Planning Commission Agenda Packet 01-07-1992AGENDA
` REGULAR MEETING - MONTICELLO PLANNING COMMISSION
Tuesday, January 7, 1992 - 7:00 p.m.
Members: Dan McConnon, Richard Carlson, Richard Martie, Cindy
Lemm, Jon Bogart
7.00 pm 1. Call to order.
7:02 pm 2. Approval of minutes of the regular meeting held
December 3, 1991.
7:05 pm 3. Consideration of adopting a resolution adopting
findings and conclusions supporting establishment
of zoning ordinance amendments governing adult land
uses.
7:35 pm 4. Continued Public Hearing --Consideration of a
conditional use permit allowing expansion of a
medical office and clinic in a PEM (performance
zone mixed) zone. Applicant, Mortenson
Construction Company.
7:40 pm 5. Continued Public Hearing --Consideration of a
variance to the parking design standards by
allowing development of a parking lot with 8 stalls
less than the total stalls (93) required by
ordinance. Applicant, Mortenson Construction
Company.
NOTE: The applicant has not provided site plan
data necessary to properly review items 4
and 5. Staff will provide verbal report
and request that the Planning Commission
continue the public hearings.
Additional Information Items
7:45 pm 1. Consideration of amendments to the Monticello
Zoning Ordinance relating to the definition of
adult uses and general provisions for adult uses.
Applicant, City of Monticello. Council action: No
action required, as the request did not come before
them.
7:47 pm 2. Public Hearing --Consideration of a conditional use
permit allowing expansion of a medical office and
clinic in a PEM (performance zone mixed) sone.
Applicant, Mortenson Construction Company. Council
action; No action required, as the request did not
(i come before them.
Planning Commission Agenda
January 7, 1992
Page 2
7:49 pm 3. Public Hearing --Consideration of a variance to the
parking deaign standards by allowing development of
a parking lot with eight stalls less than the total
stalls (93) required by ordinance. Applicant,
Nortenson Construction Company. Council action:
No action required, as the request did not come
before them.
7:51 pm 4. Set the next tentative date for the Monticello
Planning Commission meeting for Tuesday,
February 4, 1992, 7:00 p.m.
7:53 pm S. Adjournment.
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MINUTES
REGULAR MEETING - MONTICELLO PLANNING COMMISSION
Tuesday, December 3, 1991 - 7:00 p.m.
V
Members Present: Dan McConnon, Jon Bogart, Cindy Lemm, and
Richard Carlson
Members Absent: Richard Martie
Staff Present: Gary Anderson, Jeff O'Neill
1. The meeting was called to order by Chairperson Dan McConnon at
7:07 p.m.
2. A motion was made by Richard Carlson and seconded by Jon
Bogart to approve the minutes of the regular meeting held
November 5, 1991. Notion carried unanimously with Richard
Martie absent and Dan McConnon abstaining.
3. Public Hearinq--Consideration of amendments to the Monticello
Zoninq Ordinance relatinq to the definition of adult uses and
general provisions for adult uses. Applicant, City of
Monticello.
Chairperson Dan McConnon opened the public hearing.
Jeff O'Neill, Assistant Administrator, reviewed the background
to the proposed ordinance amendment. Mr. O'Neill explained
that much of the language contained in this report is directly
from the consulting planner, Northwest Associated Consultants,
Inc. Some of the material is also used by the cities of
Buffalo and Big Lake in their newly -adopted ordinance
amendments on adult uses and general provisions for adult
uses.
O'Neill explained the parameters of regulation, the zoning
controls (the definition and general provisions), the district
text application, and opportunity analysis. O'Neill went on
to explain the information as contained in Table 1 showing the
amount of land area proposed for this type of use in the I-2
(heavy industrial) zone in relationship to the total acreage
of the city (3,355 acres). The amount of acreage proposed for
this type of use amounts to 15.21 of the total city acreage.
Table 2 shows the amount of land area in I-2 zoning with a
700 -foot separation from residential uses, which amounts to
316 acres, which is 9.51 of the total acreage in the city.
O'Neill went on to explain to Planning Commission members what
is not found in the Buffalo and Big Lake ordinance is a
proposed licensing procedure for this type of use.
