U.S. Eighth Circuit - The FindLaw 8th Circuit Court of Appeals Opinion Summaries Blog

Can't Ban Strip Club? Ban Business.

Florence, Minnesota really doesn't want your dirty, salacious strip club. When a businessman attempted to open The Juice Bar, a non-alcoholic adult entertainment venue, the town banned all commercial business through zoning regulations. Yes, all business.

According to the Eighth Circuit, banning the strip club and all other businesses from operating within city limits was entirely constitutional, especially since the town is only 0.27 square miles.

Content-Neutral

The ordinance prohibiting The Juice Bar began as a not-so-neutral zoning restriction that banned any "sexually-oriented" business within 250 feet of any property used for residential use, day cares, schools, parks, or libraries. Flesh merchants were restricted to zone "C-2" (commercial). Coincidentally, the entirety of Florence was zoned R-1 (residential).

Perhaps realizing that such a complicated zoning scheme was unnecessary (and possibly unconstitutional), the town later revised the ordinance to bar any commercial activity whatsoever.

In reviewing the case, the Eighth Circuit first held that the ordinance, as revised, was content-neutral, and therefore, subject to intermediate scrutiny. Such a restriction "will be upheld if it is narrowly tailored to serve a substantial governmental interest and leaves open ample alternative channels for communicating the speech."

Florence cites a number of quality-of-life interests, such as maintaining property values and preserving the residential aspect of the town, plus they argue that their limited resources restrict their ability to accommodate commercial or business establishments. Quality of life is an interest that the Supreme Court itself has warned "must be accorded high respect."

As for "ample alternative channels," the Supreme Court has not addressed whether a small town can outright ban a form of speech, but the Eighth Circuit cites the large amount of land in Lyon County that would be available for "sexually-oriented" businesses (approximately 32 percent, per the Juice Bar's expert).

Size Matters

Would this issue have resulted in a different holding had Florence, Minnesota been a bustling metropolis?

The population of Florence is 39. It contains 0.27 sq. miles of land. Banning business from "town" is tantamount to making them move across the street. Remember that expression "a stone's throw from ..."? It has never been more applicable.

The court relies upon the availability of land elsewhere in the county, and on two other circuits' consideration of similar cases, in upholding the ordinance, but one has to wonder if this small town censorship is a bit of a slippery slope.

Juice Bar's Future

Though the court doesn't mention what happened to The Juice Bar, or its owner, the story does get even more entertaining. After the city shut down the bar, the owner moved in, declared it to be his residence, and began charging a $10 "lodging fee" to access his residence, which coincidentally contained a lighted runway and a pole, reports the Morris Sun Tribune.

The ruse didn't last long, and now, he's in a battle to open the Loft, another "juice bar" in Corwith, Iowa, a town of 309 people, reports the Globe Gazette.

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