Opinion
Civ. File No. 03-CV-1197
March 11, 2003
MEMORANDUM ORDER OPINION
INTRODUCTION
Before the Court is a Motion for a Preliminary Injunction and Temporary Restraining Order brought by Plaintiffs Tom T., Inc. and Jane Does 1-8 against the City of Eveleth. Plaintiffs seek to restrain and enjoin the enforcement of Ordinance No. 29, 2nd Series ("Ordinance No. 29") pursuant to Rule 65(a) and (b) of the Federal Rules of Civil Procedure. On February 26, 2003, Plaintiffs filed a Complaint in federal district court seeking a declaratory judgment declaring the City of Eveleth's professional dancer licensing ordinance, Ordinance No. 29, unconstitutional under the First and Fourteenth Amendments to the United States Constitution and invalid as a matter of state law. The Complaint further requests a preliminary and permanent injunction, and, until a motion for preliminary injunction could be heard, a temporary restraining order restraining and enjoining the enforcement of the professional dancer licensing ordinance.
FACTUAL BACKGROUND
Tom T., Inc., ("Tom T") operates an establishment named Tuna's Bar in Eveleth, Minnesota. Tuna's Bar holds a liquor license issued by the City of Eveleth. Prior to April 1, 1997, Tuna's Bar featured topless dance entertainment. On April 1, 1997, the City of Eveleth enacted Sec. 5.80, Subd. 2 making it "unlawful for any person issued a license provided for in this Chapter to permit upon licensed premises any nudity, obscene performance or continued use of obscenities by any agent, employee, patron or other person." Id. Subd. 1A. of the ordinance defined the term "nudity" as follows:
`Nudity' means uncovered, or less than opaquely covered, post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered human male genitals in discernibly turgid state. For the purpose of this definition, a female breast is considered if the nipple only or the nipple and the areola only are covered.
Id.
Due to the enactment, Tuna's Bar's dancers are now clothed in G-strings and bikini tops.
On July 16, 2002 the City of Eveleth enacted Ordinance No. 29, requiring "professional dancers" to be licensed by the City of Eveleth in order to perform in a facility which holds a liquor license. Subd. 3A provides in pertinent part:
It is unlawful for any professional dancer to perform without a license therefor from the City. It is unlawful for any beer, liquor or wine licensee to allow any professional dancer to perform without first having obtained a license to perform from the city.
Id.
Subd. 1G of the license defines a professional dancer as "a person performing any dance, act or other performance on the premises of a beer, liquor or wine licensee under this Chapter, whether such person is an employee of the licensee or under contract to perform." Id.
The ordinance's licensing process is provided in Subd. 3B-E of the ordinance:
B. Professional Dancer License Fee: The annual license fee for a professional dancer is $50.00. All applications shall be made in person, at the Police Department, on forms prescribed by the Chief of Police. Photographic identification cards shall be issued to individuals receiving a professional dancer license. License fees are nonrefundable and nontransferable.
C. Issuing Authority: No professional dancer shall be issued a license under this Section until the application therefor has been reviewed by the Chief of Police, or his/her designee, and he/she has had a reasonable opportunity to investigate the applicant and the statements made in the application.
D. Persons Ineligible for License: No professional dancer license shall be issued to a person who:
(1) Is a person of questionable moral character or repute;
(2) Has, within the preceding five years, been convicted of any violation of Minnesota Statutes 609.321 to 609.33, inclusive (Prostitution and related offenses) or Minnesota Statutes, Chapter 152 (Drugs, Controlled Substances);
(3) Is not 18 years of age or older at the time the application is submitted;
(4) Is not a citizen of the United States or a resident alien, or does not have authority to work in the United States;
(5) Has failed to supply all of the information requested in the license application;
(6) Gave false, fraudulent, or untruthful information on the license application;
(7) Has had a professional dancer license revoked or suspended by the City or any other jurisdiction, within a one year period immediately preceding the date the application was submitted;
E. Hearing Rights — Refusal, Revocation or Suspension: The Council may refuse, revoke or suspend any license provided for in this Chapter, upon the finding of a violation. The notice shall be sent by first class mail. The licensee may request a hearing before the City Council if the license is refused, revoked or suspended. The request for said hearing must be received by the City Clerk within ten (10) days of the notice of refusal, revocation or suspension having been sent by the City Clerk.
Id.