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P19nning Commission Minutes - 12/3/91
O'Neill explained that there are two issues that need to be
resolved with City Attorney Paul Weingarden. The first issue
is that all the areae proposed for this type of use are in I-2
(heavy industrial) zoning. Does limiting adult uses to an
industrial zone have the secondary effect of eliminating the
opportunity for adult uses. The other issue is that the major
area of the heavy industrial zoning is under one ownership,
that being Northern States Power. Are there development
limitations that render this area unbu ildable, thus
eliminating it as an opportunity area.
There being no further input from the Planning Commission
members, a motion was made by Cindy Lemm and seconded by Jon
Bogart to continue the public hearing on the proposed
ordinance amendment to the next regular meeting of the
Commission and direct that the City Attorney review the
ordinance and give a recommendation to the Planning Commission
members. Motion carried unanimously.
4. Public Hearing --Consideration of a conditional use permit
allowing expansion of a medical office and clinic in a PZM
(performance zone mixed) zone. ADDlicant, Mortenson
Construction Company.
AND
S. Public Hearinq--Consideration of a variance to the Qarking
design standards by ellowlnq development of a parking lot with
8 stalls less than the total stalls )93)_ required by
ordinance. Applicant, Mortenson Construction Company.
Jeff O'Neill, Assistant Administrator, explained that the
applicants had failed to submit the necessary information for
their conditional use and variance requests to be reviewed by
City staff prior to the establishment of the Planning
Commission agenda.
At this point, O'Neill had not heard from the applicants and
assumed that they were still working on the plans and would
like to have the Planning Commission continue this item until
the next regularly scheduled meeting.
Motion was made by Jon Bogart and seconded by Richard Carlson
to continue the public hearing for consideration of a
conditional use permit allowing expansion of a medical office
and clinic in a PZM (performance zone mixed) zone, and the
public hearing for consideration of a variance to the parking
design standards by allowing development of a parking lot with
8 stalls less than the total stalls (9 3) required by
ordinance. Motion carried unanimously.
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Planning Commission Minutes - 12/3/91
Additional Information Items
1. Consideration of a zoning ordinance amendment modifying B-1
(neighborhood commercial) zoning district regulations by
eliminating convenience store and laundromat as permitted uses
and instead allowing said uses as conditional uses in a B-1
zone. Council action: Approved the ordinance amendment.
2. Consideration of a request to rezone the easterly 9.7 acres of
Auditors Subdivision, Block 17, from B-3 (highway business) to
a combination of PZM (performance zone mixed) and B-2 (limited
business). Applicant, Evangelical Covenant Church. Council
action: Council denied request as per Planning Commission
recommendation. City Council suggested the applicant come
back before the Planning Commission with a new rezoning
request on the same property showing their proposed property
on the westerly most portion of this described property.
3. Consideration of recommending approval of preliminary plat of
the East View residential subdivision. Applicants, Dean
Hoglund and Ren Schwartz. Council action: Approved as per
Planning Commission recommendation.
4. Consideration of a request to rezone a 7 -acre parcel described
as part of Lot 2, Section 18, Township 121, Range 24, Wright
County, Minnesota, from AO (agricultural) to R-1 (single
family) and R-2 (single and two-family) zoning. Applicants,
Dean Hoglund and Ren Schwartz. Council actions Approved as
per Planning Commission recommendation.
S. Consideration of a request to rezone Lot 1, Block 4, River
Terrace, also known as West Side Market, from R-1 (single
family residential) zoning designation to B-1 (neighborhood
business). Applicants, Tom Holthaus and Matt Holker. Council
actions Denied as per Planning Commission recommendation.
6. It was the consensus of the Planning Commission members to set
the next date for the Monticello Planning Commission meeting
for Tuesday, January 7, 1992, 7:00 p.m.
