Potential Client: So anyway, after adding the hot butter (and up-sizing to an extra-large fountain soda), the bill was, like, huge! 

Lawyer: Yes. And your point?

Potential Client: Do I have a case?

Lawyer: No.

Oh wait. That’s how the conversation should have gone.

Radio Iowa reports here that the Iowa Court of Appeals‘ decision will stand:

The Chorus Line is located near Dr. John’s, an adult store. But Davenport, in an attempt to prevent red-light districts, restricts adjacent adult businesses and refused to give the Chorus Line a license when a new owner wanted to reopen it. The problem is, the city had licensed Dr. John’s as a retail boutique, not as an adult store.

Not content, the city urged the Supreme Court of Iowa to hear the case. Earlier this week the supreme court politely declined the city’s request.

I doubt that the voters will oust the justices over this one.

But don’t tell that to a group known as “Ethereal Enigmatic Euphoric Movement towards Civilized Hedonism, LTD.” That group sued the State of Idaho in federal court:

The Complaint alleges that Plaintiff is an organization comprised of individuals who believe that the “consumption of distilled spirits is both [a] moral obligation and sacred right.” It further alleges that, using Idaho’s local-option law, the City of Preston enacted a prohibition on the sale of liquor by the drink, and that this prohibition violates the rights of Plaintiff’s members to freely exercise their religion and discriminates against them because of their religious beliefs. Apparently, Plaintiff holds its services on the premises of the Owl Club, a local beer and wine saloon operating in Preston, which does not sell distilled spirits pursuant to the city’s prohibition. The Complaint seeks injunctive relief against the State of Idaho under the Free Exercise Clause of the First Amendment and under the Twenty-First Amendment pursuant to 42 U.S.C. § 1983, under Title II, and under state law.

Here is the order kicking the group’s case out of court.

No matter what I might have mumbled from the fraternity rooftop while in college, drinking liquor is not a moral obligation (or even a sacred right). And it’s certainly not something that you should do when drafting and prosecuting a federal lawsuit.

First, there’s this article (by Demorris A. Lee) appearing online in today’s St. Petersburg Times. It begins:

A federal judge’s ruling on whether the constitutional rights of a Pinellas County sweepstakes cafe owner were violated when deputies shut down her business could affect efforts to press criminal charges against sweepstakes cafe owners for operating gambling establishments.

You can read the complaint. Though I’m sympathetic to the constitutional claims, I doubt that the plaintiffs will obtain injunctive relief at this stage. Federal courts are ultra-sensitive to state law-enforcement efforts. But hey. I’ve been wrong before.

Second, there’s this article, entitled “Carrying guns in bars to become legal on Friday,” appearing at Cincinnati.com. Under the State of Ohio’s revised statute, people are no longer prohibited from carrying their concealed firearms into roughly 17,000 facilities where alcohol is served and consumed. What could possibly go wrong?

Some residents, police and business owners worry about the new law that allows guns in liquor establishments. But a state lawmaker and gun-rights advocates assert that, as long as gun owners abide by the law, they anticipate few, if any, problems. [The italics are mine.]

That, my friends, is called circular logic. And I’m using the term “logic” loosely.

One early Saturday morning, Ian Grady was cited by a county police officer for violating Athens-Clarke County Ordinance § 3-5-24(c)(2)(a), which prohibits noise from “mechanical sound-making devices” or from a party that is “plainly audible” 100 feet away from a person’s property limits between midnight and 7:00 a.m. on Saturday and Sunday. (Ian was hosting party.) Although there were no noise complaints about Ian’s party, the officer was patrolling the area and heard loud music from over 170 feet away. Case closed, kinda. 

Appealing from his conviction, Ian launched an assault on the noise ordinance under the Georgia Constitution’s guarantee of free speech (Ga. Const. art. I, § I, para. V). He lost. One thing that strikes me about this opinion is the Georgia Supreme Court’s discussion about how or why (or even if) Georgia’s Constitution really does provide a greater degree of protection of speech than does the First Amendment. Yikes. That’s been the general understanding for about 20 years. Justice Nahmias, who’s a brilliant mind by all accounts, has a penchant for peeling the onion and shaking up some set notions.

I sure hope that Georgia’s free-speech jurisprudence has some earthquake-proof reasoning – I’m crying already.

In the article, Amos Bridges reports that the City of Springfield (MO) will defend a new ordinance that “prohibits alcohol sales at any movie theater where customers younger than 21 account for more than 25 percent of ticket sales.” Theaters that “have achieved … IRC section 501(c)(3) status” are expressly exempted from the ordinance, mind you. (Or should I say theatres.) Which is strange, given that the City is defending the ordinance at least in part because it’s just too dark in theaters for “intoxicating liquor.”

The ostensible target of the ordinance, Campbell 16 Cine’, has challenged the ordinance in state court. [Source] In defense to the lawsuit, the City has plead that the plaintiff “shows movies containing material not allowed to be shown on the premises of licensed entities selling intoxicating liquor.” I’ve got three words: O-ver-breadth. I like the theater’s chances. The ordinance is poorly drafted, and, I dare say, invalid six ways from Sunday.

I’ll bet that you can tote a gun in the City’s theaters — even in those theaters that pay federal taxes.