Further, Subd. 3F prohibits certain conduct by any person issued a license. As originally enacted, Subd. 3F stated as follows:
It is unlawful for any person issued a license provided for in this Chapter to:
(1) Violate any of the provisions of this Section with regard to nudity, obscene performance or the continued use of obscenities;
(2) Perform any dance or live entertainment closer than six feet to any patron;
(3) Fondle, caress or otherwise touch any patron;
(4) Perform any dance or live entertainment at any location other than a stage or platform designated for such performance, which is raised at least two feet from the level of the floor;
(5) Alter or modify any identification card issued by the City;
(6) Lend or give any identification card issued by the City to another person;
(7) Fail or refuse to display any identification card issued by the City, upon the demand of a peace officer to do so.
Id.
On January 23, 2003, City of Eveleth, enacted ordinance No. 31 which deleted Subd. 3F(2), and amended Subd. 3F(4) to read as follows:
Perform any dance or live entertainment at any location other than a stage or platform designed for such performances, which is raised at least two feet from the level of the floor and enclosed by a railing of not less than four feet, measured from the top to the two foot raised platform, with a horizontal railing at two feet between posts.
Id.
The license application requires that each license applicant provide his or her true name, stage name and residence address.
Plaintiffs Jane Does 1-8 are performers who wish to perform at Tuna's Bar but state in their affidavits that they are discouraged from doing so due to the licensure requirements. In particular, they provide on the record that they believe the public disclosure requirements leave them vulnerable to harassers, stalkers, and sexual predators, and that the requirement, as a condition for exercising a right which the First Amendment guarantees, unreasonably invades their privacy. In addition, Jane Does, 3, 4, 6, and 7 have been convicted of drug offenses and Jane Doe 4 has also been convicted of a prostitution offense, and therefore, according to the terms of the ordinance, would be barred from professional dancing licensure.
SUMMARY OF ARUMENTS
Plaintiffs assert that the Eveleth City Ordinance No. 29 is facially unconstitutional and unconstitutional as applied to them because (1) it is not narrowly tailored to serve a substantial governmental interest, (2) the ordinance leaves the right to engage in protected First Amendment activities to the unfettered discretion of governmental officials, thus constituting an unlawful prior restraint on First Amendment rights, (3) the ordinance fails to provide the procedural due process required when First Amendment rights are subject to licensure, (4) the substantive disqualification from the exercise of a first amendment right, based upon a prior criminal conviction, is an impermissible prior restraint on First Amendment rights.
In its responsive memorandum, the City of Eveleth does not contest the unconstitutionality of the ordinance. Rather, the City argues that Plaintiffs' request for a TRO is moot based on the fact that, "by the time of the TRO hearing, the City Council will have adopted a resolution suspending enforcement of the Ordinance. Based on that resolution dancers at Plaintiffs' establishment will not be required to obtain a license before performing." (Pl.'s Mem. Opp. at 4). Defendant thereby argues that there is no irreparable harm to the Plaintiffs necessitating a temporary restraining order.
STANDARD OF REVIEW
A temporary restraining order may be granted only if the moving party can demonstrate: (1) a likelihood of success on the merits, (2) that the balance of harms favors the movant, (3) that the public interest favors the movant; and (4) that the movant will suffer irreparable harm absent the restraining order. See Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). "None of these factors by itself is determinative; rather, in each case the four factors must be balanced to determine whether they tilt toward or away from granting a preliminary injunction." West Publ'g Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). The party requesting the injunctive relief bears the "complete burden" of proving all the factors. Gelco Corp. v. Coniston Partners, 811 F.2d 414 418 (8th Cir. 1987).
DISCUSSION
1. Likelihood of Success on the Merits
Plaintiffs set forth multiple constitutional challenges to Ordinance No. 29 as part of their motion for a temporary restraining order and preliminary injunction. Rather than evaluate each contested provision of the ordinance at this time, the Court will discuss generally the four major areas of constitutional concern cited by the Plaintiffs and evaluate the Plaintiffs' likelihood of success on the merits.
Overbreadth
The Plaintiffs assert a facial challenge to Ordinance No. 29's constitutionality. In particular, they argue that the ordinance is overbroad in addressing the secondary effects it purports to prevent.
An ordinance which prohibits a broad range of protected expression may be facially challenged as overbroad. Ways v. City of Lincoln, 274 F.3d 514, 518 (2001) (citing Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The overbreadth doctrine represents a departure from traditional standing rules, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). It allows a party to challenge an ordinance on the ground that the ordinance might be applied unconstitutionally to third parties whose actual circumstances are not before the court. Bates v. State Bar of Ariz., 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977). The overbreadth doctrine, however, is `strong medicine' that should be employed only `with hesitation, `and then `only as a last resort.'" Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389, 1391 (8th Cir. 1985) (quoting New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982)). If an ordinance infringes upon a protected liberty, it must be narrowly tailored to further a sufficiently substantial government interest. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). An ordinance affecting both conduct and pure speech must be both "real" and "substantial" in relation to its "plainly legitimate sweep" to be held overbroad. Ferber, 48 U.S. at 769-70, 102 S.Ct. at 3362; Brodrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973). There is real and substantial overbreadth when there is "a realistic danger that the ordinance itself will significantly compromise recognized First Amendment Protections of parties not before the [c]ourt." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 830 (1984).