7. The meeting adjourned at 8:16 p.m.
Respectfully submitted,
Gary Anderson
Zoning Administrator
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Planning Commission Agenda - 1/7/92
TABLE OF CONTENTS FOR ITEM 03
I. Staff Report
II. Exhibit A. Studies conducted by other cities on adult uses
and their impact
- Listing
- Summary of studies taken from City of
Rochester report on the impact of adult land
uses
- Indianapolis
- St. Paul - 1976
- St. Paul - 1987
- Phoenix
- Report of the Attorney General's working
group on the regulation of sexually oriented
businesses
III. Exhibit B.
Proposed ordinance amendment
IV. Exhibit C.
Nap - Areae of opportunity, Adult use/
principal
V. Exhibit O.
ordinance requiring licensing of adult use
businesses
VI. Exhibit E.
Resolution adopting findings and conclusions
supporting establishment of saning ordinance
amendments governing adult land uses
VII. Exhibit F.
Planning reports submitted by MAC
STAFF REPORT
Planning Commission Agenda - 1/7/92
3. Consideration of a resolution adopting findings and
conclusions supporting establishment of zoning ordinance
amendments governing adult land uses. (J.O., NAC)
A. REFERENCE AND BACKGROUND:
The following report is modeled after a similar report
provided by MAC (Northwest Associated Consultants, Inc.) for
the City of Buffalo, Minnesota. Much of the language
contained within this report is direct from NAC. Portions
have been revised and updated by City staff to fit the
Monticello situation. City use of the Buffalo report has been
approved by Steve Grittman of NAC.
Early during the summer of 1990, several news stories surfaced
In metropolitan area newspapers which described adult
entertainment type uses being introduced into communities
which were unprepared for such events. Basically, zoning and
licensing provisions in these cities were found to be
inadequate to properly regulate these type of adult
activities. So as not to encounter similar situations in the
Monticello community, on January 14, 1991, the City Council
adopted an ordinance establishing a one-year moratorium on
development of adult land uses and directed that appropriate
zoning and licensing protections be pursued.
in April of 1991 the Planning Commission held a public hearing
on this matter and elected to table further consideration of
regulations being proposed at that time because the proposed
regulations did not address commercial establishments that
currently sell adult-oriented materials as a secondary or
accessory use. Such establishments typically include video
stores that dedicate a certain portion of their inventory to
adult videos and convenience stores that sell adult-oriented
magazines. This report addresses these matters, and proposed
regulations are suggested which will provide controls which
are presently lacking.
PARAMETERS OF REGULATION
Exhibit A of this report contains a detailed listing of
regional, state, and national studies which have been
conducted on adult uses and their impact. These studies
provide a basis for actions which the City of Monticello can
take in tho regulation of such matters. In summary, these
background resources have established the following:
1. Activities defined as adult uses aro protected by the
First Amendment to the United States Constitution.
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Planning Commission Agenda - 1/7/92
2. A community must provide reasonable opportunity for adult
uses to exist. The Renton, Washington Supreme Court case
provides a primary guideline in this regard.
3. Adult uses may produce a secondary Impact or effect which
is judged as negative to the health, safety, and general
welfare of the community; and as a result, these
secondary impacts or effects can be controlled.
4. A community, due to the secondary impact of adult uses,
can regulate such activities and restrict their proximity
to sensitive activity sites which are typically oriented
toward minors.
5. Due also to secondary impacts, a community can maintain
the separation of adult uses from one another.
6. A community has the right to police adult uses to insure
they are operating in a fashion where the secondary
Impacts or effects are mitigated to the extent possible.
Based upon these findings and conclusions from the afore-
mentioned studies, an analysis and application of controls has
been formulated for the City of Monticello.
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ZONING CONTROLS
Definition and General Provisions:
In organizing land use regulations within the bounds allowed
by law, there Is a need to define the topic which is being
addressed. Pages 1 through 5 of Exhibit B of this report
provide such a reference. This material is founded upon
previously established regulations, a primary source being the
City of St. Paul. The proposed definition section of the
zoning ordinance does, however, take a somewhat unique
approach in that principal and accessory adult uses are
distinguished as differing types of activities. This also
sate the format for subsequent zoning as well as licensing
approaches.
The definition section is intended only to identify the types
of activities being addressed. It does not by design provide
regulatory controls. A general provisions section text
amendment is proposed to provide the first element of the use
directives. These provisions are applicable to all adult uses
regardless of the specific district in which they are located.
This material Is also cited in Exhibit B, beginning on page 5,
and should be referenced for specific details. Of note is the
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Planning Commission Agenda - 1/7/92
fact that it is this section which establishes separation
limits between adult uses as well as between adult uses and
other uses where secondary effects cause concern for
compatibility.
