Franklin Jefferson, Ltd. v. City of Columbus

• Decision Date: 06 May 2002
• Docket Number: No. 2002-CV-0055.,2002-CV-0055.
• Citation: 211 F.Supp.2d 954
• Parties: FRANKLIN JEFFERSON LTD., et al., Plaintiffs, v. CITY OF COLUMBUS, Defendant.
• Court: U.S. District Court — Southern District of Ohio

211 F.Supp.2d 954

FRANKLIN JEFFERSON LTD., et al., Plaintiffs, v. CITY OF COLUMBUS, Defendant.

No. 2002-CV-0055.

United States District Court, S.D. Ohio, Eastern Division.

May 6, 2002.

J. Michael Murray, Berkman Gordon Murray & Devan, Cleveland, OH, for plaintiffs.

Keith Scott Mesirow, Patricia A. Delaney, Columbus city Attorney's Office, Columbus, OH, for defendants.

ORDER AND OPINION

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiffs' Motion for Preliminary Injunction filed on January 17, 2002. The Court conducted a Preliminary Injunction Hearing on April 11 and 12, 2002. For the following reasons, the Court GRANTS Plaintiffs' motion.

II. FACTS

Plaintiffs request a preliminary injunction to restrain the City of Columbus from enforcing an ordinance regulating adult businesses in the City. On July 30, 2001, the Columbus City Council enacted Ordinance 1425-01 ("the Ordinance"), requiring all future "adult entertainment establishments" and "adult stores" to be located in the City's manufacturing zones and at least one half mile from each other, residential areas, day care centers, schools, churches, and other community activities.¹ The Ordinance deleted previous sections of the City's zoning code that permitted adult businesses in "C-4" Commercial Districts, and now restricts them to "M" Manufacturing Districts.²

The Ordinance defines an "adult entertainment establishment" as:

an auditorium, bar, cabaret, concert hall, nightclub, restaurant, theater, or similar commercial establishment that recurrently features or provides one of more of the following:

1. Persons who appear in the nude³,

2. A live performance distinguished or characterized by an emphasis on the depiction, description, exposure, or representation of Specified anatomical areas or the conduct or simulation of Specified sexual activities, or

3. Audio or video displays, computer displays, films, motion pictures, slides, or other visual representations or recordings characterized or distinguished by an emphasis on the depiction, description, exposure, or representation of Specified anatomical areas, or the conduct or simulation of Specified sexual activities.

Similarly, the Ordinance defines an "adult store" as one or more of the following:

1. an establishment which has a majority of its shelf space or square footage devoted to the display, rental, sale, or viewing of adult material for any form of consideration.

2. An establishment with an Adult booth.

"Adult material" is defined as:

items consisting of one or more of the following:

1. Digital or printed books, magazines, periodicals, audio, video displays, computer displays, films, motion pictures, slides, or other visual representations or recordings that are characterized or distinguished by an emphasis on the depiction, description, exposure, or representation of Specified anatomical areas or the conduct or simulation of Specified sexual activities, or

2. Devices, instruments, novelties, or paraphernalia designed for use in connection with Specified sexual activities, or that depict or describe Specified anatomical areas.

Plaintiff Franklin Jefferson, Ltd. plans to sell and disseminate sexually oriented books, magazines, periodicals, and video-tapes on property it owns in the City, which is zoned C-4 Commercial. Franklin Jefferson seeks injunctive relief because the Ordinance prevents it from opening the planned adult store on its premises. Plaintiffs U.S. Four, Inc. d/b/a Dockside Dolls and Giavono Foods, Inc. d/b/a Sirens operate businesses in a C-4 Commercial zoning district, in which they present topless female dancing. Plaintiff N.I.R.A., Ltd., is Giavono Foods' landlord. These Plaintiffs seek a preliminary injunction because the new Ordinance prevents them from expanding or relocating their adult establishments, and may prohibit them from operating on their current premises.

