No escaping this adult entertainment ordinance

A little over a week ago, the Michigan Court of Appeals issued this (majority) opinion. A divided court (2-1) affirmed that Erie Township did not violate the rights of Alcatraz Industries, Inc. by adopting an ordinance restricting adult entertainment establishments to C-2 zoning districts. Among other restrictions, the ordinance requires an adult business to obtain a “special land use permit” before gaining approval to operate. A sample of the land-use permit’s criteria:

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?

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