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Greektown v. City of Detroit – Adult Entertainment Prior Restraint Smackdown

The Eastern District of Michigan declared the adult use provisions of the Detroit Zoning Code unconstitutional because all adult businesses have to be approved by discretionary processes which lack constitutionally-mandated time limits.

If the enjoyment of a constitutionally protected activity is contingent upon the prior approval of government officials, such as a permit to engage in speech or expression, a prior restraint exists. The Plaintiffs argue that the provisions within the challenged zoning ordinance require potential adult business owners to obtain two levels of approval from the City. First, adult businesses may only operate in the City as “conditional uses” in the M3, M4, M5 and B6 districts in which they must undergo an approval process prior to opening their doors to the general public. In addition, all adult businesses are considered to be “regulated uses” under Zoning Ordinance Sec. 61-03-251 and must receive approval from City Council before operating.

These restrictions were held to be an unlawful prior restraint.

Prior restraints on speech carry a presumption of invalidity. First, a prior restraint is unconstitutional if it places “unbridled discretion in the hands of a governmental official or agency . . . .” FW/PBS, Inc. v. City of Dallas, 493 U.S. at 225-26 (1990). In order to be constitutional, prior restraints must have specific standards to guide the decision-maker in judging whether a permit
should issue. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757-8 (1998). Second, a “prior restraint that fails to place limits on the time within which the decision-maker must issue the license is impermissible.” FW/PBS, 493 U.S. at 226. Here, the Plaintiffs argue that the adult use provisions of the City’s zoning ordinance violate both facets of prior restraint jurisprudence;
namely, they impermissibly place unbridled discretion in the hands of City officials, and also fail to mandate a prompt application decision as required by Freedman v. Maryland , 380 U.S. 51 (1965). In order to obtain permission to operate an adult business in Detroit, an applicant must receive two types of approval, as both a regulated use or a conditional use. All new adult businesses
in Detroit require approval from the City Council. Conditional use approval requires that the Buildings and Safety Engineering Department make fifteen affirmative findings, including an assessment as to whether the use will be consistent, compatible, or appropriate with the surrounding area and other businesses. These criteria give impermissibly vest broad discretion to the City and
its officials.

More troubling, however, is that the adult use provisions of the City’s zoning ordinance provide no limitations of time upon the reviewing authorities to render an official approval or disapproval. The Supreme Court has mandated that in cases involving prior restraint, “the licensors must make the decision whether to issue the license within a specified and reasonable time period.
. . .” FW/PBS, 493 U.S. at 228, Freedman, supra. The conditional use, the planned development, and the regulated use provisions of the challenged zoning ordinance fail to provide any deadlines whatsoever for the granting or the denying of applications by the appropriate governmental body. Under Freedman, those regulations, which constitute prior restraint, must contain reasonably short deadlines for making decisions. The record in this case clearly demonstrates that the City’s zoning ordinance contains no such deadlines. Hence, the Court must, and does, conclude that the challenged terms and conditions of the City’s zoning ordinance violate the First Amendment of the U.S. Constitution.

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