Background
Romantix-Fargo leased property in downtown Fargo, North Dakota, for an adults-only store selling lingerie, sexual devices, sexual-wellness products, and other items. It did not plan to sell sexually explicit books, magazines, periodicals, or DVDs. The property was in a Downtown Mixed Use zone where retail sales and services were generally permitted, but “Adult Entertainment Centers,” including “Adult Bookstores,” were prohibited.
Fargo denied the landlord’s change-of-use application after concluding that the proposed store qualified as an “Adult Bookstore” because adult products constituted a substantial or significant portion of its stock in trade. Municipal boards upheld the denial. Romantix sued under the First Amendment, procedural due process, and the vagueness doctrine, and also appealed the municipal decision under North Dakota law. After suit was filed, Fargo amended its code to prohibit “Sexual Device Shops” in the zone, a category that undisputedly covered the proposed store. The district court dismissed all claims.
The Court’s Holding
The Eighth Circuit affirmed dismissal of Romantix’s federal claims. Under circuit precedent, the proposed sale of adult products without pornographic books, magazines, periodicals, or DVDs was not expressive conduct protected by the First Amendment. Fargo’s generally applicable change-of-use process was not a prior restraint because it applied whenever a building’s occupancy changed and had no close nexus to protected expression. Romantix also received adequate process through its communications with city officials and its administrative appeals.
The court also held that the former definition of “Adult Bookstore” was not unconstitutionally vague, but concluded that Fargo had misapplied that unambiguous definition. Grammatically, the ordinance covered establishments with a substantial or significant portion of their inventory consisting of sexually explicit books, magazines, or other periodicals. Because Romantix planned to sell none of those materials, the City Commissioners’ decision that the store was an Adult Bookstore was arbitrary and capricious under North Dakota law.
The court rejected Fargo’s post-hoc argument that the denial could be sustained through a “similar-use analysis,” because neither the zoning administrator nor the commissioners relied on that rationale. It reversed dismissal of the state-law claim and remanded for the district court to determine, if it retained supplemental jurisdiction, whether that claim had become moot after the code amendment and what relief remained available.
Key Takeaways
- An adult-products retailer that disclaims selling expressive materials such as pornographic books, magazines, periodicals, and DVDs cannot base a First Amendment claim merely on its sale of sexual devices and related merchandise.
- A generally applicable change-of-use permitting system is not a prior restraint when it lacks a nexus to protected speech or expression.
- Fargo acted arbitrarily and capriciously by classifying Romantix as an “Adult Bookstore” under an ordinance limited to stores carrying sexually explicit books, magazines, or periodicals.
Why It Matters
The decision distinguishes constitutional validity from lawful application. Although Fargo’s former Adult Bookstore definition gave adequate notice and survived a vagueness challenge, city officials could not stretch its language to cover inventory that the ordinance did not identify.
The opinion also underscores that courts reviewing municipal land-use decisions under North Dakota law evaluate the reasons the governing body actually gave, not alternative justifications developed during litigation. Whether Romantix can obtain meaningful relief remains unresolved because Fargo later amended its ordinance expressly to prohibit Sexual Device Shops in the downtown zone.