June Newsletter (Issue 06-2018)

County Zoning Commission Required To Allow Citizens To Speak At Public Hearing To Rezone Property
Facts and Procedure: Landvatter (Applicant) submitted an application to the Planning and Zoning Commission (PZC) of Franklin County to rezone land on which it intended to build a concrete plant.  The Applicant sought to rezone the existing “Community Development” district into a “Commercial Activity 3 Community Business” district, which would allow the construction of the concrete plant.  The PZC announced that it would hear at its regular monthly meeting Applicants request for rezoning and as required by law published notice in the local newspaper and postcard notices to individuals residing within 600 feet of the property (this included Mason and Concerned Citizens collectively referred to as (Concerned Citizens).  The newspaper notice and the postcard notices included the phrase “no public comments accepted” with respect to the application.  Prior to the meeting, the PZC provided notice to representatives of the local fire department, the highway Department, and other interested agencies stating that if they wanted to submit comments or if they had questions concerning whether or not the property should be rezoned they should submit their comments or questions prior to the meeting, which comments would be distributed to the PZC at or before the meeting.

Concerned Citizen submitted to the PZC a petition with 24 signatures and several letters opposing the rezoning and the construction of the concrete plant.  The clerk  informed Concerned Citizens that their materials would not be distributed to the PZC at or before the meeting.  At the meeting of the PZC, Concerned Citizens again requested an opportunity to be heard, and the request was refused.  The Applicant and proponents were permitted to speak extensively before the PZA in favor of the rezoning, after which the PZA proceeded to vote 9 to 1 to recommend to the County Commissioner’s (County) that the rezoning be approved.  At a hearing before the County on the rezoning, the County allowed the opposition petition to be filed with the County and it heard comments from Concerned Citizens in opposition to the rezoning. Thereafter, the County voted to approve the rezoning.

Concerned Citizens then filled a lawsuit in Franklin County circuit court challenging the action to rezone the property.  The trial court stated that it would not “usurp the authority of the Commission” and made no findings of fact or conclusions of law, ruling for the County.  Mason and Concern Citizens then filed an appeal to the Eastern District.

Opinion: On appeal Concerned Citizens argued that the rezoning was invalid because the PZC failed to conduct a legally sufficient hearing as required by Section 64.875 RSMo., which provides:

“The regulations imposed and the districts created under authority of sections 64.845 to 64.880 may be amended from time to time by the county commission by order after the order establishing the same has gone into effect but no amendments shall be made by the county commission except after recommendation of the county planning commission, or if there be no county planning commission, of the county zoning commission, after hearings thereon by the commission.”

The Eastern District was guided by principles laid down by the Missouri Supreme Court in an earlier case involving Campbell v. County Commission of Franklin County, involving a coal-ash landfill, where citizens were informed that they could not discuss the proposed site for a coal ash landfill, which was noted by the Court as strikingly similar to this case.  In Campbell, the court applied the ordinary dictionary definition of the word “meeting” concluding that a “hearing” is “a session… in which testimony is taken from witnesses,” an “opportunity to be heard, to present one side of the case, or to be generally known or appreciated,” and “a listening to arguments.”

In Campbell the Missouri Supreme Court held that the language of 64.875 provides that speakers must be allowed to address the subject of a proposed zoning amendment.  Not allowing Concerned Citizens an opportunity to be heard before the PZC is a denial of due process, making the subsequent decision by the County void. The law required the County to be guided by the recommendation of the PZC after a “hearing,” which did not happen.  State ex rel. Kelly Brothers vs. County Commission of Franklin County, (ED104766, 05/15/18)

Comment Howard: This rather simple case was complicated due to the resistance of local officials to recognize the fundamental principles of fairness and due process required by law.  It is pretty obvious that the elected and appointed officials wanted to rezone property and their unwillingness to let opposition voices be heard only made matters worse (delayed the process and rightfully angered citizens destroying trust in government) by avoiding what they are required to do by law.  Just give the public a chance to speak and then vote.  I wonder if the arrogance of the Franklin County officials will be a factor in the next election?

