The ripeness defense is a powerful sword. It can cut off claims that are not ready for prime time. Claims against governments are sometimes brought to intimidate and to wear down public officials. Ripeness rules can help stop such abuses. Sometimes though, it merely delays the inevitable.
Ripeness is for the most part a bright line rule with few exceptions. This week we noticed a case out of Texas that shows just how bright that line can be. On April 15th the U.S District Court on for the Northern District, Dallas Division, told Sara’s Secret/Condoms to Go to complete its application for a certificate of occupancy and have it denied before it came back to court.
The Decision Is Sara Lee Goff, D/B/A Sara’s Secret/Condoms To Go and Lexus Group, Inc. v. The City of Murphy, Texas, The City of Garland, Texas, and the City Of Rowlett, Texas, 2009 U.S. Dist. LEXIS 32128. Rowlett, which is the focus of this decision, is just over 20 miles northeast of Dallas. It has grown from 5,100 residents in 1978, Rowlett to 50,000 today.
Sara Lee Goff (no relation apparently to the popular baker of fine buns) is in the business of selling at retail “inter alia, lotions, creams, oils, herbal pills, lingerie, games, bachelor and bachelorette party goods, condoms, cards, costumes, accessories, and instructional video tapes and DVD’s.” Goff, d/b/a Lexus Group, Inc. (“LGI”) (you can bet the car people are thrilled to have Goff using “Lexus” in her business name), sought to open retail establishments in three Texas towns and was turned down in all three.
The City of Rowlett moved to dismiss on ripeness grounds “… because it has not denied LGI’s application for a certificate of occupancy. The City of Rowlett merely informed LGI that its proposed business may be a sexually oriented business and requested that LGI either furnish documentation that it was not a sexually oriented business or apply for a conditional use permit for a location within the permitted zoning district for a sexually oriented business.”
Goff made what was essentially a futility exception claim – she said she had “abandoned hope of convincing Rowlett . . . that [it] was not a sexually oriented business” and that she was already injured because she could not go forward with her business “in the wake of denials from the City of Garland and the City of Murphy.”
The court rejected Goff’s three arguments. First, it said that the consequences of the denial of a certificate of occupancy did not include any criminal prosecution so the decisions which might support a finding that the case was ripe didn’t apply.
Second, the court said there was no harm until there was a denial. At this point all that was requested was information on how to categorize the business. The claim, said the court was “abstract and hypothetical” until a denial. Go back up and read the list of what she sells. I guess there is at least a remote chance that she could avoid the definition of a sexually oriented business. I went to the city’s website and read the ordinance. Here it is. Go to this general site and search “sexually oriented business.” The section is too long to analyze for you but let’s just say the City of Rowlett obviously is concerned about this type of use.
Goff says: “I’m in the romance business. Couples come in here looking for a way to spice up their love life. They leave with one or two items, and weeks later they come back asking for new items. It’s wonderful to see so many people happy.” Richardson, Texas-Based Romance-Novelty Store Chain Serves Couples’ Needs,” Dallas Morning News, Nov. 22, 2002.
Her lawyer, Gary Krupkin, claims: “We’ve never been held to be a sexually oriented business,” He says the company has shops in cities including Dallas, Plano, DeSoto, Carrollton and Kaufman. “When those cities reviewed our business model, they determined we were not a sexually oriented business.” “Condoms to Go owner sues Garland, Rowlett, Murphy over sex business label,” Dallas Morning News, Sept. 24, 2008.
The court doesn’t address what happens if Goff is denied because it is a sexually oriented business, and she could still locate in a zone where such businesses are permitted.
Third, Goff voluntarily withdrew her application, even though she claimed she did so only because of the denials in the other two municipalities.
So, for the time being, in Rowlett, Texas, it’s no go for condoms to go…
But, wait, there’s more…I just went to Goff’s website, in the interest of intellectual pursuit of course, and they now have a new service: “Sara’s Secret now brings all of the tantalizing seductiveness of our store to the privacy of your home with our Sara’s Secret At Home Parties. You and your friends can let your imagination run from an intimate caress to an untamed adventure as our carefully trained Secret Siren’s show you everything to enhance your most seductive rendezvous.” Does zoning cover this?