United States District Court, D. North Dakota
ORDER RE DEFENDANT'S MOTION TO DISMISS
Charles S. Miller Jr. United States Magistrate Court.
the Court is a Motion to Dismiss by defendant, City of Minot
(“Minot”). (Doc. No. 14). Plaintiff, Envy
Gentlemen's Club (“Envy”), has filed a
response to which Minot has replied. (Doc. Nos. 15 & 16).
On July 20, 2018, the court held a telephonic hearing on the
case arises from certain zoning ordinance changes enacted by
the Minot City Council on July 7, 2008. (Doc. No. 14). With
the passage of Ordinance 4130, the City Council added the
following section to Minot's Code of Ordinances:
18-205. Permitted locations for sexually oriented
1. A sexually oriented business is prohibited from being
established, located, operated or licensed in any district
within the City of Minot other than the M-2 Heavy Industrial
District, and then only if it meets the conditions set
forth in Section 15-5 of the Minot Zoning Ordinance
2. The sexually orientated business lawfully operating as of
the effective date of this section and that is in violation
of subsection 1 of this section shall be deemed a
nonconforming use. The nonconforming use will be permitted to
continue for a period of not to exceed three years. If a
nonconforming use is discontinued for a period of 30 days or
more it may not be reestablished. Such nonconforming use
shall not be increased, enlarged, extended, or altered except
that the use may be change to a conforming use.
(Doc. No. 14-1 & 14-2) (Italics added). Additionally, the
City Council amended Section 15-5, “Adult Entertainment
Center / Sexually Oriented Business, ” of the Minot
Zoning Ordinances to reinforce the restriction on the
location of sexually oriented businesses to an M-2 Heavy
Industrial District as well as outline other conditions
necessary to operate such a businesses that are not at issue
Section 18-205 was enacted, Envy operated a licensed liquor
establishment that featured “exotic dancers” at
101 S. Main Street in Minot, North Dakota. Envy does not
contest that the featuring of exotic dancers made its lounge
a sexually oriented business within the meaning of Section
18-205 or that its location did not fall within an M-2 Heavy
Industrial District. (Doc. Nos. 1; 14; 4-2, p.2; 14-4, p.1).
the passage of Section 18-205, Envy was permitted to continue
featuring exotic dancers at the 101 S. Main Street location
as a nonconforming use during the three-year grace period
provided for in Section 18-205(2). However, the grace period
expired in 2011. (Doc. Nos. 1; 6; 14-3, p. 3).
November 2010, and prior to the expiration of the three-year
grace period, Envy commenced an action in state district
court in Ward County challenging the constitutionally of the
subject ordinances, as applied to it. (Doc. No. 14-2). On
June 17, 2011, the state district court granted an ex
parte request for a temporary injunction enjoining
enforcement of the ordinances. (Doc. Nos. 1-1; 14-4, p. 3).
However, upon a subsequent motion by Minot to lift the
temporary injunction, the state district court vacated it on
September 20, 2011, concluding that Envy was unlikely to
prevail on the merits. (Doc. Nos. 1-2, 14-4, pp. 23-24).
Since the lifting of the preliminary injunction, there has
have been no further proceedings in state court, although
both parties agreed during the telephonic hearing in this
case that the state action is still pending.
22, 2017, Envy commenced this action. (Doc. No. 1). Envy
alleges in its complaint that, since September 15, 2011, it
has continued to operate at its present location as a lounge
without entertainment dancing. (Doc. No. 1, p. 2). Envy
claims that, in an effort to reinstitute its entertainment
dancing, it has tried working with Minot to find a location
that meets the requirements of the Ordinance, but has been
unable so. (Id.). Envy claims that potential sites
in the M-2 Heavy Industrial District were either
“occupied, not available for sale, not on the 2011
zoning map, or completely unaffordable.” (Id.
at p. 4). Envy alleges Minot was aware of the unavailability
of a suitable location within the permitted zoning district
at the time the ordinances in question were enacted or later
amended and that its real objective was to zone Envy's
entertainment dancing business out of existence.
(Id. at p.3). Envy contends that, in so doing, Minot
knowingly denied Envy's rights of freedom of expression
under the United States Constitution's First Amendment.
To address this violation, Envy requests injunctive relief
and damages. (Id. at pp. 4-5). In the alternative,
Envy asks the court to declare there has been an
unconstitutional taking of its property and that it be
awarded damages on that basis. (Id. at pp. 6-7).
claims that Envy asserts in its federal complaint mirror
those raised in its state action.That is, Envy's state
complaint raises both a First Amendment freedom-of-expression
claim and a takings claim. (Doc. Nos 1; 14-2).
motion now pending, Minot argues this court should decline to
exercise jurisdiction based the abstention doctrine arising
out of the seminal case of Younger v. Harris, 401
U.S. 746, 756 (1971) and commonly referred to as
Younger abstention. Envy ...