More importantly, the studies to which the City points concern adult businesses that offer live sex shows, private viewing booths, or both. This circuit’s decisions likewise concern live entertainment. See, e.g., R.V.S., L.L.C. v. Rockford, 361 F.3d 402 (7th Cir. 2004) (exotic-dancing nightclubs); G.M. Enterprises, Inc. v. St. Joseph, 350 F.3d 631 (7th Cir. 2003) (nude dancing in bars). Three of the four plaintiffs in this suit, however, do not offer live entertainment or private viewing. They are simple book or video outlets, brought under the regulatory umbrella only because 25% or more of their sales come from sex-related materials. Until the 2003 amendments, these stores were treated the same as Barnes & Noble or Blockbuster Video. If they were associated with significant crime or disorderly conduct, it should be easy for Indianapolis to show it. But the City has not offered an iota of evidence to that effect.

Nailed. Take in the opinion.

I’d recently been feeling guilty — read “sinful” — for my “hands un-free” driving. So much so that last week I went blue-tooth. (”I got blue teeth” just doesn’t sound right.) I wonder if the three amigas are panning today’s ruling on the road.

All feedback is welcome.

Earlier this year, I had the pleasure of joining Marc and Jennifer Kinsley on the legal panel for Adult Entertainment Expo 2009. A blast, I say! I spent that weekend ”people watching” — and, I confess, feeling quite vanilla about my look & lifestyle. 

But then again, the “baggy pants” laws could make me a rebel.

A city may withhold a CO if the business’s premises is unreasonably dangerous. Or perhaps if the land use is “incompatible” with the surrounding area or zoning district. But what can the City do if the business’s premises unreasonably places the employees in harm’s way? The answer might depend on who stands to profit.

On an unrelated note, the United States District Court for the Northern District of Texas dismissed the heart of this matter on standing and ripeness grounds.

1. The project will be harmonious with and in accordance with the Land Use Plan of the Township.

2. The project will be harmonious with and in accordance with the general intent and purposes of this Ordinance.

…

6. The project will not involve uses, activities, processes, materials and equipment or conditions of operation that will be detrimental to any person, property or general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors.

7. The project will not create excessive additional requirements at public cost for public facilities and services.

(Majority Op. at 2-3). Yikes.

Alcatraz is the only adult club in Erie (population 5,000 or so), and it attempted to move its operation to another site in a C-2 zone. The problem for Alcatraz was that its proposed site was within 1,200 feet of a residential area; it needed an amendment to the zoning ordinance for the move.  Alcatraz saw the writing on the wall and sued.  And lost. And on this appeal the majority reasons that, because Alcatraz has an existing, grandfathered site, the business cannot claim a “suppression of speech” because “once it is shown that the plaintiffs’ rights to engage in the protected speech are not infringed, there can be no First Amendment violation. The First Amendment is not violated when the government allows the protected speech to occur, even if not in the desired locale.” (internal citation omitted).

The dissent has the better argument (IMHO):

[I]n my view, the central issue presented is not whether Truckor’s ability to operate an adult establishment on Telegraph Road fulfills his First Amendment rights. Rather, the appropriate inquiry is whether Erie Township’s zoning ordinance satisfies constitutional requirements. Plaintiffs have mounted a facial challenge to the constitutionality of the ordinance. A facial challenge is one that attacks the very existence or enactment of the ordinance; it alleges that the mere existence and threatened enforcement of the ordinance adversely affects all property regulated in the market as opposed to a particular parcel.

Dissenting Op. at 2 (internal quotation marks and citation omitted).

A couple of quirks to the Majority’s opinion. One, it suggested that Alcatraz overlooked a meritorious equal-protection challenge to the near-total ban on a recognized, lawful use. Hmmm.

Two, the court noted that Alcatraz “admitted” the ordinance was “content neutral,” rendering FW/PBS’s holding inapplicable. This one baffles me. Whether you call it an admission, a concession, or a lack of precision, Alcatraz’s words are just words; the ordinance is what it is. Alcatraz cannot make a content-neutral law content-based any more than it can make a content-based law content-neutral. The court’s job, I believe, is to call the law what it is. I’m reminded of that oft-pondered question about whether the bumblebee can fly.