City Not Entitled To Assert Eleventh Amendment Sovereign Immunity For The Municipal Court
 Facts and Procedures: Cecelia Webb and five other motorists filed a class action against the City of Maplewood, (City) under 42 U.S.C. § 1983, claiming its policy or custom violated their constitutional rights.  Specifically Plaintiffs asserted that the City automatically issued an arrest warrant whenever someone is ticketed for violating its traffic and vehicle laws when they fail to pay a fine or appear in court.

Once arrested, the motorist must either pay a bond, the amount of which was set in advance, without any determination of his or her ability to pay it, or sit in jail possibly for days.  The plaintiffs further contended that once a warrant has been issued, a motorist cannot avoid it by voluntarily returning to the municipal court or paying the outstanding fine, but must either submit to a custodial arrest or retain a lawyer to argue a motion before the municipal judge to vacate the warrant.  If the court did not grant the motion, the motorist, whose presence in court the judge allegedly demanded would be arrested and jailed.  Plaintiff’s asserted that this is the means by which the City coerced the motorist into paying the bond to secure his or her release.  The plaintiffs maintained that since their poverty makes it difficult if not impossible to pay the bond, the City thereby violates, their due process and equal-protection rights.

The City filed a motion to dismiss the complaint on the grounds that the City was immune from suit (for the actions of the municipal court) and that the complaint failed to state a claim against the City.  The district court dismissed a single count from the complaint on the consent of both parties but otherwise denied the motion, ruling that the City is not immune from suit and that the complaint sufficiently stated a claim of municipal liability.  The City appealed the order denying it immunity to the 8th Circuit.

Opinion: The City argued that it enjoys 11th Amendment immunity (cannot sue states) because the “real party in interest,” the municipal court, is “an arm of the state entitled to sovereign community.”  The City also argued that the responsible officials for any such policy are entitled to absolute immunity from liability under the Civil Rights Act.

The Eighth Circuit reasoned that United States Supreme Court has consistently refused to construe the 11th Amendment to protect political subdivisions such as counties and municipalities even though they may exercise “a slice of state power.” Therefore, the 8th Circuit rejected the arguments made by the City knowing that if the municipal court is responsible for the practices the City may have a defense on the merits, but not immunity from suit.

The Eighth Circuit refused to opine on whether or not immunities for officials would shield the City from separate liability.  It also noted that a municipality could be liable for its unconstitutional policy or custom even when no official has been found per se liable for the conduct under a policy or custom.  The Eighth Circuit concluded that even if legislators are absolutely immune from suit for their legislative activities, the victims of their “legislative abuse” are not without recourse under Monell since the city can still be held liable for constitutional violations.  Webb v. City of Maplewood, (8th Cir., 17–2381, 05/04/18)

Comment Howard: This is an interesting/important case, which has the potential to wreck havoc with the lines between the municipal court system and the local government entity.  Considering the way the Municipal Court system has been established, as part of a unified court system, separate and apart from cities or counties it seems clear (at least in my mind) that the issue should eventually be resolved in favor of the City, unless there is something unusual tying the practice of the court to the City.  Seems like there needs to be an allegation that connects the City to implementation of the custom or policy.  It seems that the courts are reacting to alleged injustices where citizens have little or no recourse against the power of government.  As a result of these allegations the court is filling that gap by providing a place for potential recourse.

Police Cannot Invade the Curtilage Without a Warrant
 Facts and Procedure: Officer Matthew McCall of the Albemarle County Police Department in Virginia saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction.  The driver eluded Officer McCall’s attempt to stop the motorcycle.  A few weeks later, Officer David Rhodes of the same department saw an orange and black motorcycle traveling well over the speed limit, but the driver also got away from him.  The officers compared notes and concluded that the two incidents involved the same motorcyclist.

Upon further investigation, the officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins.  After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house Officer Rhodes tracked down the address of the house, drove there, and parked on the street.  It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.

From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph.  Officer Rhodes, who did not have a warrant, exited his car and walked toward the house.  He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked.  In order “to investigate further,” Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident.  He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen.  After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.