In evaluating the breadth of Ordinance No. 29, the Court first considers the secondary effects the ordinance purports to address. The ordinance states:
[t]his ordinance is intended to prevent harm stemming from physical immediacy and the combination of alcohol, nudity and sex. We also desire to prevent any subliminal endorsement of sexual harassment or activities likely to lead to the possibility of various criminal conduct such as prostitution, sexual assault and other disorderly types of conduct.
Ordinance. No. 29, Preface.
The Court recognizes that governments have a substantial interest in curbing the secondary effects of the adult entertainment industry. See City of Erie v. Pap's A.M., 529 U.S. 277, 290-91, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). However, the ordinance before it regulates all "professional dancers," at any establishment holding a liquor license. The ordinance is not limited to sexually explicit performances or to sexually oriented business establishments. Further, the term "professional dancer" is broadly defined to include a person who performs any kind of "performance" on the premises of a beer, liquor or wine licensee. Ordinance No. 29, Subd. G.
The Eighth Circuit held that a Lincoln, Nebraska ordinance regulating "sexual contact," was constitutionally invalid as overbroad. Ways, supra, 274 F.3d at 514. In that case, the ordinance in question regulated "sexual contact" for the purpose of "curb[ing] secondary effects of public sexual contact, such as immorality, `prostitution, assaultive behavior, and other related criminal behavior.'" The court found that the ordinance was constitutionally overbroad because it did "not exclusively cover conduct in adult entertainment businesses, which has been recognized to cause harmful secondary effects." Id. at 519. The Eighth Circuit stated:
If a statute infringes upon a protected liberty, it must be narrowly tailored to further a sufficiently substantial governmental interest. The original . . . ordinance sought to deter immortality and to curb `prostitution, assaultive behavior, and other related criminal behavior.' The government has a sufficiently substantial interest in curbing such secondary effects, . . . but Ordinance No. 17613 was not tailored to combat them and swept further than necessary.
Id. at 518-519 (internal citations omitted).
The ordinance before the Court is even broader than that in Ways. In particular, Ordinance No. 29 restricts all performances, not only those limited to sexual conduct, for the purpose of thwarting sexually related secondary effects. In doing so, the ordinance presents a realistic danger that it will significantly compromise the First Amendment protection of persons not before the Court. The City of Eveleth's argument that the City Council "did not intend" the ordinance to include all professional dancers is irrelevant to a facial challenge to the ordinance's constitutionality. Given the foregoing, the Court finds that the plaintiffs have a strong likelihood of success on the merits of their overbreadth claim.
Governmental Discretion
Plaintiffs also argue that the ordinance vests excessive discretion in the license-granting officials. In particular, they assert that the language denying a professional dancers license to "a person of questionable moral character or repute" leaves Eveleth officials with too much discretion. Ordinance No. 29, Subd. D(1). It is settled constitutional law that an ordinance which vests unlimited discretion in a governmental official to grant or deny permission to engage in First Amendment activities, can be challenged as a facially unconstitutional prior restraint on free expression. See, e.g., Schneider v. State, 308 U.S. 147, 164, 66 S.Ct. 146, 84 L.Ed. 155 (1939); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed. 288 (1975).
The U.S. Supreme Court's decision in City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) states the law on evaluating governmental discretion. In invalidating an ordinance which gave a city mayor discretion to authorize the placement of newsstands on public streets, the Supreme Court stated:
The City asks us to presume that the mayor will deny a permit application only for reasons related to the health, safety, or welfare of Lakewood citizens, and that additional terms and conditions will be imposed only for similar reasons. This presumes the Mayor will act in good faith and adhere to standards absent from the statute's face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows. The doctrine requires that the limits that the City claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, of well-established practice. This Court will not write nonbonding limits into a silent state statute.
Id. at 2150-2151(internal citations omitted).
Here too, the city officials are given an undefined range of discretion in granting licensure. The Defendants state that of the 17 license applications the City has received, "relying solely on the criteria established by the City Council in Subdivision 3, Paragraph D . . . of the Ordinance, the Chief of Police has approved all 17 applications." (Def.'s Mem. Opp. at 2). This City, however, seems to assert the very argument that the Supreme Court has rejected. Where constraints on the freedom of expression are concerned, reliance on the good faith of the license-granting official is insufficient to overcome the textual infirmities of the ordinance.
