The Federal District Court for the District of North Dakota last week denied a request for a preliminary injunction that would have forced the City of Fargo to allow a “premier adult toy retailer” to open a downtown location.
The case arose out of a zoning dispute between plaintiff “Romantix” and Fargo’s planning department. Romantix considered itself just another retailer eligible to locate downtown. City officials disagreed, saying that Romantix’s business of selling sexual devices instead made it an “adult bookstore,” which the City prohibits downtown, and that the City would not issue a change-of-use permit for a prohibited use.
Romantix sought a preliminary injunction to prevent Fargo from applying the definition of “adult bookstore” and prohibit the City from requiring a change-of-use permit. When it appeared likely the city would amend its code to clarify that Romantix’s sexual device sales were prohibited, Romantix sought to expedite proceedings to prevent its claims from becoming moot.
Romantix asserted several constitutional claims, among them that the definition of an “adult bookstore” was a content-based regulation of speech, that that term was unconstitutionally vague, that the city deprived Romantix of procedural due process, and that its zoning regulation amounted to a prior restraint or “zone out.”
The court disagreed in all respects. On the First Amendment component, the court noted controlling Eighth Circuit precedent holding that sexual device sales were not expressive activity implicating the First Amendment. Romantix had specifically stated that it didn’t intend to sell adult reading or video material, and the court could not discern any message the company intended to express that would trigger First Amendment protections.
On the void-for-vagueness claim, the Court concluded that a simple disagreement about interpretation did not make an ordinance void for vagueness, and that “adult bookstore” gave sufficient notice that a business like Romantix’s was prohibited.
On the procedural due process and prior restraint claims, the court also considered Romantix unlikely to succeed. The city had met with Romantix multiple times, and ultimately made a decision with which Romantix disagreed, but its decision was not irrational. On the “zone out” argument, the Court considered the city’s change-of-use permitting scheme one of general applicability, which gave officials little discretion to exclude disfavored businesses. Rather, it specified the process for permitting a different use—which had the effect, in this instance, of excluding Romantix from downtown Fargo.
Romantix-Fargo, Inc. v. City of Fargo, Case No. 3:22-cv-183. (D. N.D. December 22, 2022)