Shortly thereafter, Collins returned home.  Officer Rhodes walked up to the front door of the house and knocked.  Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title.  Officer Rhodes then arrested Collins who was indicted by a Virginia grand jury for receiving stolen property.  Collins filed a pretrial motion to suppress the evidence that Officer Rhodes had obtained as a result of the warrantless search of the motorcycle.  Collins argued that Officer Rhodes had trespassed on the curtilage of the house to conduct an investigation in violation of the Fourth Amendment.  The trial court denied the motion and Collins was convicted.

Collins unsuccessfully appealed the decision through the Virginia courts and then to the United Stated Supreme Court, which granted cert on the question of whether or not whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.

Was the driveway, where he motorcycle located, part of the curtilage?
 Facts :The driveway runs alongside the front lawn and up a few yards past the front perimeter of the house.  The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house.  A side door provides direct access between this partially enclosed section of the driveway and the house.   A visitor endeavoring to reach the front door of the house would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch.  When Officer Rhodes searched the motorcycle, it was parked inside the partially enclosed top portion of the driveway that abuts the house.

 Curtilage – The Court described the curtilage to include areas like the front porch, side garden, or area “outside the front window,” or “an area adjacent to the home and ‘to which the activity of home life extends.”  Therefore, it follows that the driveway enclosure where Officer Rhodes searched was part of the curtilage.

Did the “automobile exception” justify invasion of the cartilage? The automobile exception extends no further than the automobile itself.  The Court postulates that if the motorcycle have been located inside the house (visible through a window while standing on the sidewalk) it is clear that the officer would have had no authority to enter the house without a search warrant.  Therefore, it follows that property located within the cartilage cannot be seized without a search warrant. In other situations, the Court has refused to expand the no warrant exceptions, like the plain view exception to permit warrantless entry into a home based upon the reasoning that the officer has “a lawful right of access to the object itself.”  Therefore, the Court refused to expand the automobile exception to include the curtilage.  Collins v. Virginia, (US SC 116–027, 05/29/18.)

Comment Howard: Based on this case, it is time to review the police departments SOP and update or revise if necessary.

City May Be Liable For Dangerous Condition Caused By Speeding Car That Runs Red Light, Flips And Kills Person Waiting At Bus Stop

 Facts and Procedure: Plaintiff’s petition alleged that Lazarus Britton (“Decedent”) was standing at or near a bus stop at the intersection of Natural Bridge Road and Goodfellow Boulevard in the City of St. Louis (“the bus stop”) when a vehicle driven by Emanuel Smith (“Smith”) was traveling south on Goodfellow in excess of the speed limit.  Smith ran a red light, driving into the intersection and lost control of the vehicle.  The vehicle flipped, left the road and killed Decedent.

Plaintiff, Decedent’s wife, filed suit against the City and Smith for wrongful death.  The City filed a motion to dismiss for failure to state a claim arguing that Plaintiff did not state a claim for a dangerous condition of the City’s property because Plaintiff did not allege a dangerous condition of the City’s property because Decedent’s death was caused by the speeding and running of a red light by Smith.  The court granted the City’s motion to dismiss and Plaintiff appealed to the Eastern District.

Issue – Plaintiff argued that the trial court erred by concluding that the direct cause of Decedent’s death was “solely” Smith’s negligence and dismissed the cause for failure to state a claim.

Analysis – At issue was causation.  The test for proximate cause is generally whether the negligence of the defendant is the conduct of which the injury was the natural and probable consequence.  In this case, the trial court found the allegations were “merely conclusory.”  However, Plaintiff alleged the bus stop, in close proximity to oncoming traffic, was a dangerous condition due to the lack of designated area to sit or stand, as well as the lack of any shelter, and lack of warning to pedestrians about the danger of passing vehicles; therefor, the Eastern District concluded that the allegations in the petition were sufficient to show that Decedent’s death was the direct and proximate result of a dangerous condition of the City’s property.