A little background. Once upon a time, in early 2005, there was a plot of “land at the southwest corner of the intersection of highways I-65 and State Road 250 in an unincorporated area [that] was developed — with a building, driveway, and signage for ‘a tenant’ constructed as authorized by permits from Jackson County.” Sound like a good spot for an adult bookstore? It presumably was, at least then, a legal spot for one.

Then, on August 16, 2005, the Jackson County Board of Commissioners adopted Ordinance 2005-5, titled “Sexually Oriented Business Ordinance.” The ordinance stated that its purpose was to “regulate sexually oriented businesses [i.e., SOBs] in order to promote the health, safety and general welfare of the citizens of Jackson County, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within unincorporated areas of Jackson County.” As the court of appeals observed, “[t]he operative effect of the ordinance was to prohibit a sexually oriented business from operating within 1,000 feet of a residence….”

What ensued was a game of cat and mouse. The county said that the SOB ordinance was effective upon adoption, August 16, “except for the provision establishing a fine for violation of the ordinance — which would not become effective until September 1, 2005, after publication of the ordinance in two successive weekly editions of the local newspaper.” The adult bookstore (Lion’s Den) didn’t see it that way. So just three days later, on August 19, “on the improved property at the intersection of I-65 and State Road 250, Lion’s Den opened as an adult bookstore and sexual device shop. Lion’s Den was within 1,000 feet of a residence, and it had obtained no license to operate a sexually oriented business.”

The county then (a) sued Lion’s Den, (b) amended its SOB ordinance, (c) amended its lawsuit against Lion’s Den, (d) amended its zoning ordinances to cover SOBs, and (e) sued Lion’s Den again for violating all these ordinances.

The court of appeals ruled for the county across the board.

Lion’s Den had argued that the 2005 SOB ordinance were not properly adopted because they were, functionally, zoning — not licensing — ordinances and therefore subject to statutory notice requirements that the county did not follow when adopting them. The court rejected the argument, noting that the county had “broad home rule authority to ‘regulate conduct … that might endanger the public health….’”

From there the court of appeals rejected Lion’s Den’s arguments concerning (a) grandfathering, (b) narrow tailoring, and (c) overbreadth. In rejecting the grandfathering argument, the court of appeals relied primarily on a 1914 case from the Indiana Supreme Court. And in rejecting the latter two arguments, I believe, the court relied on a body of caselaw that examines zoning ordinances. Hmmm. I sense this ain’t over.

Whatever feelings you might harbor on the subject, it’s easy to tell that the case (and appeal) was expertly litigated by both sides.

The flyer begins by stating, “[i]t is important to remember the application of body art, including symbols commonly associated with extremist ideology, may be an exercise of the right of free speech or expression.” It ends by stating “[i]t is important to remember that just because someone’s speech, actions, beliefs, appearance, or way of life is different; [sic] it does not mean that he or she is suspicious.” It’s what’s between these cautionary words that might raise a few eyebrows.

Tattoo parlors are advised to report any “suspicious behavior” or “requests” such as:

• People who “insist on paying with cash or use credit card(s) in different name(s)”
• People who “have missing hand/fingers, chemical burns, strange odors or bright colored stains on clothing”
• People who “make suspicious comments regarding anti-US, radical theology, vague or cryptic warnings that suggest or appear to endorse violence in support of a cause”
• People or Groups who “make repeated returns with multiple individuals requesting identical tattoos”
• People or Groups who “inquire about unusual methods of tattooing or placement of tattoos which could allow the concealment of extremist symbols”

Paying with cash? Wearing clothes with bright colored stains? Individuals requesting identical tattoos? Really?

This reminds me of Dennis Miller’s stand-up show, where he suggested that the hardest job in the world had to be a bank guard in Alaska: “You’ve got 50 customers in the joint… they’re all wearing ski masks….” I can only hope the FBI doesn’t stake out a college campus’s go-to tattoo parlor just after Greek rush week. That would be a tough job.

I wonder if the gun shop owners got a flyer.

This case presents a typical fact pattern. A would-be adult nightclub applies to the city for a zoning permit. Upon learning more about the nightclub, the city’s zoning board decides that the proposed “use” is unacceptable for the zone. Here, it was the Athens City Board of Zoning Appeals who got somewhat sidetracked. As the court of appeals observed, one member of the Board “repeatedly referred to the ‘immorality’” of the proposed use, while another “member wrongly expressed the scope of the Board’s review as determining whether [the] business would be similar to ‘what’s currently in this … neighborhood.’” Yet another Board member deemed it the Board’s job to determine “what is appropriate for the community.”

The Board probably found itself in a pickle. The nightclub’s proposed use is permitted in the zone under the City’s ordinances, but (some of) the surrounding residents are none-too-happy. What to do? Apply the rule of law. Said the Ohio Court of Appeals: The Board’s concerns ”‘were concerns that should have been (and were, as of the 4-7-08 Code amendments) properly addressed by legislative action of City Council.’”

I’ve appeared before numerous boards on near-identical issues. As I see it, when a zoning board knows that it must approve the adult entertainment applicant, there’s an “easy out” to any concerns about a perceived endorsement of the adult business: Inform the opposing citizens that the legislature made the rules, and that the board is simply applying them faithfully. Not only is this the easy route, it’s the right thing to do.