III. Procedural History

Plaintiffs filed a Complaint for Declaratory Judgment, Preliminary Injunction, and Permanent Injunction on January 17, 2002. The Complaint contains six counts, alleging violations of the United States Constitution, the Ohio Constitution, the Columbus charter, and the laws of the City of Columbus. This Court has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3), 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 1367. On April 11 and 12, 2002, the Court conducted an evidentiary hearing at which live testimony was taken. Plaintiffs' representatives Michael Moran, Bruce Huhn, and Timothy Wright testified, along with city planning expert R. Bruce McLaughlin, for Plaintiffs. Defendant presented testimony from the City's chief zoning official, Elizabeth Clark.

IV. STANDARD OF REVIEW

In determining whether to issue a preliminary injunction, the Court must examine: (1) whether the movant has shown a strong likelihood of success on the merits; (2) the irreparable harm that could result to the movant if the injunction is not issued; (3) the possibility of substantial harm to others if the injunction is issued; and (4) whether the public interest would be served by issuing the injunction. Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions, 134 F.3d 749, 753 (6th Cir.1998). The elements are factors to be balanced against each other, but each element need not be satisfied to issue a preliminary injunction. Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1480 (6th Cir.1995) (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985)). A preliminary injunction is an extraordinary remedy which should only be granted if the movant carries his or her burden of proving that the circumstances clearly demand it. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000) (citations omitted). This Court will consider each of the elements to determine whether Plaintiffs have met their burden.

V. ANALYSIS

A. Likelihood of Success on the Merits

Plaintiffs argue that the Ordinance imposes an impermissible prior restraint against the dissemination of protected speech, in violation of their rights under the First and Fourteenth Amendments to the United States Constitution. They maintain that the Ordinance does not leave open alternative avenues of communication. Plaintiffs also contend that the Ordinance is not designed to further a substantial government interest, and that the City cannot establish that it considered evidence of harmful secondary effects from adult businesses when it enacted the law.

As a threshold consideration, the City of Columbus argues that Plaintiffs lack standing to assert an "as applied" constitutional claim, because their Complaint does not allege that the Ordinance has been enforced by the City at any time against Plaintiffs' interests. Defendant maintains that the Ordinance is not a prior restraint, but rather a content-neutral time, place, and manner regulation. The Ordinance, according to the City, was enacted based on evidence gleaned from numerous studies, reports, and the experiences of other municipalities in dealing with the effects of adult businesses. Defendant argues that it has a substantial interest in reducing such harmful secondary effects. The City contends that the Ordinance, read in its entirety, is narrowly tailored to serve this end. Finally, Defendant claims that the M Manufacturing District encompasses 15,401 of the City's 138,109 acres, thus leaving 4.33% of the Columbus area available for adult businesses.

1. Standing to Sue

As the Supreme Court has stated, "the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an `injury in fact'—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (footnote, citations, and internal quotation marks omitted).

The Court finds that Plaintiffs have standing to bring this suit and that this controversy is ripe for consideration. The evidence is unrefuted that all Plaintiffs have suffered injuries in fact. Franklin Jefferson was ordered to cease work on a new facility because of the new Ordinance. Michael Moran, the manager of Franklin Jefferson, testified that on April 10, 2002, his company received a Notice To Stop Work that the City of Columbus had issued for 4375 Roberts Road, where Plaintiff was planning to open an adult bookstore. The City's chief zoning official, Elizabeth Clark, testified that she revoked Franklin Jefferson's zoning clearance for this property because of the Ordinance.

Plaintiffs, U.S. Four, Giavono Foods, and N.I.R.A., also seek to safeguard their constitutional rights threatened by the Ordinance.⁴ Challenging the Ordinance on its face, they argue that the zoning law prevents them from relocating or expanding their existing adult establishments by failing to provide reasonable alternative avenues of communication. Similar issues of standing arose in Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir.1993). The plaintiffs in Topanga, also adult business operators, argued that enforcement of a zoning ordinance would deny the public access to the type of entertainment they sold. The Ninth Circuit determined, however, that "the crux of their argument is that the ordinance infringes upon their own First Amendment rights. They argue that [the ordinance] suppresses their protected speech by failing to provide them with reasonable alternative relocation sites for their businesses." Topanga, 989 F.2d at 1528. The Topanga court stated that "[b]ecause the Adult Businesses have standing to protect their personal First Amendment rights...