The Dallas Convention Center. Source: dallassports.org.

In October of this year, the Fifth Circuit Court of Appeals ruled that an operator of an adult entertainment convention called “Exxxotica” had standing to challenge the City of Dallas, Texas’s 2016 decision not to enter into a contract allowing the event. The appeals court’s decision reversed a prior ruling by the federal district court dismissing the case.

In 2015, Three Expo Events, L.L.C., held the Exxxotica event at the Dallas Convention Center. The event, which featured near-nudity and a variety of suggestive activities, caught the attention of community members who believed that the event was immoral. These protesters then asked Dallas’s mayor to prohibit a second annual convention, and the mayor obliged. In 2016, the city refused to renew the event’s contract, and the city council approved a resolution prohibiting the same. Three Expo Events then filed suit, alleging First Amendment violations.

Because the city council’s resolution only prohibited Three Expo Events, and not its subsidiary—which would have been the party to the convention center contract—the district court found that Three Expo Events lacked standing to challenge the city’s decision. Continue Reading Appeals Court Finds That Dallas Adult Convention Case Can Proceed

Michael Fowler, a resident of Ventura County, California, cultivated a garden on a portion of his agriculturally-zoned 40 acre property and began renting it out for wedding ceremonies and similar events with much success. However, due to changes to the County’s permit requirements, Mr. Fowler is now required to obtain a conditional use permit (CUP) before hosting any additional weddings on his estate.  With reservations already on his books, Mr. Fowler submitted the required application.  Officials tasked with reviewing his application found that the use would cause no adverse impacts and recommended granting the permit; however, after receiving complaints from neighbors, these same officials denied his application.  The Board of Supervisors upheld the denial on appeal.  This seemingly capricious denial forced Mr. Fowler to chose between breaking the law and dashing the dreams of couples who had already booked his venue by essentially cancelling their weddings.  Sensibly, he chose the latter “option,” resulting in at least one scathing review of his business and untold reputational harm.

Thwarted but not defeated, Continue Reading Ninth Circuit Rules Against Ventura County Conditional Use Permitting Scheme

Last week, a federal district court in Nevada ruled on the City of Reno’s motion to dismiss several claims brought against it by a billboard company and landowner relating to the placement of off-premises billboards in the city.

The plaintiffs in the case are a billboard company called Strict Scrutiny Media (which perhaps implies the type of judicial review that the company wanted, but did not get, in this case) and the Independent Order of Odd Fellows Reno Lodge #14.  SSM obtained billboard leases at three sites owned by the Oddfellows, constructed signs on all three locations, and obtained permits for the construction of one of the signs.  In late 2016, the city informed SSM and Oddfellows that the permitted sign’s permit was invalid due to the fact that it was issued to a different sign operator, and also informed Oddfellows that two other signs that had been installed by SSM and Oddfellows were constructed without a permit in violation of the city’s code.  Oddfellows and SSM then challenged the city’s action, and also challenged the city’s ban on the erection of new, permanent off-premises signs and the city’s exemptions to permit requirements for certain temporary or permanent on-premises signs. Continue Reading Court Allows First Amendment Claims to Move Forward in Reno Sign Code Case

Day laborers in Oyster Bay. Source: New York Times.

On Tuesday, the Second Circuit Court of Appeals ruled that the Town of Oyster Bay, New York’s prohibition on motor vehicle solicitation of employment violated the First Amendment.  The appellate court’s ruling affirms an earlier district court ruling that found similarly.  The plaintiffs in the case were two groups that advocate for the interests of day laborers.

Oyster Bay enacted an ordinance in 2009 that read, in relevant part, “It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.”  Oyster Bay’s ordinance was ostensibly an effort to curb day laborer solicitation. Continue Reading Second Circuit Affirms District Court Injunction Against Oyster Bay Solicitation Ordinance

One of International Outdoor’s billboards in the Detroit area. Source: International Outdoor.

Late last month, a federal court in Michigan granted in part and denied in part a motion to dismiss First Amendment claims filed by a billboard company, International Outdoor, against the City of Troy.  The billboard company claimed that Troy’s sign ordinance was content based and unconstitutional, and that it imposed an unconstitutional prior restraint.  The city moved to dismiss the plaintiff’s claims, and further argued that the billboard company lacked standing to bring the claims.

The court first reviewed the city’s challenge to International Outdoor’s standing, which asserted that International Outdoor failed to plead redressability.  In a short response, the court held that, because the challenge was a facial challenge to the entire sign ordinance, if the court were to strike down the entire ordinance, the plaintiff’s injury would be redressed. Continue Reading Billboard Company’s Challenge to Michigan Sign Code Survives Motion to Dismiss

Last week, the federal Ninth Circuit Court of Appeals ruled that a tattoo shop owner had standing to challenge Long Beach, California’s zoning regulations.  The regulations had the effect of precluding the owner from operating his business in Long Beach.