The Eastern District noted that there is no City liability to “…the extent the damages are surprising, unexpected, or freakish, they may not be the natural and probable consequences of a defendant’s actions.”  However in this case, “…it was not unexpected or freakish that a driver might disregard traffic laws and strike a pedestrian where there is insufficient area to sit or stand, and no shelter or protective structure on the property close to oncoming traffic.”  The Eastern District concluded that “…it is a natural and probable consequence of the dangerous condition of the City’s property that a pedestrian waiting at the bus stop would be hit by a vehicle, as alleged by Plaintiff.”  Smith’s intervening negligence driving his vehicle at a speed in excess of the speed limit and running a red light did not preclude Plaintiff from stating a claim under the dangerous condition exception to sovereign immunity.   Britton v. City of St. Louis, (ED 105973, 05/22/18)                                                                                

 Comment Howard: It is hard to imagine that in an urban environment a City could be liable for a speeding car that runs a stop light and flips thereby killing a person waiting at a bus stop.  I know it is early in the case still you have to wonder.

 Anatomy Of An ADA Accommodation Case
Facts and Procedural Matters: Faidley, a UPS package car delivery driver with multiple physical ailments due to a back injury and a degenerative hip condition, was medically restricted to eight-hour days.  UPS generally insists that drivers be available for overtime work, up to 9.5 hours per day.  When Faidley, informed his station manager of the limitation, he was informed outright “UPS won’t allow anybody to work with a permanent restriction.”

Faidley, after approaching UPS to find another possible position that he could perform with his restrictions “attended an ‘accommodation checklist meeting’ with UPS Occupational Health Supervisors.  Faidley, then identified certain possible positions (car washer, porter, and preload air-driver inside or hub jobs) that he could perform with his restrictions and was encouraged to bid on these jobs but nothing came to avail of this because either no vacancies occurred or Faidley lacked sufficient seniority to be able to bid on the jobs.  Later, his medical restrictions prevented him from filling even these positions.

A position as “feeder driver” was also identified that required more than eight-hour days, but was less physically strenuous.  Blood the UPS District HR manager wrote on his accommodation worksheet that Faidley “preliminarily appear[ed] capable of performing the essential job functions” of a feeder driver, and there was evidence that feeder driver positions would become open in the near future.  This position was not offered, though, supposedly because there were no current vacancies.

Opinion: The 8th Circuit majority (en banc) held that UPS established as a matter of law, in its motion for summary judgment, that overtime was an essential function of the job:

“…UPS explained that overtime is an essential function of the package car driver position because daily package car workloads can increase unpredictably, particularly during the year-end holiday busy season, and drivers encounter unpredictable weather conditions while completing their routes.  If a driver is unable to deliver all the packages in his vehicle within eight hours, and is restricted from working overtime, other drivers must be sent to finish the deliveries, or packages will not be timely delivered; either alternative adversely affects UPS’s business.”

In addition, the 8th Circuit held that even if Faidley were normally able to perform the job in less than eight hours, that did not counteract the occasional days when Faidley would have to work overtime.  Also even though the company could have trained Faidley to perform the job, in anticipation of a future vacancy, “UPS was under no ADA duty to pursue that unlikely accommodation … rather than pursue the inside full-time positions that Faidley listed in his accommodation checklist and for which he was immediately qualified.”

With respect to the feeder driver position, the majority noted that Blood’s tentative notation that Faidley was capable of performing the job was only “a preliminary subjective opinion, unsupported by objective evidence, not materially different than the employee’s subjective assessment that was insufficient to create a material dispute with his physician’s restrictions…” and unable to overcome the substantial objective evidence of the plaintiff’s medical restrictions. In other words, the employee has the burden of proof on this issue.  Fraidley v. United Parcel Service of America, Inc.. (8th Cir. 16 – 1073, 05/11/18)

Comment Howard: If you are looking for a case dealing with ADA disability and reasonable accommodation this is a great case to get a sense of ADA issues. The case was vigorously litigated and the en banc opinion is extremely well written providing useful insights into the give-and-take of the interactive accommodation process.

