Littleton, Colorado v. Z.J. Gifts D-4, L.L.C. (06/07/2004)

Questions presented: Whether the requirement of prompt judicial review imposed by FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), entails a prompt judicial determination or a prompt commencement of judicial proceedings?

Brief

BY ASHLEY YARCHIN, MEDILL NEWS SERVICE

In 1993, the City of Littleton, Colo., passed an ordinance requiring adult entertainment and merchandise businesses to obtain licenses, and restricting those businesses to certain areas of Littleton. The ordinance was created to prevent the negative secondary effects such businesses bring to communities, which can lower property values and increase crime rates.

In the fall of 1999, Z.J. Gifts opened a store in Littleton called "Christals," which sells adult toys, novelties, gag gifts, lotions, potions, lingerie, magazines and movies.

Before the opening of Christals, the City told the owner of the commercial property on which Christals was located that adult businesses were not permitted at that location.

Shortly before Christals opened, without even applying for a license, Z.J. Gifts filed suit against the City alleging that Littletons ordinance was unconstitutional because it infringed on Z.J. Gifts 1st Amendment rights. Z.J. argued that singling out and requiring a lengthy licensing system for only adult-oriented businesses and not providing prompt judicial review for such cases impedes their right to free expression.

Z.J. Gifts also said that it did not intend to operate an "adult business establishment" as defined by Littletons ordinance.

According to the ordinance, "a commercial establishment falls under this category if, as judged by percentage of stock-in-trade, revenue, or advertising, it is primarily devoted to the sale of materials that are characterized by the depiction or description of specified sexual activities or specified anatomical areas, regardless of whether the establishment has other business purposes." Z.J. Gifts said this definition is too vague.

Regarding adult business location sites, Littletons ordinance states that adult establishments cannot operate "within 500 feet of a church, school, child-care facility, public park, massage parlor regulated by local ordinances, or community correctional facility [nor] within 1,000 feet of each other. In addition, multiple adult businesses may not operate within the same structure."

This requirement leaves about 100 acres, or between 1.2 and 1.3 percent of the total acreage of the City of Littleton, available for adult businesses.

Z.J. Gifts said that the location restrictions are content-based restrictions on speech, which is unconstitutional.

Additionally, Z.J. Gifts alleged that because of the intensity of Littletons licensing system requiring, among other things, fingerprints and background checks there exists a risk of delay in granting or denying a license.

Christals then opened its door to the public without such a license on SouthBroadway in Littleton. The store was rejected for a sales tax permit, but did obtain an occupancy permit.

In March 2001, the district court ruled in favor of the city, concluding that Christals is an adult bookstore under the ordinance, and the ordinance is constitutional. Z.J. Gifts appealed.

On Nov. 18, 2002, the 10th Circuit Court of Appeals reversed, holding that although Christals is an adult business and the ordinances location requirements are constitutional, the judicial review procedure and pre-application requirements of Littletons ordinance are unconstitutional.

The 10th Circuit was guided by U.S. Supreme Court precedent dealing with licensing ordinances and prompt judicial review. The court noted that Littleton did not argue that the materials sold by "adult businesses" are obscene and therefore unprotected by the 1st Amendment.

In Freedman v. Maryland, a 1965 case involving motion picture censorship, the Supreme Court required that either a "statute or authoritative judicial construction" must specify the time limit within which the license must be issued or denied.

Z.J. Gifts argued that Littletons ordinance should have the same standard. The City of Littleton countered that prompt judicial review means only that there must be "the possibility" or "an avenue" for prompt judicial review, and that there isnt a need for judicial determination within a short period of time.

In a 1990 case regarding ordinance regulation of sexually-oriented businesses, the Supreme Court, in FW/PBS, Inc. v. Dallas, found a Dallas ordinance unconstitutional because it allowed for indefinite postponement of a license because the premises had to be approved in advance by the health department, fire department and building official. Similarly, Littletons ordinance does not specify a time limit within which for the City to complete its prerequisites, rendering the ordinance unconstitutional as well.

Although the Littleton ordinance states that a license application must be approved within 30 days, Z.J. Gifts said that the ordinances list of provisions required in order to obtain a license presents the possibility of indefinite postponement of a license.

Z.J. Gifts then claimed that Littletons licensing scheme grants excessive discretion to licensing officials.

"There is always going to be a percentage of the population that is offended by these types of stores," said Z.J. Gifts' attorney, Michael Gross.

The 10th Circuit's unanimous opinion sided with Z.J. Gifts.

"Because no time limit is specified in the ordinance or by authoritative judicial construction, we hold that the subject ordinance's requirement that a letter from the Zoning Official accompany the application, along with the fingerprinting and photography requirements, are unconstitutional for failure to specify a time limit within which the City must act," wrote Judge Carlos F. Lucero.

The court then considered whether parts of Littleton's ordinance beyond the pre-application licensing provisions could still be constitutional. Specifically, the court addressed if the constitutional standard for "prompt judicial review" requires the city to provide a "prompt decision" from the courts within a short period of time or only the possibility for prompt review.

Noting that the federal circuits are divided over this question, the 10th Circuit concluded that mere "access" to judicial review is insufficient in licensing cases.

"Following the Fourth, Sixth and Ninth Circuits, we hold that, in the event that an adult-business license is denied, FW/PBS requires a prompt final judicial decision regarding the validity of the denial," Lucero wrote.

On Oct. 14, 2003, the Court took the case and limited review to whether the requirement of prompt judicial review imposed by FW/PBS, Inc. v. Dallas entails a prompt judicial determination or a prompt commencement of judicial proceedings.

According to Scott D. Bergthold, who represents the Colorado Municipal Leagues, International Municipal Lawyers Association and the American Planning Association as amicus in Supreme Court, the case is of great concern for cities across the country.

"An adverse decision from the Court would do substantial harm to cities seeking to reasonably control the secondary effects of adult businesses," Bergthold says.