Garter Belt, Incorporated v. Township of Van Buren

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0115n.06
No. 08-2355
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GARTER BELT, INCORPORATED,
Plaintiff-Appellant,
v.
TOWNSHIP OF VAN BUREN,
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: SUHRHEINRICH, SUTTON, and COOK, Circuit Judges.
COOK, Circuit Judge. Garter Belt, Inc. sued to invalidate portions of the Charter Township
of Van Buren’s sexually oriented business ordinance. The district court granted summary judgment
to the Township. We affirm, but on different grounds.
I.
Garter Belt began operating a topless bar in the Charter Township of Van Buren, Michigan
in 1983. In 1999, the Township adopted an ordinance regulating sexually oriented businesses and
requiring all topless bars to apply for a license. Except for a portion struck down pursuant to the
ordinance’s severability clause, this court upheld the constitutionality of the ordinance in an earlier
case. Bronco’s Entm’t, Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440, 449 (6th Cir. 2005).

-- 1 of 3 --

No. 08-2355
Garter Belt v. Township of Van Buren
- 2 -
Though Garter Belt continues to operate, and never applied for a license under the ordinance, it now
challenges the ordinance on constitutional grounds and seeks a declaration that it need not obtain a
license from the Township. The district court granted summary judgment to the Township.
II.
In Bronco’s, we declined to decide whether the constitution requires that a sexually oriented
business be permitted to continue operations during judicial review or while applying for a license.
Bronco’s, 421 F.3d at 449 n.4. Garter Belt presses for an answer to this question, asserting that the
ordinance would bar it from operating during the pendency of its license application and therefore
acts as an unconstitutional prior restraint.
But no part of the ordinance restricts operations during licensing efforts. Section 22-403,
which details the application and review process, does not mention closure, restriction, or cessation
of operations of existing businesses. In fact, Section 22-404(c) provides a lower fee for existing
businesses, arguably contemplating that such businesses would continue to operate during the
relatively quick application process.
The ordinance can plausibly be read as prohibiting operations during licensing proceedings
(as Garter Belt suggests) or as allowing continued operations. Under the doctrine of constitutional
avoidance, “when deciding which of two plausible statutory constructions to adopt . . .[i]f one of
them would raise a multitude of constitutional problems, the other should prevail . . . .” Clark v.

-- 2 of 3 --

No. 08-2355
Garter Belt v. Township of Van Buren
- 3 -
Martinez, 543 U.S. 371, 380–81 (2005). Thus, we construe the Township’s ordinance to permit
Garter Belt to continue operating while applying for a license. So construed, Garter Belt fails to raise
any constitutional questions not previously answered when we upheld the ordinance in Bronco’s.
Furthermore, at oral argument, counsel for Garter Belt conceded that our application of constitutional
avoidance principles moots its Fourth Amendment claim.
III.
Accordingly, we affirm the judgment of the district court.

-- 3 of 3 --