District Text Applications
So as to provide required specific opportunity for adult uses
to exist within the city of Monticello, an analysis of the
existing City of Monticello Zoning Ordinance text and map was
conducted. It was determined that the I-2 district provided
the most appropriate zone to accommodate adult uses classified
as principal activity. Only amendments to the I-2 text are,
therefore, proposed to accommodate adult uses/principal.
The present PZM, B-1, B-2, B-3, and B-4 districts were also
evaluated as a possible means to provide opportunity for adult
uses. The possible utilization of the zones noted above as
the basis for neighborhood type commercial use throughout the
community makes the desirability as well as applicability of
these zones accommodating adult uses, which are classified as
principal, questionable. As a result, adult uses within the
B-3 and B-4 districts are suggested to be only the accessory
type.
The I-1 (light industrial) district was also evaluated as a
possible means to provide opportunity for adult uses. The
close proximity of I-1 zones to neighborhood commercial,
residential areae, and school property makes the I-1 zone a
less than desirable zoning district for adult use/principal.
2pvortunity Analysisi
Having once defined the zones in which adult uses are allowed
and subsequently having established their geographic
application, an investigation can be conducted as to the area
and opportunity provided for adult uses. This in essence is
a test to determine whether the Supreme Court guidelines for
necessary opportunity is being provided. Moreover, this
provides the basis of evaluation for the separation provisions
which are outlined in the provisions for adult uses contained
in Exhibit B. To reiterate, these separation concerns are
only applicable to adult uses classified as principal uses.
Table 1, which follows, provides an initial basis for
determining adult use/principal opportunity within the city of
Monticello. Pursuant to concepts previously stated, the I-2
Planning Commission Agenda - 1/7/92
district has been first evaluated as to area as related to the
balance of the city and secondly, the allowed opportunity area
as related to the size of I-2 zoned property.
TABLE 1
CITY OF MON ICELLO
PROPOSED ZONING DISTRICTS
ALLOWING ADULT USE/PRINCIPAL
Total* I-2• Percent
Developable Zoned of
Acres Acres City
2,511 137 5%
Area calculations do not include undevelopable
property owned by NSP, City, Golf Club, School
District.
In general terms, the I-2 district area provides adequate
potential for adult uses.
The general provisions of the proposed zoning ordinance text
amendment which are contained in Exhibit B do, however,
provide limitations on adult uses being located in proximity
to one another (400 feet) as well as between adult uses and
activities judged as sensitive to the secondary effects of
adult use operations (700 feet). The map contained in
Exhibit C identifies adult use opportunity areas with the
restricted distance from residentially zoned areas. This
separation factor is considered to be the fundamental
parameter defining the adult use opportunity within
Monticello.
Carrying the analysis one step further, all the adult use
general provision limitations of the proposed zoning ordinance
need to be addressed. The map contained in Exhibit C adds
"protected" uses to the base map outlining distances from
residentially zoned areas. Table 2, which follows, outlines
the opportunity land available for adult uses and calculations
of this land in relationship to the city as a whole after
subtracting protected areae within the I-2 zone.
Planning Commission Agenda - 1/7/92
TABLE 2
CITY OF NONTICELLO
PROPOSED ZONING DISTRICTS
ALLOWING ADULT USE/PRINCIPAL
I-2 Percent
Separation Zoned Acres of City
700 feet 59 2.35%
From an analysis of information provided by the map in
Exhibit C and Table 2, it has been concluded that the
separation of 700 feet is the minimum distance judged
acceptable. While a distance of 700 feet provides a degree of
protection, an even larger separation would probably be
preferred. Going beyond 700 feet, however, is seen as
potentially jeopardizing what would possibly be viewed as an
acceptable location or sufficiently -sized opportunity area.
The 700 -foot spacing is, therefore, recommended as a
compromise which balances all factors to be considered.
Furthermore, by establishing a separation distance of 400 feet
between adult uses, the opportunity area can be indirectly
enlarged by providing the potential for more adult
establishments within the opportunity area. This added
opportunity will help by assuring the City that sufficient
opportunity for adult uses has been provided.