Further, as a prior restraint on speech, the licensing ordinance must provide the due process elements set forth in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1964). Prior restraints on speech come with a "heavy presumption" against validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 83, S.Ct. 631, 9 L.Ed.2d 584 (1963). In Freedman, the Supreme Court held that systems of prior restraint on speech are nevertheless permissible, so long as they provide adequate procedural safeguards. See 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The safeguards established in Freedman are as follows: "(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (citing Freedman, 380 U.S. at 58-60, 85 S.Ct. 734).
The Court in FW/PBS held, however, that where `the dangers of a censorship system' are not at issue, only the first two Freedman procedural safeguards are essential. See id. at 228 (citing Freedman, supra, at 58, 85 S.Ct., at 738-39).
The District of Minnesota has twice in recent years invalidated ordinances for failing to comply with the FW/PBS test. See Wolff v. City of Monticello, 803 F. Supp. 1568, 1574, 1575 (D.Minn. 1992); Mga Susu, Inc. v. County of Benton, 853 F. Supp. 1147, 1153 (D.Minn. 1994). Here, the ordinance in question does not provide the two essential procedural safeguards of FW/PBS and Freedman. Ordinance No. 29, Subd. 3C prohibits the issuance of a license, "until the application therefore has been reviewed by the Chief of Police, or his/her designee, and he/she has had a reasonable opportunity to investigate the applicant and the statements made in the application." Id. In short, the ordinance restrains speech without providing a "specified brief period" and does not provide for expeditious judicial review. Because the ordinance appears to fail the requisite FW/PBS test, the Court concludes that the plaintiffs have a high likelihood of success on their governmental discretion claim.
Disqualification Provisions
Plaintiffs contest the ordinance's multiple disqualification provisions, in particular, the provisions prohibiting licensure based on prior criminal convictions. The Eighth Circuit, however, has not had the opportunity to address the validity of such licensure provisions. See Jake's Ltd. v. City of Coates, 284 F.3d 884 (8th Cir. 2002) (the court did not address an ordinance's criminal disqualification provisions due to the plaintiff's lack of standing). District courts and the Seventh Circuit, however, have invalidated prior restraints on free expression based on an applicant's past criminal convictions. See, e.g., Avon 42nd Street Corp. v. Myerson, 352 F. Supp. 994, 998 (S.D.N.Y. 1972); Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir. 1980); Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000).
In both the Genusa and Schultz decisions, the Seventh Circuit rejected prior restraints on free expression based on prior convictions. In Schultz, citing its prior decision in Genusa, the Seventh Circuit stated:
The First Amendment also does not allow licensing provisions based on criminal history that `totally prohibit certain classes of persons' from First Amendment expression . . . We know of no doctrine that permits the state to deny to a person First Amendment liberties other than the right to vote solely because that person was once convicted of a crime or other offense.
Schultz, 228 F.3d at 852 (internal citations omitted).
Based on the reasoning set forth by the Seventh Circuit, this Court determines that the plaintiff is likely to succeed on its claim regarding Ordinance 29's criminal disqualification provision.
Disclosure Provisions
Lastly, the Plaintiffs contest the ordinance's disclosure provisions, which require applicants to reveal their names, stage names, and residential addresses. Plaintiffs argue that these disclosure provisions are open to public access under the Minnesota Data Practices Act, Minn. Stat. Sec. 13.41, Subd. 2(a). Here, one of the Jane Doe plaintiffs has stated in her affidavit that the disclosure provisions dissuade her from applying for professional dancing licensure out of concern for her physical safety.
The district court in Schultz found that a licensing provision that required an applicant to reveal her real name, home address and telephone number was an unconstitutional restraint on free speech. 26 F. Supp. 1128 (W.D.Wis. 1998), aff'd in part, rev.d in part, 228 F.3d 831 (7th Cir. 2000). There, the court held that the employee disclosure provisions were not narrowly tailored to serve the legitimate governmental interest in crime prevention. Id. at 1151. On review, the Seventh Circuit held that some of the information requested from employees served as a valid means of allowing the city to "regulate the time place or manner of adult entertainment without censoring expression." Schultz, 228 F.3d 831, 852 (7th Cir. 2000). However, the Court held that requiring an employee applicant to provide her residential address was "redundant and unnecessary." Id. Further, it found that its disclosure, "serves `no purpose other than harassment.'" Id. (citing Genusa, 619 F.2d at 1217).
