Big Dipper Entertainment, LLC. v. City of Warren
| Decision Date | 17 September 2009 |
| Docket Number | Case No. 07-14716. |
| Citation | 658 F.Supp.2d 831 |
| Parties | BIG DIPPER ENTERTAINMENT, LLC. et al., Plaintiffs, v. CITY OF WARREN, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Jay A. Schwartz, Mary A. Mahoney, Susan L. Brown, Schwartz Law Firm, Farmington Hills, MI, for Plaintiffs.
Raechel M. Badalamenti, Robert S. Huth, Jr., Kirk and Huth, Clinton Township, MI, for Defendant.
This matter is currently before the Court on the parties' cross-motions for summary judgment. The parties have briefed the issues and the Court held a hearing on September 9, 2009. For the reasons set forth below, the Court shall grant summary judgment in favor of Defendant with respect to Plaintiffs' federal claims and the Court shall decline to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims.
On November 2, 2007, Plaintiffs Big Dipper Entertainment, L.L.C. ("Big Dipper") and Aquarius Investments, L.L.C. ("Aquarius") (collectively "Plaintiffs") filed this action against Defendant City of Warren (the "City of Warren" or "Defendant") on the basis of federal question jurisdiction. Plaintiffs' Complaint asserts the following five counts: "42 U.S.C. § 1983" (Count I); "Unlawful Creation of the Downtown Development Authority and/or Creation or Expansion of the Downtown District" (Count II); "Vested Right to Operate an SOBS on the Subject Property" (Count III); "Right to Issuance of an Official Address and Local Approval of a Liquor License and Topless Activity Permit" (Count IV); and "Declaratory and Injunctive Relief Entitlement to Use of Subject Property as a Restaurant/Bar Offering Entertainment by Semi-Nude Performers."
Count I, Plaintiffs' § 1983 claim, is the only federal claim in this action. The remaining claims are state law claims over which this Court may exercise supplemental jurisdiction.
The matter is currently before the Court on the parties' respective summary judgment motions.
Plaintiffs' Motion for Summary Judgment is brought with respect to Plaintiffs' federal claims only. The motion does not seek summary judgment with respect to any of the state law claims. In this motion, Plaintiffs ask the Court to grant summary judgment in their favor with respect to Count I and rule that: 1) the locational restrictions of the challenged ordinances are unconstitutional because they do not leave open adequate alternative avenues of expression; and 2) the SOB licensing ordinances, as applied by the City of Warren, are unconstitutional prior restraints on protected expression
Defendant's Motion for summary judgment seeks summary judgment in its favor with respect to all claims asserted by Plaintiffs.
This Court's practice guidelines for motions for summary judgment provide, in pertinent part, that:
a. The moving party's papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record . . .
b. In response, the opposing party shall file a separate document entitled Counter-Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant's statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts.
Both parties complied with the Court's practice guidelines such that: 1) the parties submitted a Joint Statement of Undisputed Material Facts (Docket Entry No. 62) ("Joint Stmt."); 2) Defendant filed its statement of material facts, which Plaintiffs responded to in writing; and 3) Plaintiffs filed their statement of material facts, which Defendants responded to in writing.
The following material facts are gleaned from the parties' statements and the evidence submitted by the parties.
For several years, the City of Warren has had in place a series of ordinances that relate to sexually oriented businesses ("SOBs"). These ordinances have been challenged in at least two prior actions in this district. See 15192 Thirteen Mile Road, Inc. v. City of Warren, 626 F.Supp. 803 (E.D.Mich.1985); Warren Gifts, LLC v. City of Warren, Case No. 02-70062.
In 15192 Thirteen Mile Road, Inc., the plaintiffs filed suit under § 1983 challenging the constitutionality of Warren Zoning Ordinance 14.02(C), which regulated the ability of adult businesses to locate within the City of Warren. At that time, Ordinance 14.02(C) "require[d]: 1) that adult businesses be located on a major thoroughfare, as designated in the Master Thoroughfare Plan; 2) that the proposal site be no closer than 500 feet to the property line of an area zoned residential or an existing residential use; and 3) that the proposed site be no closer than 1000 feet to the property line of another adult business, or to the property line of any church or school." Id. at 808-09. The City of Warren's ordinance was declared partly constitutional and party unconstitutional in 15192 Thirteen Mile Road, Inc. Specifically, the court struck down the provision prohibiting SOBs from locating on major thoroughfares as unconstitutional. The other locational restrictions, however, were found constitutional. In finding those restrictions constitutional, the court concluded the ordinance was aimed at controlling secondary effects of adult businesses and that the ordinances left adequate avenues of expression available.
In this case, Plaintiffs make two separate constitutional challenges. First, Plaintiffs claim that the locational restrictions of Section 14.01, prohibiting SOBs from locating in either "the Downtown District" or "within the Downtown Development District," are unconstitutional and violate the First Amendment because they do not leave open adequate alternative avenues of expression. Second, they claim that the SOB licensing ordinances, as applied by the City of Warren to Plaintiffs, are unconstitutional prior restraints on protected expression.
The minutes of a Warren City Council meeting held on October 11, 2005 reflect that the City Council discussed amending the ordinances for SOBs and include that:
Scott D. Bergthold stated that this would be a short supplement to the extensive discussion of June 10, 2005, in which amendments that would strengthen the Constitutionality of the code were discussed. There was previously a presentation before City Council on the extensive secondary effects data it received several months ago. Tonight, he would add affidavits from the police department and accompanying Michigan State Police department report outlining illicit sexual activity that has occurred in sexually oriented businesses. That was further evidence of the negative secondary effectives of adult uses. The language of the ordinance has been updated and strengthened. And it took into account recent cases such as those decided since June 10th of this year the 6th Circuit Court of Appeals, upon which the City of Warren relied in adopting this ordinance, including Cincinnati v. Union Township, which was decided by the full Court on June 21, 2005. More recent cases were also included.
. . . .
Mr. Bergthold stated that the questions showed that the colloquy, discussions, and the extensive review of secondary effects information reinforced the fact that City Council was intent on doing what was Constitutionally permissible and sound and also effective to address the negative secondary effects of adult businesses.
Councilwoman Moore stated that this Ordinance was a long time coming, and a great deal of hard work had gone into it.
Chairman Fouts stated that based on the expert witness and the City Attorney's Office, he would vote in favor of this.
Council woman Kamp and Councilwoman Moceri stated that they were in agreement with regard to the suggested amendments and they would be part of the motion.
(Ex. 2 to Def.'s Br.) A motion was then made to adopt the ordinance with the suggested amendments, and the motion carried unanimously. (Id.).
Thus, "[o]n October 11, 2005, Warren amended the location criteria for SOBs by enacting Ordinance 30-961, Section 14.01(s), which provides:
The site for the SOB business must be located more than 750 feet from the nearest lot line any of the following zoning districts: R-1-A, R-1-B, R-1-C, R-1-P, R-2, R-3, R-3-A, R-4, R-5, any mixed residential zone such as Planned Unit Development or the Downtown District. Defendant's Response Brief Exhibit I; See also Defendant's Motion for Summary Judgment Exhibits 2 and 3.
(Joint Stmt. ¶ 8) (emphasis in original).
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