It should be noted that there is a slight risk in adopting the
I-2 zone as the only area that adult uses as a principal use
can occur. Arguments have been made by adult use
establishments that limiting adult uses to industrial areas or
areas not typically suited for commercial use effectively
eliminates the business viability of the adult use. Or put
another way, the adult use establishments would argue that by
limiting adult uses to the I-2 zone, the City Is unfairly
violating the first amendment rights of the adult use
establishments by limiting the adult uses to those areas where
it would be difficult for the adult use to thrive due to poor
location from a commercial retail traffic standpoint.
Currently, court cases involving this issue related to
regulating adult land uses are in progress. If it is found
that land must be available for adult uses principal in
commercial areas, then the proposed ordinance regulating adult
land uses will need to be amended accordingly.
On the other hand, the City could argue that the I-2 location
provides sufficient commercial opportunity because the
district is near Highway 25 and excellent roadway access to
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Planning Commission Agenda - 1/7/92
the site is available. Furthermore, other businesses are now
located in the I-2 zone that do successfully conduct retail
business; namely, Simonson's Lumber and Martie's Feed Store.
LICENS ING
A final mechanism available to the City of Monticello which
will assist in assuring adult uses are properly operated is
licensing of such establishments. The primary concerns in
this regard are restricted access to minors, the character of
the business operators, and the prevention of criminal
activities. In response to these concerns, a new licensing
section has been drafted as a proposed amendment to the City
Code as Section 13 of Chapter 3. The content of this section
to intended to focus upon assuring proper adult use operation.
These licensing provisions are found in Exhibit D of this
report and again require detailed review. Exhibit D also
contains a proposed license application form.
You will note that the licensing requirement includes a fee of
$250 for adult use principal and a fee of $50 for adult use
accessory. The licensing process also requires a public
hearing for both principal and accessory adult uses.
Following is a list of businesses that sell magazines or rent
videos that would meet the definition of adult entertainment
and would thus need to acquire a license to allow the sale of
such materials as an accessory use. Based upon initial
observation, it appears that all of the businesses noted above
as currently operated would be In compliance with rules
governing operation of adult uses/accessory.
VIDEO STORES
1. A-V Room
Adult video inventory is In a 1' by 6' room
that encompasses lose than 101 of the total
floor area dedicated to video sales. The room
Is completely separate from general floor
arca] however, the door into this room is
always open. Current adult video inventory Is
730, which is 13.51 of the total inventory
(5,400 videos). "No one under 18" sign is In
prominent position over doorway.
Planning Commission Agenda - 1/7/92
Third Street Video
Adult video inventory is in a 12' by 4' room
that encompasses less than 101 of the total
floor area dedicated to video sales. The room
is completely separate from the general floor
area, and a swinging door separates the adult
video room from the general floor area.
Current adult video inventory is 100 videos,
which is 4.3% of the total inventory (2,300
videos).
ADULT MAGAZINES
Tom Thumb Store - South Hwy 25.
A 2' by 8' magazine rack, along with a small stand,
is dedicated for sales of adult magazines,
including Playboy, Penthouse, Hustler, Oui, and
Genesis. All magazines are in an opaque wrapper.
The adult magazine sales area is less than 10% of
the total floor area. No adult videos noted.
2. Holiday Station - West 7th Street
A 2' by 4' magazine rack contains adult magazines,
including Penthouse, Penthouse Forum, and Playboy.
All magazines are in an opaque wrapper. The adult
magazine sales area is less than 100 of the total
floor area. No adult videos noted. Playboy
calendar display is also present.
OTHER
All other convenience stores and video stores currently
operating in town were visited. No adult videos or
magazines were discovered in any other establishment than
those noted above.
CONCLUSION
Based upon the background study conducted of adult uses In the
city, state, and from throughout the nation, there is an
evident need to regulate the secondary effects of activities
classifiod as adult uses. Applying these needs as well as the
legal limitations of control to the city of Monticello has
produced several code amendment proposals which are Intended
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Planning Commission Agenda - 1/7/92
to provide the community with the ability to maintain land use
harmony and protect the general health, safety, and welfare of
the community.
Beyond the general context of the subject and regulations
proposed, specific policy issues related to the following
matters need to be discussed and resolved:
Accessory Uses. Should they be controlled to the extent
suggested?
