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North Carolina video store loses latest round in challenge to zoning law

By David Hudson
First Amendment Center

A Charlotte, N.C., video store recently lost a battle in its First Amendment fight over the city's zoning and business license ordinances.

The 4th U.S. Circuit Court of Appeals refused last week to overturn a trial judge's denial of preliminary injunctive relief to Mom N Pops, which rents and sells sexually explicit materials.

In April 1997. Mom N Pops subleased a building from the former occupant, South Blvd. Video and News, an adult business that city officials had been trying to close down because it operated within 1,500 feet of a school or residential district in violation of the city's zoning ordinance.

In May 1997, one of Mom N Pops' attorneys went to the tax collector's office to pay for a business license. The tax collector referred the attorney to the city's zoning officer because, in order for a business to obtain a license, the business must comply with all applicable zoning provisions.

The zoning officer, who was familiar with the city's problems with South Blvd., refused to extend approval until he had more information about the type of business Mom N Pops was.

Mom N Pops, which had purchased South Blvd.'s entire stock of sexually oriented materials, refused to provide the additional information to the zoning officer or to move to another location. Instead, the store filed a suit in federal court, contending the license and zoning laws violated the First Amendment.

In August 1997, a federal district court judge refused to grant the store's request for a preliminary injunction against enforcement of the city laws, finding the laws constitutional. On appeal, the 4th Circuit agreed with the lower court in Mom N Pops, Inc. v. City of Charlotte.

The video store had argued that the zoning law was a content-based restriction on freedom of expression and constituted a prior restraint on protected free expression.

However, the appeals court disagreed, first determining that the zoning law was a content-neutral time, place and manner restriction.

The court concluded that the ordinance was substantially similar to a Renton, Wash., ordinance upheld by the U.S. Supreme Court in the 1985 decision Renton v. Playtime Theatres, Inc., writing: "We do not regard limiting the location of 'adult establishments' from areas within 1,500 feet of sensitive areas such as schools and residential areas as an unreasonable limitation on the exercise of free speech. Therefore, we find under Renton that the challenged ordinance is a permissible time, place and manner restriction that does not violate principles of free speech."

The appeals court also rejected the store's contention that the law acted as a prior restraint on speech because the zoning officer's approval was required by the Charlotte business license ordinance. The 4th Circuit agreed that a prior restraint "exists where a law conditions the exercise of First Amendment protected speech on the prior approval or permission from a government official."

However, the court said, the law was not a prior restraint because "the ordinance does not vest with the Zoning Administrator the responsibility to appraise any facts, or to exercise personal judgment" and is "not a result of unbridled discretion."

The store had also argued that the law constituted a prior restraint because it did not require the zoning officer to make a decision within a certain time frame. The appeals court rejected that argument also, writing that "neither the licensing scheme nor the zoning ordinance constitute prior restraints since the Zoning Officer is not vested with any discretion."

Robert Erwin Hagemann, the Charlotte assistant city attorney who handled the case for the city, said: "We are pleased with the court's decision, particularly with the court's recounting of the history at the location where Mom N Pops tried to open and operate and with the court's ruling on the prior restraint issue."

Hagemann said that "the major component to the prior restraint doctrine is that decision-makers must be provided with sufficient standards so that they do not have unbridled discretion."

According to Hagemann, the city's ordinance did not trigger these concerns because the zoning law at issue dealt only with whether the business qualified an adult business, not with whether it could operate as one.

Hagemann said the Charlotte law allows zoning officers to deny a license only if the business is within 1,500 feet of a school or residential area. "That is not unbridled discretion," he said. "Mom N Pops is free to operate at another location if they are properly zoned."

Thomas Loflin, the store's primary attorney in the case, said: "This decision is internally and logically inconsistent because the court first says there is no prior restraint because the zoning officer has no discretion. Then, the court says that it is not overbroad because the zoning officer can look at factors other than what's listed in the statute. That is placing unbridled discretion in the hands of the zoning officer.

"Secondly, this law is a prior restraint because there is no time limit in the law. The zoning officer could take over 100 years to decide whether to issue the permit," Loflin said.

He said his client has not made a decision whether to file a petition for reconsideration and full panel review by the 4th Circuit. Loflin said that "it is important to realize that this is not a final ruling. We are in the preliminary injunction stage in this litigation."

If an appeal is not filed, the case would go back to the trial court.

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