                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0115n.06

                                            No. 08-2355
                                                                                   FILED
                           UNITED STATES COURT OF APPEALS                      Feb 22, 2010
                                FOR THE SIXTH CIRCUIT   LEONARD GREEN, Clerk


GARTER BELT, INCORPORATED,                         )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )   ON APPEAL FROM THE UNITED
v.                                                 )   STATES DISTRICT COURT FOR THE
                                                   )   EASTERN DISTRICT OF MICHIGAN
TOWNSHIP OF VAN BUREN,                             )
                                                   )
       Defendant-Appellee.                         )




       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).
No. 08-2355
Garter Belt v. Township of Van Buren


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.


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No. 08-2355
Garter Belt v. Township of Van Buren


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.




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