2. Are there other uses and/or areae which require
protection from secondary effects?
3. Is the separation distance recommended seen as adequate?
4. Is the licensing necessary for adult uses:
a. Principal?
b. Accessory?
B. ALTERNATIVE ACTIONS:
1. Motion to adopt a resolution (Exhibit E) adopting
findings and conclusions supporting establishment of
zoning ordinance amendments governing adult land uses.
The City Planner and the City Attorney have both reviewed
the proposed ordinance. Steve firittman of MAC noted the
slight risk associated with confining adult uses to the
I-2 zone, and he also noted the importance of reviewing
documents prepared by other cities that have measured the
impact of the secondary effects of adult land uses. The
record must show that this Information is the basis for
the need to regulate the secondary effects of adult uses.
Attached for your review is such documentation.
The City Attorney reviewed the zoning ordinance text and
ordinance establishing license requirements for principal
and accessory adult uses. He recommended that the
license fee for adult use principal be lowered from
$1,000 to $250. This is because it has been found by the
court that fees higher than the actual cost to process
the license have been deemed to be unconstitutional, as
high fees met arbitrarily can be used to discourage adult
uses and, thereby, violate first amendment rights.
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Planning Commission Agenda - 1/7/92
Adoption of this resolution would result in placement of
the item on the City Council agenda.
2. Motion to deny adoption of the resolution.
If Planning Commission does not agree with the findings
and conclusions outlined in the resolution, then this
alternative should be selected.
C. STAFF RECOM ENDATION:
Staff recommends that the Planning Commission select
alternative #1.
D. SUPPORTING DATA:
Exhibits A through E; NAC Planning Report.
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EXHIBIT A
EXHIBIT A
BACKGROUND RESOURCES
In analyzing and evaluating adult uses, the primary information
sources involved numerous studies and background materials from
throughout Minnesota and the nation as a whole. These references
which are on file at Northwest's office are:
Report of the Attorney General's Working Group on the Regulation
of Sexually Oriented Businesses, June 6, 1989
Rochester/Olms ted Planning Department Adult Entertainment
Research Report, March 2, 1988
ASPO Planning Advisory Service Report #327: Regulating Sex
Businesses by William Toner, May 1977
Adult Entertainment Businesses in Indianapolis, An Analysis,
February 1984
Relation of Criminal Activity and Adult Businesses; Prepared by
the City of Phoenix Planning Department, May 1979
American Law of Zoning: 17.01
American Law of Zoning: 17.02
Application of Miller's Test by Jury
Surveys of X—Rated Pornographic Activity in Dakota County 1986-
1989, May 20, 1989
Law Enforcement Cooperation; National Coalition Against
Pornography; Inc.
Pornography Changes Attitudes and Actions, June 1989
Pornography Destroys; Dallas Association for Decency
Uncovering Obscene Materials - A Mother's Approach
Adult Entortalnmont, Supplement Study, St. Paul Division of
Planning, 1988
Adult Entortainmont, 40 Acro Study, St. Paul Division of
Planning, 1987
City of Coon Rapids, City Code -Licenses
Director's Report, Adult Entertainment, Department of
Construction and Land Use, City of Seattle, Washington, August
1989
City of Renton, of al, Appollant V. Playtime Theatre, Inc., at
al, 1475 US 4 11 (No. 84-13601
City of Minnoapolis City Codo
chapter III — SD1lmIDt or stvDtEs
Li an effort to prove or dispel the perceptions that adult eatertaimmt
affects other uses in t'eir neighborhoods, several cities have co4
studies of areas which presently contain adnit businesses. 'mese studies
concentrated on chanes in property values and crime rates as a base upon
which to measure both the direct and indirect ids of the.neighboshood.
The study established a 'Control Area" and a 'Study Area•. The
Study Areas chosen were areas which were generally adjacent to residential
areas, contained land zoned commerce and ooatained at least ona adult
entertainment business.
Control Areas were then selected which had characteristics simdlar to the
Study Areas. The Control Areas were also zoned commercially and were adjacent
to residential areas but contained no adult entertainnat business. Ea a
further effort to make the areas as similar as possible, the Control Areas
that were selected had a demographic similarity to the Study Area and
contained buildings of a aimilar age and value as those in the Study Areas.
