Local Government Law

Dist. Ct. did not err in granting defendant-City’s motion to dismiss plaintiff’s constitutional challenge to two of defendant’s ordinances that required plaintiff to cut/control weeds of certain height on its property and to fence its open lots with non-combustible screen fence. Ct. rejected plaintiff’s claim that both ordinances, with their $600 to $1,200 and $300 to $600 daily fines, violated 8th Amendment excessive fines clause, where: (1) maximum fine of $600 per day for fence violation served important public purposes of discouraging drug sales and preventing injuries from wild life; and (2) maximum fine of $1,200 for weed control violation supported defendant’s valid ecological interests. Ct. also rejected plaintiff’s claim that weed control ordinance improperly violated its interest in free expression/free speech activity under 1st Amendment, since allowing weeds to grow tall cannot, by itself, be regarded as works of art, and plaintiffs otherwise failed to show that it added anything to weeds growing on its property. Also, fact that ordinances lacked statute of limitations clause did not render them unconstitutional.

Dist. Ct. erred in finding in favor of defendant-City in action seeking injunction to bar enforcement of defendant’s anti-panhandling ordinance that banned within City’s downtown district oral requests for money, but allowed individuals to hold up signs requesting money or make oral requests to send money at later time. Under Reed, 135 S.Ct. 2887, instant ordinance is unconstitutional because it regulates speech “because of topic discussed,” without defendant establishing compelling justification for doing so. Fact that defendant’s ordinance is neutral with respect to ideas or viewpoints is insufficient, since speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within such subject matter.

Defendant’s zoning ordinance, which required plaintiff to seek permits to operate cabaret featuring nude dancing within area authorized by zoning law, violated First Amendment, since it constituted impermissible prior restraint that served to limit expressive activity based on content of said activity, as well as defendant’s determination as to whether proposed cabaret would be detrimental to public welfare. Moreover, defendant could not establish presence of powerful overriding interest for imposing prior restraint. Dist. Ct. erred, though, in resolving issues as to whether remaining portions of ordinance could still be applied to plaintiff’s cabaret based on severability clause in ordinance, since such land-use issues are matters that should be resolved in state court, even though said matters potentially fell within Dist. Ct.‘s supplemental jurisdiction.