FARGO (KFGO) – A federal judge has denied an emergency motion by Romantix, Inc. to issue a restraining order against the City of Fargo, which would have allowed the adult entertainment business to open a store on Broadway before the City can change codes that will ban such a move.
Judge Peter Welte ruled that Romantix has not demonstrated likelihood that the company would win a federal suit against the City, which alleges that the City’s Land Use Development (LUD) Code is unconstitutional and depriving Romantix of its First and 14th Amendment rights.
“Contrary to Romantix’s characterization of its harm, the LUD Code does not prohibit its business from operating – it restricts where the business may operate,” Welte wrote in his ruling. “Also unconvincing is Romantix’s most recent argument that the City taking steps to amend the LUD Code to add a “Sexual Device Shop” provision will cause it irreparable harm.”
Welte laid out four factors he looked at as he made his decision. They were – threat of irreparable harm to Romantix, the balance between that harm and the injury that granting the harm would cause to others, probability of Romantix’s success in their federal suit, and public interest.
The judge went on to write that even if the City amends the code, which is their right, Romantix’s position would remain the same and, furthermore, he wrote there does not appear to be any constitutional violations.
In August, the owner of the building at 74 Broadway North applied for a change of use permit to use the building for retail purposes, proposing that a Romantix store open at the site. The City’s Planning Director Nicole Crutchfield denied the permit, citing downtown zoning regulations within the LDC, which do not allow adult bookstores.
Romantix appealed the decision to the board of adjustment saying that because it would not be selling books or other media at the new store it should not be classified as an adult bookstore. The board upheld the denial of the permit though, saying that the proposed store had similar characteristics to those of an adult bookstore and the corresponding regulations should be applied. Romantix appealed that decision yet again to the City Commission, which affirmed the previous denials in mid-October.
Fargo’s brief in support of its motion to dismiss repeatedly cites the Eighth Circuit Court of Appeals finding in a similar case in Jonesboro, Arkansas. The court in that case found that the adult toy store “jettisoned any claim to expressive conduct” by disavowing the sale of DVDs, books or magazines.
In fact, the city alleges, the preliminary injunction requested by Romantix would actually result in a net decrease in free speech and protected sexual expression in Fargo, because the company seeks to close the store that does sell books in order to open the new store which does not.
Fargo has enlisted the services of an attorney from Tennessee, Scott Bergthold, who has represented a number of cities and jurisdictions in similar challenges to their “adult use” related ordinances, to represent the city in federal court.
Romantix filed its federal suit in late October Romantix alleging that Fargo’s LUD Code is unconstitutional and claiming the City is depriving Romantix of its First and 14th Amendment rights guaranteeing free speech.
In its motion to dismiss the suit, the City alleges that Romantix cannot state a claim under the First Amendment because it does not plan to sell books or magazines at the new store.