The importance of seleetIng areae with characteristics as aimilar as possible
was to enable a realistic comparison of what is happening in both areas. If we
make the aam ption that adult entertainment uses have no effect on adjacent
neighborhoods then the trends in property values and crime statistics shomlld
be similar in both areas.
A ccW of the complete reports is attached for your review.
A. Indianaccl.is, Indiana
in 1983 the Indianapolis Division of Plamd undertook a study to detatmine
what affect adult entertainment uses were having on crime rates and property
values where they ware located.
The study purpose was to consider the effect of adult entertainment by the
analysis of: 1. crime reports provided by the Indianapolis police Department
(IPD) 2. the analysis of data reflecting the value of residential properties
within 1000 feet of a@ult entertainment uses, and 3. the results of a random,
national survey of the membership of the American Institute of Real Estate
Appraisers.
1. Crime incidence:
a) The average major crime rate (i.e. erimas per 10,000 population) was
748.53 in the IPD District, 886.34 in the Control Area, 1090.51 in the
Study Area. In areas of the study that contained at least one adult
entertaicmem establiahmant major crimes occur, at a rate that was
:31 higher than the six Control Areas studied not bavirg such
businesses and 461 higher than the Police District at large.
b) Although it was impossible to obtain a discrete rata for sac -related
crimes at the police district level, it was possible to amara rates
bettlean the Control Area and the Study Area. The average sc" alated
crime ratg in the Control Arens cvezt the five year period was 26.2,
while that rate for the Sandy Areas was 46.4.
e) If the ratio of sex-related crimes to major crimes was the aAare
beedean the Cont=vl Area and the Study Area, we'would aspect a
sero -related crime rate of 32.3. The actual rate of 46.4 in the Study
Area is 771 higher than that of the Cm7tral Areas rather than the 231
that would be expected. The result innd4cate:4 the presernoe of abnormal
in*l^a*oes in the Study Areae.
d) Close exmninati= of crime statistics within the Study Areas indicate
a direct earrelat_on between crime and the residential Character of
the neighborhood. Crime frequencies vere %I higl&- the r+esid-1-4 a1.
areas of the study than in the =mord l arena.
e) Set -related crimes occurred four times acre fsequeatly within
residents neigtiborhoods having at least one adult entertainment
business than within commercial apda having adult
entertaiwnent.
2. Real Estate Survey:
a) Although the housing base within the Study Areas was of a disti=t,y
higher value than that of the Control Areas, its value'appreciated at
only oar -half the rate of the Cont_vl Areas' and one-third the rate of
the Canter Tcwnahip's as a whole durirq the period 1979-1982.
b) Pressures within the Study Areas caused the real estate markert within
their boundaries to perform in a mesmer contrary to that within the
Control Areae, Center Tctimship and the County. In a time when the
market say a decrease of 301 in listings, the nmmrtbs of listi.ags
within the Study Areas actually increased slightly.
c) Twice as many houses wase plan -d ea the market at c bstantlally lcwar
prices than would be etpected 0 the Study Area's marizt "-Wj,......—
had been typical.
3. Results of Peal Estate AFpraiseri Surveys
a) The great majority of appraisers (751) who respm-AW to a nntianal
survey of certified real saute appraisers felt that an adult
bookstore located within ane black would have a negative effect on the
value of both residential and eamereial properties. 501 of these
respondents foresaw an immediate depreciation in cress of 101.
b) At a distance of throe blocks, the great majority of respondents (711)
felt that the impact of an adult bodmtare fall off sharply w that
the impact was negligible on both residential and camercw
properties.
c) In answer to a survey questiaa regarding the impact of an adult
bookstore on property values generally, 501 felt that there would be a
aubstantiai-to-merderate negative impact, 301 am little or no impact.
and 201 oar+ the effect as beimq dependent an factors such as the
predominant values (prcperty and acdal) existing in the naighbmtoed,
the develapment starAards imposed on the use, and the ability of an
existing ca mercial node to buffer the impact 9:= other ries.