State Waives Sovereign Immunity Under 11th Amendment By Accepting Title IX Grant
Facts and Procedure: Fryberger sued the University of Arkansas (University) over its response to her report of a sexual assault on campus.  She sought compensatory and punitive damages for violations of Title IX of the Education Amendments of 1972.  Title IX says (with exceptions): “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”.   The University filed a motion to dismiss based on 11th Amendment immunity, which was overruled and it appealed to the Eighth Circuit

Opinion: The University argued that the Eleventh Amendment and constitutional principles of sovereign immunity, makes an unconsenting State immune from “…suits brought in federal courts by her own citizens as well as by citizens of another state.”  A state may, however waive its immunity under the Eleventh Amendment.  Fryberger argued that the University consented to this suit (waived) by accepting federal funds under the Remedies Equalization amendment, (Equalization Amendment) the University, which provides that:

“(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of Section 504 of the Rehabilitation Act of 1973 . . . , Title IX of the Education Amendments of 1972 . . . , the Age Discrimination Act of 1975 . . . , Title VI of the Civil Rights Act of 1964 . . . , or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.”

The Eighth Circuit noted that a waiver of sovereign immunity” will be strictly construed,  in terms of its scope, in favor of the sovereign.”  The University argued that the Equalization Amendment was ambiguous therefore, there was no waiver of sovereign immunity.  The Eighth Circuit held that the Equalization Amendment clearly and unambiguously expressed the University’s consent to Title IX suits for damages by its accepting federal funds.  Freyberger v. University of Arkansas, (8th Cir., 16–4505, 05/02/18)

Comment by Howard: Title IX is extremely broad and covers and applies, with a few specific exceptions, to all aspects of federally funded education programs or activities. In addition to traditional educational institutions such as colleges, universities, and elementary and secondary schools,  Title IX also applies to any education or training program operated by a recipient of federal financial assistance.

City Not Required To Use Statutory Procedures For Refund From State
Facts and Procedures: The city of Lee’s Summit (City) is split between two counties, Cass County and Jackson County.  Both Lee’s Summit and Cass County impose a sales tax on utility service for domestic use, as allowed by § 144.032.  Jackson County does not impose such a tax.  Consequently, sales tax revenue from utility service collected from Lee’s Summit residents in Cass County is distributed by the department of revenue to Lee’s Summit and Cass County, while sales tax revenue from utility service collected from Lee’s Summit residents in Jackson County is payable only to Lee’s Summit.

Kansas City Power & Light (“KCP&L”) sold electricity and gas services to Lee’s Summit residents located in both Cass and Jackson counties.  These residents paid sales taxes to KCP&L and, in turn, KCP&L remitted the taxes along with monthly tax returns to the department of revenue.  KCP&L’s tax returns from December 2008 through November 2011 mistakenly coded all sales taxes received from Lee’s Summit residents as Lee’s Summit/Cass County and failed to code any sales taxes received as Lee’s Summit/Jackson County.  As a result, revenue from sales taxes received for utility services from Lee’s Summit residents in Jackson County during that period was mistakenly distributed to Lee’s Summit and Cass County rather than paid only to Lee’s Summit.

The director of revenue discovered this mistake and notified Cass County that, because of KCP&L’s erroneous tax returns, Cass County had been paid approximately $966,692 in tax revenue that should have been paid to Lee’s Summit.  The director further informed Cass County this erroneous distribution of tax revenue would be corrected over a three-year period via monthly amended tax returns filed by KCP&L.  Based on these amended tax returns, the director would withhold a certain amount of monthly sales tax revenue from KCP&L utility service normally owed to Cass County and distribute this revenue to Lee’s Summit.  This would occur each month until the total amount of tax revenue erroneously distributed to Cass County was redistributed to Lee’s Summit.

Cass County responded by first seeking a writ prohibiting the director from withholding the tax revenue and redistributing it to Lee’s Summit, which was the wrong remedy since it should have filed as an appeal to the administrative hearing commission.  Cass County loses and the case winds its way to the Missouri Supreme Court.

 Opinion: Cass County argued that Lee’s Summit should have followed the statutory provisions for a refund; therefore the state did not have authority to deduct overpayments to Cass County from its monthly payments.  The Missouri Supreme Court held that the refund statute does not apply because the refunds are to be made “to the person legally obligated to remit the tax.”  The issue is not with the amount of taxes computed and collected from KCP&, which would be the subject of a refund, but rather the amount of revenue distributed by the state from such taxes to Lee’s Summit and Cass County.  Cass County v. City of Lee’s Summit, (SC 96731, 05/22/18).

