Fargo says Romantix has no First Amendment claim, asks judge to dismiss suit
FARGO (KVRR-KFGO) – The city of Fargo has asked a federal judge to dismiss a lawsuit brought by Romantix, Inc., the adult entertainment company seeking to open a new store in the heart of downtown.
In late October Romantix filed its federal suit against the city, alleging that Fargo’s Land Development Code (LDC) is unconstitutional and claiming the city is depriving Romantix of its First and 14th Amendment rights guaranteeing free speech.
In its motion to dismiss the suit, the city alleges that Romantix cannot state a claim under the First Amendment because it does not plan to sell books or magazines at the new store.
“Romantix’s planned store would sell dildos, not discourse,” the city argues.
In August, the owner of the building at 74 Broadway North applied for a change of use permit to use the building for retail purposes, proposing that a Romantix store open at the site. The city’s Planning Director Nicole Crutchfield denied the permit, citing downtown zoning regulations within the LDC, which do not allow adult bookstores.
Romantix appealed the decision to the board of adjustment saying that because it would not be selling books or other media at the new store it should not be classified as an adult bookstore. The board upheld the denial of the permit though, saying that the proposed store had similar characteristics to those of an adult bookstore and the corresponding regulations should be applied. Romantix appealed that decision yet again to the City Commission, which affirmed the previous denials in mid-October.
Fargo’s brief in support of its motion to dismiss repeatedly cites the Eighth Circuit Court of Appeals finding in a similar case in Jonesboro, Arkansas. The court in that case found that the adult toy store “jettisoned any claim to expressive conduct” by disavowing the sale of DVDs, books or magazines.
In fact, the city alleges, the preliminary injunction requested by Romantix would actually result in a net decrease in free speech and protected sexual expression in Fargo, because the company seeks to close the store that does sell books in order to open the new store which does not.
Fargo has enlisted the services of an attorney from Tennessee, Scott Bergthold, who has represented a number of cities and jurisdictions in similar challenges to their “adult use” related ordinances, to represent the city in federal court.