Romantix-Fargo, Inc. v. City of Fargo

Romantix-Fargo, Inc., Plaintiff, v. City of Fargo, North Dakota, and Nicole Crutchfield, in her official capacity as the Director of Planning and Development, Defendants.

No. 3:22-cv-183

United States District Court, D. North Dakota

December 22, 2022

ORDER

Peter D. Welte, Chief Judge

Before the Court is Plaintiff Romantix-Fargo, Inc.'s (“Romantix”) motion for a preliminary injunction. Doc. No. 10. On December 13, 2022, Romantix filed a motion for an emergency temporary restraining order (“TRO”) and a motion to expedite, essentially seeking to expedite a decision on the preliminary injunction motion. Doc. No. 21; Doc. No. 23. Romantix seeks a preliminary injunction and temporary restraining order against Defendants City of Fargo and Nicole Crutchfield, in her official capacity as the Director of Planning and Development (the “City”). The City opposes the motions. Doc. No. 17; Doc. No. 26. For the reasons below, the motions are denied.

I. BACKGROUND

This case involves a dispute over the location of Romantix's downtown Fargo location and certain zoning provisions in Fargo's Land Use Development Code (the “LUD Code”).^[1] Romantix is a “premier adult toy retailer”^[2] that operates at 417 Northern Pacific Avenue in downtown Fargo.

In June 2022, Romantix began taking steps (including entering into a lease agreement on June 10, 2022) to relocate to 74 North Broadway Drive, a different location in downtown Fargo. Doc No. 1, ¶ 59. The 74 North Broadway location is zoned Downtown Mixed Use (“DMU”) (id. ¶ 56) and is owned by Gill Investments, Ltd. (“Gill Investments”). Id. ¶ 30. Per the LUD Code, in a DMU zone, an “Adult Entertainment Center” use, which includes “an adult bookstore adult cinema or adult entertainment facility” uses, are not allowed, unless expressly allowed by other provisions of the LUD Code. Fargo, N.D., Mun. Code § 20-0401. On the other hand, “Retail Sales and Service” use is permitted by right in a DMU zone. Id.

On or about August 15, 2022, Gill Investments submitted a change of use application to the City, seeking to change the classification of the property to allow “Retail Sales and Service” use. Doc. No. 1 ¶ 60. After much back and forth, the City (via Crutchfield) denied the change of use application, deciding (at least according to Romantix) the “Adult Bookstore” definition applied to its proposed use at the 74 North Broadway location. Doc. No. 1-14. And because that use is prohibited in a DMU zone, the City denied Romantix's proposed use at the 74 North Broadway location. Id. Romantix, for its part, disagrees with the City's decision and appealed the decision through the appropriate administrative channels in compliance with the LUD Code.

After unsuccessfully appealing^[3] the change of use application decision, Romantix filed its complaint with this Court on October 26, 2022. Doc. No. 1. The complaint asserts five claims against the City-(1) a First Amendment challenge to “Adult Bookstore”; (2) a constitutional vagueness claim as to “Adult Bookstore” and “Adult Entertainment Center”; (3) a procedural due process claim as to the change of use application process; (4) a prior restraint/zone out claim as to the change of use application process; and, (5) an appeal from a decision of the Fargo City Commission under North Dakota Century Code section 28-34-01. Id.

Shortly after filing its case, Romantix filed a motion for preliminary injunction, specifically seeking “a preliminary injunction restraining the Defendant City of Fargo and its Planning Director from applying the definition of ‘Adult Bookstore' or the change of use permit requirement to its proposed operation and from requiring it to obtain a change of use permit prior to opening and operating upon the premises[.]” Doc. No. 11. The City opposes the motion for preliminary injunction (Doc. No. 17) and filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).^[4] Id.

Then, on December 13, 2022 (and before filing its reply as to the preliminary injunction and response to the motion to dismiss), Romantix filed this emergency motion for a TRO, effectively seeking to expedite and convert its motion for a preliminary injunction into an emergency motion for a TRO. Doc. No. 21. According to Romantix, an expedited TRO is necessary because the City has taken steps to amend the LUD Code to add a “Sexual Device Shop” provision, which would effectively moot Romantix's motion for a preliminary injunction. Id. The Court held a status conference with counsel on December 19, 2022 (Doc. No. 27), and neither party requested a hearing on the motions. Each motion has been comprehensively briefed and presents largely legal questions.

