Romantix Fargo

Full title: Romantix-Fargo, Inc., Plaintiff, v. City of Fargo, North Dakota, and…

Court: United States District Court, District of North Dakota

Date published: Dec 22, 2022

Facts

This case involves a dispute over the location of Romantix’s downtown Fargo location and certain zoning provisions in Fargo’s Land Use Development Code (the “LUD Code”). Romantix is a “premier adult toy retailer” that operates at 417 Northern Pacific Avenue in downtown Fargo. 

In June 2022, Romantix began taking steps (including entering into a lease agreement on June 10, 2022) to relocate to 74 North Broadway Drive, a different location in downtown Fargo. Doc. No. 1, ¶ 59. The 74 North Broadway location is zoned Downtown Mixed Use (“DMU”) (id. ¶ 56) and is owned by Gill Investments, Ltd. (“Gill Investments”). Id. ¶ 30. Per the LUD Code, in a DMU zone, an “Adult Entertainment Center” use, which includes “an adult bookstore, adult cinema or adult entertainment facility” uses, are not allowed, unless expressly allowed by other provisions of the LUD Code. Fargo, N.D., Mun. Code § 20-0401. On the other hand, “Retail Sales and Service” use is permitted by right in a DMU zone. Id.

On or about August 15, 2022, Gill Investments submitted a change of use application to the City, seeking to change the classification of the property to allow “Retail Sales and Service” use. Doc. No. 1 ¶ 60. After much back and forth, the City (via Crutchfield) denied the change of use application, deciding (at least according to Romantix) the “Adult Bookstore” definition applied to its proposed use at the 74 North Broadway location. Doc. No. 1-14. And because that use is prohibited in a DMU zone, the City denied Romantix’s proposed use at the 74 North Broadway location. Id. Romantix, for its part, disagrees with the City’s decision and appealed the decision through the appropriate administrative channels in compliance with the LUD Code.

After unsuccessfully appealing the change of use application decision, Romantix filed its complaint with this Court on October 26, 2022. Doc. No. 1. The complaint asserts five claims against the City-(1) a First Amendment challenge to “Adult Bookstore”; (2) a constitutional vagueness claim as to “Adult Bookstore” and “Adult Entertainment Center”; (3) a procedural due process claim as to the change of use application process; (4) a prior restraint/zone out claim as to  the change of use application process; and, (5) an appeal from a decision of the Fargo City Commission under North Dakota Century Code section 28-34-01Id.

Issue

Decision

Ultimately, the substantive dispute over the City’s denial of the change of use application does not appear to present a First Amendment or other constitutional violation, nor does it justify issuing a preliminary injunction and a TRO. Preliminary injunctions and temporary restraining orders are extraordinary relief (Winter, 555 U.S. at 24), and given the balance of the Dataphase factors, such extraordinary relief is not warranted here. For the reasons above, Romantix’s motion for a preliminary injunction (Doc. No. 10), motion for temporary restraining order (Doc. No. 21), and motion to expedite (Doc. No. 23) are DENIED. As discussed by the parties at the December 19, 2022, status conference, Romantix may have an additional two weeks to respond to the City’s motion to dismiss, making its response due January 6, 2023.

IT IS SO ORDERED

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