Adult oriented business inspection would not be enjoined

An adult sexually oriented business, here a strip club, was not entitled to a preliminary injunction against inspections of the premises because of a lack of likelihood of success on the merits because of multiple district court cases in the circuit against them. Whether it is a “pervasively regulated industry” is discussed but it does not have to be decided. Platinum Sports v. City of Detroit, 2008 U.S. Dist. LEXIS 17181 (E.D. Mich. March 6, 2008):

Section 5-2-6 provides that members of the Police Department or any City department authorized by the ACO, “may enter the premises at reasonable times to inspect, subject to constitutional restrictions on unreasonable searches and seizures.” Plaintiffs argue that section 5-2-6 gives the City’s agents the right to enter and inspect the premises without a warrant and without any limitations on the scope of the inspection or the places where the inspection may be conducted, in violation of the Fourth Amendment.

Three district court cases from the Sixth Circuit, as well as one appellate case, support the conclusion that in order for a warrantless inspection clause to pass constitutional muster, it must be limited to inspections at reasonable times, referring to regular business hours, and must be restricted to areas of the premises which are open to the public. See, Deja Vu II, 411 F.3d at 796; Ellwest Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553, 1577 (M.D. Tenn. 1989); J.L. Spoons, Inc. v. City of Brunswick, 49 F.Supp.2d 1032, 1039-41 (N.D. Ohio 1999); Kentucky Restaurant Concepts, Inc. v. City of Louisville, 209 F. Supp. 2d 672, 691 (W.D. Ky. 2002). The City directs the Court to cases which hold that sexually oriented businesses are pervasively regulated businesses, such that the owners have a reduced expectation of privacy. Against this backdrop, various courts from other circuits have held that inspections of sexually-oriented businesses without a warrant are constitutional if they are limited to times when the premises are occupied or open for business. These cases permit searches of areas not open to the public. See, FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1306 (5th Cir. 1988). In light of the court’s treatment of the issue in Deja Vu II, it is not likely that the Sixth Circuit will follow the Fifth Circuit’s approach.

The section at issue limits searches without a warrant to “reasonable times”, and “subject to constitutional restrictions on unreasonable searches and seizures.” The section is likely to be interpreted in this Circuit as being limited to inspections during regular business hours, and of public areas only. The general limiting language of the Ordinance probably saves this provision from plaintiffs’ facial challenge; thus, no injunctive relief will be granted at this juncture.