JEFFREY A TRUCKOR V ERIE TWPAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
JEFFREY A. TRUCKOR and ALCATRAZ
March 31, 2009
ERIE TOWNSHIP, DENISE GORDY, PAUL
RICHARDSON, GARY LOWRY, WILLIAM
JACOBS, LARRY GUINN, JEFF BENORE,
DENNIS STARK, PAUL MIKELS, DAN
BONKOSKI, CINDY BAUM, GAYLE BURLEN,
DIANE LAPLANTE, AMY WHIPPLE, TAD
COUSINO and W. THOMAS GRAHAM,
Monroe Circuit Court
LC No. 05-020863-CH
Advance Sheets Version
Before: Gleicher, P.J., and K. F. Kelly and Murray, JJ.
GLEICHER, P.J. (dissenting).
I respectfully dissent. Because the challenged zoning ordinance fails to provide adult
businesses with adequate alternative avenues of expression, it violates the First Amendment.
Zoning ordinances aimed at ameliorating “the undesirable secondary effects” of adult
entertainment businesses, rather than regulating the content of their expression, do not offend the
First Amendment. City of Renton v Playtime Theatres, Inc, 475 US 41, 49; 106 S Ct 925; 89 L
Ed 2d 29 (1986). In Renton, the United States Supreme Court explained that content-neutral
zoning regulations pass constitutional muster “so long as they are designed to serve a substantial
governmental interest and do not unreasonably limit alternative avenues of communication.” Id.
at 47. But zoning authorities may not use “‘the power to zone as a pretext for suppressing
expression’” and must “refrain from effectively denying” adult businesses “a reasonable
opportunity” to operate. Id. at 54 (citation omitted).
Plaintiff Alcatraz Industries, Inc., a corporation owned by plaintiff Jeffrey A. Truckor,
operates an adult entertainment business on Telegraph Road in defendant Erie Township. After
plaintiffs opened their Telegraph Road business, the township enacted a zoning ordinance
addressing the secondary effects of adult entertainment establishments. Erie Township’s
ordinance limited future adult entertainment locations to property zoned C-2 and imposed a
1,200-foot separation requirement between adult businesses and residential areas. In 2005,
Truckor purchased land on Victory Road, within Erie Township’s C-2 zoning district, because he
sought to move the adult business to this new location. As the majority acknowledges, Erie
Township officials advised Truckor that because of the ordinance’s footage requirements, “there
is no current possibility for a new establishment to locate within the C-2 district.” Ante at 3.
Thus, the township’s zoning ordinance effectively denies any adult business the opportunity to
locate within Erie Township and prevents plaintiffs from relocating their current adult
establishment. Nevertheless, the majority deems the challenged ordinance constitutionally valid,
concluding that “[i]t is simply impossible to show that the government (the township) has
unlawfully suppressed plaintiffs’ speech while the business still operates within the township
borders.” Ante at 8.
However, in my view, the central issue presented is not whether plaintiffs’ ability to
operate an adult establishment on Telegraph Road fulfills their First Amendment rights. Rather,
the appropriate inquiry is whether Erie Township’s zoning ordinance satisfies constitutional
requirements. Plaintiffs have mounted a facial challenge to the constitutionality of the
ordinance. “A facial challenge is one that attacks the very existence or enactment of the
ordinance; it alleges that the mere existence and threatened enforcement of the ordinance
adversely affects all property regulated in the market as opposed to a particular parcel.” Jott, Inc
v Clinton Charter Twp, 224 Mich App 513, 525; 569 NW2d 841 (1997). The overbreadth
doctrine “allows a party to challenge a law written so broadly that it may inhibit the
constitutionally protected speech of third parties, even though the party’s own conduct may be
unprotected.” In re Chmura, 461 Mich 517, 530; 608 NW2d 31 (2000).
Indisputably, the township possesses a substantial interest in controlling the deleterious
secondary effects of adult businesses. But under the intermediate-level scrutiny applied by the
United States Supreme Court in Renton, an ordinance must “leave open ample alternative
channels for communication of the information.” Clark v Community for Creative NonViolence, 468 US 288, 293; 104 S Ct 3065; 82 L Ed 2d 221 (1984) (emphasis added). Since
Renton, the United States Supreme Court has reaffirmed this concept.
[T]he government may impose reasonable restrictions on the time, place,
or manner of protected speech, provided the restrictions “are justified without
reference to the content of the regulated speech, that they are narrowly tailored to
serve a significant governmental interest, and that they leave open ample
alternative channels for communication of the information.” [Ward v Rock
Against Racism, 491 US 781, 791; 109 S Ct 2746; 105 L Ed 2d 661 (1989)
In Los Angeles v Alameda Books, Inc, 535 US 425, 429-430; 122 S Ct 1728; 152 L Ed 2d 670
(2002) (opinion by O’Connor, J.), the United States Supreme Court reversed a ruling of the
United States Court of Appeals for the Ninth Circuit that struck down a zoning ordinance that
prohibited the location of more than one adult entertainment enterprise in a building. A four(continued…)
The township’s zoning ordinance must refrain from “burden[ing] substantially more speech than
is necessary to further the government’s legitimate interests.” Id. at 799. In my view, an
ordinance that permits only one grandfathered adult business and prohibits its relocation within
the township does not leave open “ample alternative avenues of communication” in Erie
Even assuming that plaintiffs sought to open a second establishment rather than merely
move the first, I would hold that Erie Township’s zoning scheme fails to allow “ample,
accessible real estate” or a reasonable opportunity to operate an alternative channel of
communication. Renton, supra at 53-54. Admittedly, Erie Township is a small, rural
community. But its geographical size is similar to that of Clinton Township, which enacted the
zoning ordinance approved in Jott, supra at 533-534, permitting 12 adult entertainment sites.
My research reveals no caselaw supporting the notion that one adult establishment, barred from
relocation, satisfies Renton’s requirement of “alternative avenues of communication.” Renton,
supra at 50. Although the First Amendment does not mandate that a community host or leave
available any specific minimum number of sites for adult entertainment venues, it does require
that interested parties have a “reasonable opportunity” to disseminate this form of
constitutionally protected expression.
Because Erie Township’s ordinance unreasonably limits to one the number of adult
establishments that may operate in the township, and forecloses that single establishment from
altering its location, I would hold that the ordinance violates Renton and would reverse.
/s/ Elizabeth L. Gleicher
justice plurality reviewed the ordinance by applying the Renton framework, which imposed
intermediate scrutiny of zoning ordinances aimed at controlling “the secondary effects of
protected speech.” Id. at 433-434, 438, 440-443. In a concurring opinion, Justice Kennedy
agreed with the result reached by the plurality, but described as “something of a fiction”
Renton’s “content neutral” characterization of a zoning ordinance intending to curb secondary
effects arising from the operation of an adult entertainment business. Id. at 448 (opinion by
Kennedy, J.). But Justice Kennedy later clarified that “[n]evertheless, . . . the central holding of
Renton is sound: A zoning restriction that is designed to decrease secondary effects and not
speech should be subject to intermediate rather than strict scrutiny.” Id.