14
373. But we take judicial notice under K.S.A. 60-409(b) of the Wichita-Sedgwick County
Unified Zoning Code, which is incorporated by reference in W.M.O. 28.04.010. Article
III.B.14, III.B.16, and III.B.19 of that Code, provide for "Limited Commercial District,"
"General Commercial District," and "Central Business District" zoning. Those sections of
the Code permit several residential uses in such zones. While we cannot say how many
residences fall under such zones, their very existence dispels the panel's assumption that
there is no realistic danger of their regulation here.
While clearly the City has a legitimate governmental interest in the regulation of
late-night commercial activity, that interest does not justify regulatory intrusion into non-
commercial activity vis-à-vis the right of assembly in or around private homes. Cf. Konen
v. Spice, 318 F. Supp. 630, 632 (E.D. Wis. 1970) (ordinance prohibiting "all assemblies
in any place (except the public ball park) without an advance permit granted by the chief
of police" found unconstitutionally overbroad). This is also true of the City's stated
purpose in regulating "the operation of all after-hours establishments so as to minimize
the negative effects and to preserve the public safety, health and welfare." W.M.O.
3.06.010. Cf. Occupy Sacramento v. City of Sacramento, 878 F. Supp. 2d 1110, 1119
(E.D. Cal. 2012) (ordinance restricting gatherings in public parks without a permit
between 11 p.m. and 5 a.m. not unconstitutionally overbroad); Gordon v. Schiro, 310 F.
Supp. 884, 887 (E.D. La. 1970) ("It is beyond the reach of a penal ordinance to prohibit
people from merely being on the streets 'habitually' or even at late 'or unusual' hours.").
See also Territory of Hawaii v. Anduha, 48 F.2d 171, 171-73 (9th Cir. 1931) (statute
prohibiting loafing or loitering "upon any public street or highway or in any public place"
found unconstitutional: "[T]he right of the territory, or one of its municipalities, to
legislate against the obstruction of public streets and highways, whether caused by idlers
or others, is not open to question. But a regulation as broad as this is wholly unnecessary
for that purpose."). As one case put it: