain [itself] solely as a residential community” due to its “limited infrastructure, staff, and resources,” which could not support business and commercial uses. Florence then enacted Ordinance Nо. 2011-02 which repealed the sections of Ordinance No. 2008-02 that established the “B-1” and “C-2” zoning classifications.
The district court granted Florence‘s motion for summary judgment and dismissed the suit with prejudice. The district court first conсluded that because the zoning ordinances are not aimed directly at sexually-oriented businesses, they are content-neutral and therefore subject to time, place and manner analysis. The district court then found the zoning ordinances are narrowly tailored to serve a
This court reviews a grant of summary judgment de novo. Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011). Summary judgment is appropriate where there are no genuine issuеs of material fact and the moving party is entitled to judgment as a matter of law.
Peterson makes several arguments on appeal, which we summarize. Peterson contends the zoning ordinances4 constitute an invalid total ban on the operation of adult entertainment businesses in Florence. Alternatively, Peterson contends the zoning ordinances are content-based and thus subject to strict scrutiny, or lastly, the zoning ordinances constitute an invalid time, place, and manner regulation which fails intermediate scrutiny. We address Peterson‘s arguments in turn.
“The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (internal citations omitted). A content-based regulation restricts speech because of its expressive content. See Turner Broad. Sys., Inc. v. FCC., 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). A content-neutral regulation is “justified without reference to the content of the regulated speech.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). A content-based regulation must satisfy strict scrutiny, United States v. Playboy Entm‘t Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), and is presumptively invalid, R.A.V., 505 U.S. at 382. A content-neutral regulation is subject to intermediate scrutiny. Turner Broad. Sys., 512 U.S. at 642.
By zoning the city entirely residential, Florence effectively prohibited an entire class of conduct—all commercial and business uses—not just conduct pertaining to adult entertainment. The zoning ordinances at issue do not target adult entertainment and its expressive content. To the extent Peterson contends the zoning ordinances affect only his business and no others, he merely identifies the kinds of “incidental effects” which the Supreme Court and this court have found permissible. Ward, 491 U.S. at 791; Holmberg v. City of Ramsey, 12 F.3d 140, 143 (8th Cir.1993) (“If the City‘s
A content-neutral time, place, or manner regulation will be upheld if it is narrowly tailored to serve a substantial governmental interest and leaves opеn ample alternative channels for communicating the speech. Ward, 491 U.S. at 791. An ordinance is narrowly tailored if it ” ‘promotes a substantial interest that would be achieved less effectively absent the regulation’ and the means chosen does not ‘burden substantially more speech than is necessary to further’ the city‘s content-neutral interest.” Excalibur Grp., Inc. v. City of Minneapolis, 116 F.3d 1216, 1221 (8th Cir.1997) (quoting Ward, 491 U.S. at 799).
Florence has articulated substantial interests. As stated, Ordinance No. 2008-02 was enacted, among other things, “to ensure public health, safety and general welfare ... to improve the quality of the physical environment of the city; to protect and maintain property values, and tо preserve and develop the economic base of the city.” The Supreme Court has instructed us not to take these asserted interests lightly. See Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (“[T]he city‘s interest in attempting to preserve the quality of urban life is one that must be accorded high respect.“). Further, Ordinance Nos. 2011-09 and 2011-02 state that Florence‘s limited infrastructure, staff, and resources restrict its ability to accommodate commercial or businеss establishments. Given Florence‘s small size and population, its desired interest would be achieved less effectively absent the regulation. Any incidental burden on speech from the zoning scheme is therefore no greater than necessary to furthering the interest in keeping Florence residential. As such, the zoning scheme is narrowly tailored to serve a substantial government interest.
Finally, we conclude that there еxists a reasonable alternative avenue in which Peterson may operate an adult entertainment business despite the zoning ordinances. The Supreme Court has left open the question whether, at least in the case of small municipalities, opportunities to engage in the restricted speech in neighboring communities may be relevant to determining the existence of adequate alternative channels. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 76-77, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); see Int‘l Eateries of Am., Inc. v. Broward County, 941 F.2d 1157, 1165 (11th Cir.1991) (looking to the availability of other areas in the county for the operation of adult entertainment businesses to determine whether reasonable alternative avenues of communicаtion exist), cert. denied, 503 U.S. 920, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992); Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 94, 98 (6th Cir.1981) (“It might be that the First Amendment burden would be rendered incidental if, for example, county-wide zoning were present to ensure that there were reasonable access to the protеcted activity in nearby areas.“)
While Peterson contests the validity of the zoning ordinance in Lyon County and the exact acreage which is zoned for adult entertainment uses, he does not dispute that there exist areas within the county for such use. Peterson‘s own expert, Bruce
We affirm.