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Envy Gentlemen's Club v. City of Minot

United States District Court, D. North Dakota

July 26, 2018

Envy Gentlemen's Club, Plaintiff,
v.
City of Minot, Defendant.

          ORDER RE DEFENDANT'S MOTION TO DISMISS

          Charles S. Miller Jr. United States Magistrate Court.

         Before 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 motion.

         I. BACKGROUND

         This 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:

         Sec. 18-205. Permitted locations for sexually oriented businesses

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 here. (Id.).

         When Section 18-205 was enacted, Envy operated a licensed liquor establishment that featured “exotic dancers” at 101 S. Main Street in Minot, North Dakota.[1] 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).

         After 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).

         In 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.

         On May 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).

         The claims that Envy asserts in its federal complaint mirror those raised in its state action.[2]That is, Envy's state complaint raises both a First Amendment freedom-of-expression claim and a takings claim.[3] (Doc. Nos 1; 14-2).

         In the 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 ...


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