II. DISCUSSION

To start, Federal Rules of Civil Procedure 65(a) and (b) authorize a district court to enter preliminary injunctions and TROs. Preliminary injunctions and TROs are “extraordinary remed[ies] never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). When considering such remedies, the Court weighs the four factors set forth in Dataphase Systems, Inc., v. C L Systems, Inc., 640 F.2d 109 (8th Cir. 1981) (en banc). The Dataphase factors include: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Id. at 114. While no one factor is dispositive, likelihood of success on the merits is most important. Brady v. Nat'l Football League, 640 F.3d 785, 789 (8th Cir. 2011). The burden to demonstrate the necessity of a preliminary injunction and TRO rests with the movant. General Motors Corp. v. Harry Brown's, LLC, 563 F.3d 312, 316 (8th Cir. 2009).

A. Likelihood of Success on the Merits

In evaluating likelihood of success on the merits, a district court should “flexibly weigh the case's particular circumstances to determine ‘whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo.'” Calvin Klein Cosms. Corp. v. Lenox Lab'ys, Inc., 815 F.2d 500, 503 (8th Cir. 1987) (quoting Dataphase, 640 F.2d at 113). At this early stage, whether the movant will ultimately prevail is immaterial. PCTV Gold, Inc. v. SpeedNet, LLC, 508 F.3d 1137, 1143 (8th Cir. 2007). Instead, the movant need only show a “fair chance of prevailing.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc).

1. First Amendment

Turning first to Romantix's First Amendment challenge to “Adult Bookstore,” Romantix argues the definition is a content-based restriction on First Amendment activity and is presumptively unconstitutional. It further argues the definition is not supported by any compelling government interest. As to First Amendment claims, the Eighth Circuit Court of Appeals recently explained:

The First Amendment prohibits laws “abridging the freedom of speech.” U.S. Const. amend. I. Its protection extends beyond verbal and written statements to expressive conduct that is “sufficiently imbued with elements of communication.” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Such conduct includes “nude dancing, burning the American flag, flying an upsidedown American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, - U.S. -, 138 S.Ct. 1719, 1741-42 & n.1, 201 L.Ed.2d 35 (2018) (Thomas, J., concurring in part and in the judgment) (collecting cases).

Yet, not all conduct is “protected speech simply because the person engaging in [it] intends thereby to express an idea.” Masterpiece Cakeshop, 138 S.Ct. at 1742. A court “must first determine whether [the plaintiff's action] constituted expressive conduct.” Johnson, 491 U.S. at 403, 109 S.Ct. 2533. We ask “whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.” Id. at 404, 109 S.Ct. 2533. The party “desiring to engage in assertedly expressive conduct [must] demonstrate that the First Amendment even applies.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

Adam & Eve Jonesboro, LLC v. Perrin, 933 F.3d 951, 957 (8th Cir. 2019).

While Romantix frames the definition of “Adult Bookstore” as a content-based restriction on First Amendment activity, there is a threshold question of whether the First Amendment even applies here. The term “Adult Bookstore,” in isolation and on its face, could theoretically implicate expressive conduct, but focusing on the definition of “Adult Bookstore” is a misdirect. Rather, what matters is “whether [the plaintiff's action] constituted expressive conduct.” Id. If Romantix was intending to sell books, magazines, movies, or other media that has been recognized as expressive conduct, that may implicate the First Amendment. But as repeatedly emphasized by Romantix, it “does not intend to maintain or offer for sale upon the property any books, magazines, or periodicals” or “DVDs, Arcades, or Theaters” or “services.” Doc. No. 1 ¶¶ 34, 64.

The analysis then comes down to the question of whether selling sexual devices and other related adult novelties is speech. And on that question, Adam & Eve appears to control. Adam & Eve presents a fact pattern quite similar to the facts of this case. Adam & Eve Jonesboro, 933 F.3d 951. In analyzing the First Amendment claim in that case, the Eighth Circuit Court of Appeals...