This post written by Andrew LW Peters originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.
The Federal District Court for the District of North Dakota denied a request for a preliminary injunction that would have compelled the City of Fargo to allow a “major adult toy retailer” to open a downtown location.
The case arose from a zoning dispute between “Romantix” plaintiffs and Fargo’s planning department. Romantix considers itself to be just another retailer qualified to find downtown. City officials disagreed, saying that Romantix’s business selling sexual devices had instead turned it into an “adult bookstore”, which the City banned downtown, and that the City would not issue a change of use permit for prohibited uses.
Romantix requested a preliminary injunction to prevent Fargo from imposing the definition of an “adult bookstore” and bar the City from seeking change-of-use permission. When it looked as though the city might change its code to clarify that the sale of Romantix sexual devices was prohibited, Romantix attempted to expedite the process to prevent its claims from being challenged.
Romantix asserts several constitutional claims, among them that the definition of “adult bookstore” is a content-based speech regulation, that the term is not constitutionally clear, that the city revoked Romantix’s procedural due process, and that its zoning regulations amounted to previous restraints or “exit zones.” “.
The court disagreed on everything. On the First Amendment component, the court noted that the Eighth Circuit Control precedent held that the sale of sexual devices was not an expressive activity that the First Amendment involves. Romantix specifically stated that it did not intend to sell adult reading material or videos, and the court could not discern any message the company wished to express that would trigger First Amendment protections.
Over claims of obscurity, the Court concluded that simple disagreement over interpretation did not invalidate the rules due to obscurity, and that “adult bookstores” provided sufficient notice that businesses such as Romantix were outlawed.
On procedural legal proceedings and previous claims of restraint, the court also found Romantix unlikely to succeed. The city has met with Romantix several times, and finally made a decision that Romantix disapproved of, but his decision is not irrational. On the “zoning out” argument, the Court considers the town-use change permit scheme as one of common practice, which gives officials little leeway to exclude businesses they don’t like. Instead, it defines a process for allowing different uses — which has the effect, in this case, of excluding Romantix from downtown Fargo.
Romantix-Fargo, Inc. v. Fargo City, Case No. 3:22-cv-183. (DND December 22, 2022)