City Adult Entertainment Ordinance Survives First Amendment Challenge

Facts and Procedure: HH-Indianapolis, LLC the parent company of HH, operates retail stores under the name “Hustler Hollywood” throughout the United States in over twenty locations.  HH was incorporated in Indianapolis in order to open a store that would sell a variety of merchandise, including lingerie, gag gifts, instructional DVDs and literature, marital aids, and sexual devices, such as dildos and vibrators.  According to HH, when it seeks to open a new retail store, it studies the city’s municipal ordinance in order to avoid being classified as an “adult” store.

HH intended to open a retail establishment in Indianapolis under the name “Hustler Hollywood.”  After entering into a ten-year lease, HH applied for sign and building permits.  Problematically, HH’s proposed store was located in a zoning district that prohibited “adult entertainment businesses,” as defined under the Indianapolis- Marion County Zoning Ordinance (“the Ordinance”).

In 2016, the Consolidated City Of Indianapolis And County Of Marion, Indiana, (City) adopted a revised zoning ordinance that established six commercial zoning districts. The C-3 District is for the development of an extensive range of retail sales and personal, professional and business services required to meet the demands of a fully developed residential neighborhood, regardless of its size.”  The Ordinance also regulates “adult entertainment businesses,” which is prohibited from operating in a C-3 district as a right, although they may operate as a right in three of the other six commercial zoning districts.

The City determined that HH was an adult entertainment business, a decision, which the Board of Zoning Appeals (BZA) affirmed.  HH then filed a lawsuit against the City seeking a declaratory judgment that the Ordinance violated its First and Fourteenth Amendment rights and violated state administrative law, as well as asking for an injunction against the City’s enforcement of the Ordinance.  HH challenged the Ordinance under the First Amendment both as applied to it, as well as facially for overbreadth and vagueness.  The district court denied HH’s motion for a preliminary injunction, and HH filed this interlocutory appeal challenging that decision only with respect to its as-applied First Amendment claim.

Opinion: In order to be entitled to a preliminary injunction HH is required to show it will suffer irreparable harm in the period before the resolution of its claim; that traditional legal remedies are inadequate; and there is some likelihood of success on the merits.  If a party makes this showing, the court then balances whether the harm to the moving party against the harm to other parties or the public, is sufficiently weighty to deny the preliminary injunction.

HH described its claim as a “content based, prior restraint, and as-applied claim.”  Under the framework established by the United States Supreme Court in analyzing regulations involving adult oriented businesses under the First Amendment, regulations that do not prohibit adult businesses altogether, but merely regulate their location are analyzed as time, place, in manner regulations.  These regulations must be “content neutral,” meaning that they are not aimed at the content of the adult business, but rather the “harmful and undesirable” secondary effects of such businesses on the surrounding community.  If the regulations are not “content–based” they are presumptively invalid and subject to strict scrutiny.  However “content–neutral” time, place and manner regulations are subject to intermediate scrutiny, which requires that regulations must be designed to serve a substantial government interest in curbing secondary effects. They must be narrowly tailored toward that interest and they must allow reasonable alternative avenues of communications.

The zoning regulations of the City did not silence HH’s speech since HH has a right to exercise its First Amendment rights at a location of their choosing in three of the six commercial districts as a matter of right.  Therefore, the City has provided HGH with reasonable alternative avenues of communication in a number of other commercial districts.  HH did not dispute that the Ordinance is “content–neutral” or that the city’s interest in producing secondary effects of adult businesses codified in the ordinance is a sufficient or substantial interest.  Therefore, the Seventh Circuit denied the request for a preliminary injunction.  HH-Indianapolis, LLC , v. Consolidated City Of Indianapolis And County Of Marion, Indiana, (7th Cir., 17–3023, 05/07/18)

Comment Howard: This is a great case.  If you have not recently looked at your adult entertainment ordinance in light of recent Supreme Court decisions on free speech this is a good place to start.