Here, the scope of the ordinance in question is broader and less tailored than that in Schultz. In light of precedent in this area and the broad scope of Ordinance No. 29, the Court finds that the Plaintiffs have shown a likelihood of success on their claim against the ordinance's disclosure provision.
II. Balance of Harms, Irreparable Harm, and Public Interest
Defendant argues that the ordinance is moot based on Resolution No. 3595, which the Eveleth City Council adopted on March 4, 2003, three days prior to the TRO court hearing. The resolution states:
BE IT RESOLVED by the City Council of the City of Eveleth:
RECITALS
A. On July 16, 2002, the City Council adopted Ordinance 29, 2nd Series ("Ordinance").
B. The Ordinance imposes, among other things, a requirement that professional dancers obtain a license from the City before performing any dance, act, or other performance at an establishment holding a beer, liquor, or wine license issued by the City.
C. The purpose of the Ordinance, as expressed in its preface, is to protect the health, safety, and general welfare of the City and to prevent potential harm arising out of the combination of alcohol, nudity, and sex.
D. The City has received 17 applications for professional dancer licenses since the Ordinance was enacted. Relying solely on the criteria established by the City Council in Subdivision 3, Paragraph D ("Persons Ineligible for License") of the Ordinance, the Chief of Police has approved all 17 applications. The longest time that it has taken him to review and approve any application has been three business days
E. In enacting the Ordinance, the City Council did not intend to require dancers or performers engaging in non-sexually explicit performances to obtain a license.
F. The City Council finds that it is appropriate to amend the Ordinance to ensure that it implements the Council's intent and that until the Ordinance is amended, the City will not require any additional professional dancer licenses.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Eveleth that:
1. City staff is hereby directed to prepare amendments to the Ordinance implementing the intent of the City Council.
2. The Amendments to the Ordinance shall be completed and presented to the City Council within 30 days of the date of this Resolution; and
3. The City shall not require any professional dancer to apply for, obtain, or renew a professional dancer's license until the City Council amends the ordinance and enforcement of the Ordinance is suspended unless and until such amendments become effective.
The City Council's resolution, however, is insufficient to render this issue moot. The United States Supreme Court is clear on this matter. "It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982). "Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave `[t]he defendant . . . free to return to his old ways.'" Id., at 289, fn 10. (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).
The Supreme Court's concern that a defendant would revert to its past practice, as expressed in Mesquite and W.T. Grant, is apparent here. The resolution adopted by the City Council provides absolutely no assurance that the multiple constitutional infirmities of Ordinance No. 29 would be remedied by a subsequent amendment. An amendment, evincing the Council's "intent" could take any form and could alter any provision of the ordinance without actually addressing the legitimate First Amendment concerns expressed by the plaintiffs in this action. Accordingly, the promises of the City Council are insufficient to render the question of Ordinance No. 29's constitutional validity moot.
Having found that the Plaintiffs have a high likelihood of success on the merits and that Plaintiffs' challenge to the ordinance is not moot, the Court also finds that in evaluating the balance of harms, irreparable harm, and the public interest, the scale weighs heavily in the Plaintiffs' favor.
The Court is satisfied that the Plaintiffs have met their burden in establishing that there would be more harm to them than to the defendant if their motion for a temporary restraining order were denied. Although suspended, Ordinance No. 29 still in exists. Further, the defendants have not argued that a temporary restraining order would harme in anyway.
Regarding irreparable harm, the Supreme Court has said the following: "It is clear therefore that First Amendment interests were either threatened or in fact being impaired at the time relief was sought. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2672.
Lastly, a TRO would be in the best interest of the public as, "the public interest favors preventing enforcement of an ordinance that unconstitutionally restrains protected expression." MGA Susu v. County of Benton, 853 F. Supp. 1147, 1154 (D.Minn. 1994).
Accordingly, having found that the Plaintiffs have a high likelihood of success on the merits, that the balance of harms tilts toward the Plaintiffs, that the Plaintiffs have suffered irreparable injury in the form of unconstitutionally constrained freedom of expression, and that the public interest favors preventing enforcement of an unconstitutional ordinance, the Court appropriately grants the Plaintiffs' request for a Temporary Restraining Order.
IT IS HEREBY ORDERED:
1. Plaintiffs' Motion for a Temporary Restraining Order (Docket #2) is GRANTED.
2. Until Plaintiffs' Motion for a Preliminary Injunction is determined on its merits, Defendant is restrained from taking any action, civil, criminal or administrative, to enforce Ordinance No. 29, as amended, against Plaintiffs, or anyone acting under Plaintiffs' direction and control.
3. The security requirement of the Federal Rules of Civil Procedure, Rule 65(c) is waived.