Well, can it?

Read the decision.

The central issue in this appeal concerns the constitutionality of a zoning ordinance adopted by the Township of Cinnaminson that restricts the location where commercial establishments that sell adult videos and novelty items can operate. The trial court rejected defendants’ constitutional challenge, finding that the ordinance constituted a reasonable time, place, and manner restriction, was content neutral, and served a substantial governmental interest while allowing reasonable alternative avenues of communication.

We reverse. We hold that the trial court misapplied the holding in Hamilton Amusement Center v. Verniero, 156 N.J. 254, 716 A.2d 1137 (1998), when it relied on a generalized notion of ‘common sense’ to find that the ordinance served a substantial governmental interest. Although evidence of a substantial governmental interest need not be based on empirical studies, such evidence must nevertheless provide a rational, objective basis from which to ascertain the existence of a substantial governmental interest underpinning the legislation.

You can read the opinion from the Superior Court of New Jersey (Appellate Division) for the rest.

As is often the case, the court gutted the “class of one” equal protection claim on the “similarly situated” prong. “LaBella claim[ed] that Defendants treated it differently than other similarly situated restaurants in Winnetka by selectively enforcing Village ordinances and building codes against LaBella, but not against the “Friends of Doug” restaurants.” (footnote omitted). But LaBella failed to make a prima facie showing that any restaurant was operating in the same condition as it was.

LaBella also claimed that it was denied due process because the Village failed to send the renewal forms needed for its annual liquor license. Snake eyes:

While Winnetka licensees have a property interest in the renewal of their licenses, it does not necessarily follow that Winnetka licensees have a property interest in having the Village send them renewal forms. LaBella does not allege that Defendants took adverse action on its renewal form after refusing to allow LaBella the opportunity to participate in the decisionmaking process. Instead, LaBella claims that its constitutional deprivation occurred when it did not receive its renewal form in the mail. Unlike in Club Misty or Killinger, LaBella’s claims do not relate to the decisionmaking process that led to an ultimate decision on its license. While LaBella has provided legal support for its contention that it had a protectable property interest in the renewalof its licenses, it has provided no support for its contention that it had a protectable property interest in receiving renewal forms from the Village.

Slip Opinion at 14 (all emphasis in original).

The court noted that “even if LaBella did allege a deprivation of a protected interest, because it has alleged that Defendants engaged in random and unauthorized acts of canceling its licenses in order to benefit the ‘Friends of Doug’ restaurants, to comply with the requirements of due process, a state only needs to provide an adequate postdeprivation remedy.” (citation omitted).

LaBella probably isn’t happy. At least it got a thorough, well-reasoned (and correct, IMHO) analysis from court.

In 2001, plaintiff, Pooh-Bah Enterprises, Inc., brought suit, in the circuit court of Cook County, for declaratory and injunctive relief against the County. In its complaint, plaintiff alleged that it operates an establishment under the licensed name “Crazy Horse Too.” The seating capacity of plaintiff’s establishment is less than 750 persons. At the establishment, scantily clad (but not completely nude) women give live performances of exotic dancing. Plaintiff stated that it had claimed the small venue exemption because the live performances at its establishment qualify as being “live theatrical, live musical, or other live cultural performances.” Plaintiff claimed that its entertainment qualified either as “modern or traditional dance” or “other live cultural performances.” The County denied plaintiff the exemption on the basis that the dance performances are “performances conducted at adult entertainment cabarets.” Plaintiff conceded that its dancers display “specified anatomical areas” as defined in the zoning ordinance. Plaintiff argued that the amusement tax ordinance violated the first and fourteenth amendments to the United States Constitution because it discriminated on the basis of content.

The opening paragraph of the opinion gives away the ending: “At issue is whether the small venue exemptions to the amusement tax ordinances of defendants Cook County and the City of Chicago violate the first amendment to the United States Constitution (U.S. Const., amend. I) or the free speech clause of the Illinois Constitution (Ill. Const. 1970, art. I, §4). We hold that they do not.”