James Real, who owns a tattoo parlor in Huntington Beach, California, sought to open a tattoo parlor in Long Beach.  Long Beach’s zoning regulations do not allow tattoo parlors in most zoning districts in the city; require a conditional use permit for operation of a tattoo parlor; may not be located less than 1,000 feet from another tattoo shop, adult entertainment use, arcade, or tavern; and tattoo parlors’ business hours are strictly limited.  Real sought approval from the city to locate in one of three locations, but the city responded by informing Real that none of the locations allowed for a tattoo parlor.

Real filed suit under the First Amendment, alleging that his tattooing was First Amendment-protected activity, and that the city’s zoning regulations were not proper time, place, and manner regulations and constituted an unconstitutional prior restraint.  The district court held that Real did not have standing to challenge the zoning regulations because he had failed to apply for a conditional use permit. Continue Reading Ninth Circuit: Tattoo Parlor Owner Has Standing to Bring First Amendment Claims

This post was originally authored by Evan Seeman and Karla Chafee of Robinson + Cole, LLP.  Any views reflected in this post are the views of the original authors. 

hillside-sign

Thou shall have the right to an electronic sign?  Apparently not.  Just over a year ago, Hillside Baptist Church and Signs for Jesus (together, Plaintiffs or Church) filed a complaint in the District Court for New Hampshire, seeking a declaration that the Town of Pembroke’s (the Town) sign ordinance is unconstitutional both facially and as applied to the Plaintiffs.  The complaint alleged that the Town’s Ordinance banning the use of electronic signs in all but the Town’s commercial zoning district “restricts how the Church may proclaim a daily Biblical message while not restricting the medium of communicating state, municipal or school messages.”  Our post regarding the complaint is available here.

The Plaintiffs claimed that the Town’s limitation on electronic signs in all zones but the commercial zone, and the Town’s denial of the Church’s sign application violated its rights to Free Speech, Free Exercise of Religion, and Equal Protection, as well as RLUIPA’s substantial burden and equal terms provisions. Continue Reading RLUIPA Defense: Signs 4 JC Shown the Light by NH District Court

Earlier this month, the First Circuit Court of Appeals held that a group of abortion protesters did not have standing to challenge a New Hampshire buffer zone law.  The First Circuit’s decision affirmed a decision by the federal district court, which we reported on last summer.

The law in question prohibited protesters from entering within 25 feet of the entrance to a reproductive health care facility.  Following the U.S. Supreme Court’s decision in McCullen v. Coakley, enforcement of the New Hampshire law was stayed.  A group of protesters filed suit anyway, but the district court found that the plaintiffs had suffered no injury since the law had not been enforced and was not likely to be enforced against them.

The First Circuit agreed with the district court that, because injury was not imminent, the group of protesters lacked standing.  The appeals court also held that the challenge was not ripe, as the court could not meaningfully decide the case and there was no prejudice to the plaintiffs if they were required to wait until their claims ripen.

Reddy v. Foster, ___ F.3d ___, 2017 WL 104825 (1st Cir. Jan. 11, 2017).

Last month, a federal court held that a billboard company’s motion to revise the court’s earlier denial of summary judgment to a Pennsylvania township’s sign regulations was not ripe.

The billboard company, Nittany Outdoor Advertising, LLC, desired to post messages written by a non-profit organization, Stephanas Ministries, on billboards in College Township, Pennsylvania.  The township denied the request.  The billboard company filed suit in federal district court, challenging the township’s sign ordinance on First Amendment grounds, namely that the restrictions on sign area, height, and setback disfavored billboards and certain noncommercial messages.  During the pendency of the lawsuit, the township amended its sign regulations.  In 2014, the court granted in part and denied in part motions by the plaintiff for summary judgment and permanent injuctive relief.  The court specifically found that the plaintiffs lacked standing to bring claims against the pre-amendment sign ordinance and denied summary judgment with respect to the substantive challenge to the post-amendment ordinance.  The court did find, however, that the township’s permit requirement and variance procedures were unconstitutional prior restraints on speech.

The plaintiffs contended that the court’s 2014 decision was invalidated by the Supreme Court’s decision in Reed v. Town of Gilbert and filed a Motion to Revise the court’s earlier decision.  Since the local court rules required filing of a motion for reconsideration within 14 days after the order concerned, the court denied the Motion to Revise.  It remains to be seen whether the plaintiffs will file a new action challenging the township’s sign code.

Nittany Outdoor Advertising, LLC v. College Township, ___ F. Supp. 3d ___, 2016 WL 1393400 (M.D. Pa. Apr. 8, 2016).

Pictured above is Silk, a club owned by one of the plaintiffs in the case. Source: onmilwaukee.com

Before 2012, the City of Milwaukee, Wisconsin required strip clubs to obtain one of three business licenses: if the club included both alcohol and nudity, the club would require both a liquor license and a “tavern-amusement license”; a dry strip club required either a “theater license” or a “public-entertainment club license.” Continue Reading $435,000 Damage Award to Milwaukee Strip Club Upheld