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Romantix files lawsuit against City of Fargo, top city planner over denial of downtown move

The lawsuit, filed in U.S. District Court in Fargo, says the decision to deny the move to the Syndicate Building is unconstitutional.

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The owners of the Romantix adult entertainment store want to move the shop into a new location in the Syndicate Building, at 74 Broadway in downtown Fargo. The Syndicate Building is seen on July 28, 2022.
Chris Flynn / The Forum
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FARGO — The owners of the Romantix store in downtown Fargo are suing the city and the city’s director of planning and development, asserting that denying a permit to allow the adult retail store to move to the Syndicate Building violates the Constitution and is therefore illegal.

The lawsuit pitting Romantix-Fargo Inc. against the City of Fargo and Planning Director Nicole Crutchfield was filed Tuesday, Oct. 25, in U.S. District Court in Fargo.

The lawsuit says the city’s Land Use Development Code and actions by city officials to deny a “change-of-use” permit for the Syndicate Building have prevented Romantix from opening a new retail store at 74 Broadway, and therefore violate the First and Fourteenth Amendments of the United States Constitution.

The lawsuit asks for a declaratory judgment against the city and Crutchfield, damages, attorney fees and costs, and preliminary and permanent injunctions to prevent further actions denying Romantix the right to move.

The Romantix store is currently at 417 Northern Pacific Ave., near the bus station.

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The Syndicate Building is owned by Gill’s Investment LLP, and Romantix has leased the first floor of the building — about 3,500 square feet — starting Sept. 1.

Romantix says it has a 7-year lease and has spent more than $400,000 on improvements, stock and furnishings. The company also was issued a sign permit July 26.

The Forum sought comment on the lawsuit from several city officials Friday afternoon. City Attorney Nancy Morris, who works at Fargo’s Serkland Law Firm, was not in her office, a receptionist said. A voicemail left for Assistant City Attorney Ian McLean, who is also employed at Serkland Law Firm, did not evoke a response Friday afternoon.

Crutchfield said late Friday afternoon that she would be coordinating with the city's attorneys for any comment on the lawsuit.

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The Romantix adult entertainment store at 417 Northern Pacific Ave. is seen July 28, 2022, in downtown Fargo.
Chris Flynn / The Forum

The City Commission voted 4-1 on Oct. 17 to uphold a decision by the city’s Board of Adjustment, which backed the Planning Department’s decision to deny the change-of-use permit.

City officials have said Romantix, even if it doesn’t carry adult books, magazines or periodicals, will still carry materials that fall under the city’s definition of adult bookstore. Adult bookstores are not allowed in the Downtown Mixed Use zoning district.

Romantix has asserted that it will be operating as a retail sales and service store and not as an adult bookstore or adult entertainment center, as defined by the city’s Land Development Code. It won’t have adult books, magazines or periodicals, and Romantix officials said the store will not have on-premises viewing arcades.

Romantix officials and legal counsel have also said the mix of products offered at the new store would be very similar to that available in the Enchantasys stores now operating in Fargo.

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In the court filing, Romantix asserts that the definition of adult bookstore under city code is vague and that city officials' interpretation of how the definition should be applied has differed between inquiries about a potential Romantix move in 2019, which was ultimately not undertaken, and when the change-of-use permit application was made in August.

The change-of-use permit was denied in late August, and Romantix and its legal team were sent a formal notice of the denial in early September by Crutchfield.

Among the assertions in the Romantix lawsuit:

  • The city’s actions deprived Romantix of its due process rights under the 14th Amendment, which says no state can deprive “any person of life, liberty, or property, without due process of law.”
  • The vague definition of adult bookstore chills speech and expression by its very existence, violating the First Amendment.
  • The city’s code in this case constitutes prior restraint, because there is no place in the municipal boundaries of Fargo where a new adult bookstore or adult entertainment center can locate as a matter of right.

Romantix says coming up with a location must be done through the city’s “ad hoc” permitting process, and that fails to provide sufficient due process.
The lawsuit also asserts the city’s definition of adult bookstore is not supported by any "compelling government interest" and that the restriction on speech or expression is greater than essential to further the government’s alleged interest.

The planned Romantix “upscale retail establishment” is not reasonably likely to engender negative secondary effects of adult businesses, the lawsuit asserts. It asks the court to declare Fargo’s definition of adult bookstore and adult entertainment center unconstitutional.

The lawsuit requests an injunction against the city from enforcing or applying the city’s municipal code or permitting process and an order permitting Romantix to operate.

The lawsuit also requests damages, costs and attorney’s fees, any other relief the court deems just and proper, and reversal of the City Commission’s decision to deny the change-of-use permit.

Related Topics: FARGODOWNTOWN FARGORETAIL
Helmut Schmidt is a reporter for The Forum of Fargo-Moorhead's business news team. Readers can reach him by email at hschmidt@forumcomm.com, or by calling (701) 241-5583.
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