H. St.-Pavl, Mirmescta (1978)
In 1978 the City of St. Paul cmxbxted a at* to deter -I the effects of
adult entertainment businesses on aeighborbood ptCpBrtI located nearby. The
utilized censusinf�aGion, resi,,enHa, VzCerty value and Cry
statistics betmeen the years of 1970 and 1976. Even ttmagh the study ww
statlaU=cal. in nature, correlations did provide ci=LsnQstautial evidence of the
relationship between adult entertainment and neighbuxbood deterioration. -the
study concluded:
1) The location of adult entertair=ent establishments correlates
significantly (statistically speaking) with neigbborhood
deterioration.
2) Adult entartaiment establ4shmnu • tend to locate in scma4 at
deteriorated areas.
3) Additional relative deterioration of as arra fol I location of an
adult entertainment business in the area.
41 Crime rates relate to estabiiahment of adult entertainment businesses
;4— in a threshold fashion. There is a significantly higher time rate
associated with two or more such businesses in an area than is
associated with only one adult entertainment business.
5) Sousing value also relates to e•tablift *t of admit entertainment
businesses in a threshold fashion. :rare is significantly lass value
associated with three such businesaa in an area than is asaodated
with one or two adult entertainment businesses.
C. St. Paul, Minnesota (1987)
In 1987 the City of St. Paul again decided to link into the adult
entertainment issue. The purpose of this most reeaat inquiry was to deta=dw
if present ordinances were in need of amendmt.
Although the purpose of the report was examine and analyze different
strategies for using zoning in dealing with adult entertainment uses. the
report brought to light another concern - prostitution.
The report could trot prove conclusively that adult entartalsment uses were
directly connected with or supportive of prostitution in the area. It did,
however, point out the fact that prostitution was occurring at an alarming
rate, intensity within a three block area aarrvtmdinq one of St. Paul's most
highly concentrated adult entestainnent area. The ruutport alluded to a
r connection:
•It is unclear to what extent clients of street prnstitutes in this
neighborhood are the same people as the Patrons of the adult busi.msres in
` the neighborhood. AFparently, the two activities are often separate, but
occur in the same neigWx mood due to its 'sea for sale' reputation.'
1) The report also do=ernted that there bad been an i=ease in crime is
the area, according to police records.
2) The report also contained the results of a anvey of St. Paul back
patrons asking their preference for a back loratim and their
perceptions of different locations. In sere to the questim 'Are
there any of tress locations where you would not feel safe coadaetinag
your banking busisess?', 3S8 of the respoadents said that they would
feel unsafe banking at Dale and University (the area of St. Paul where
the largest conce=,ation of adult cftertei= businesses is
located).
D. PboeniY. Arizona
In 1979 the City of Phoeni.:, Aruna presented a a -e* to determine if Beare
was a relationship between arrests for sw=l crimes and locations of adult
businesses. This strdy used the method of establishing "Study' and 'Castrol'
areas for its analysis.
The fdlewirg conclusions were offered:
1) There appears to be a significantly greater difference betseen the
study and cmTt:ol areas .for sex crimes than for either pnperty or
violent (other than se:aral) crimes.
2) It is observed that there are about 401 more property crimps and about
the same of rate non -sexual violent crimes per 1,000 persons in the
Study Areas as caparad to the Control Areae.
3) The sex time rate in the Study Areas was an average of six timet
higher than the rate in the Control Area.
4) whore there is a concentration of adult businesses the difference its
sex offense rates is most significant. Study Area I contained fan (4)
adult businesses lees than 1000 feet away from each other and less
than 500 feet from a residential district. Study Areas II and III
esus contain a single adult busfnss. In Study Area I there were a
higher number of sect offenses earmitted - 64 more crimes than in Study
Area II, and So =re crimes than in Study Area in.
5) when compared to the Cbntrol Area, the sex aims rate per 1,000
residences was war 11 times greater in Study Area I. within Study
Areas II and III, the rates, respectively, aro four and almost three
times as great as in the Control Area.
E. American Soulety of Plnniim Officials (AM) Imports
Also reviewed were reports yrepared by various Pig agencies. Of
particular interest was a report pub" ahed by the American Society of Planning
Officials entitled 'Fegulatitq Sex Busineaaes'. this report is attadied for
y= review. It provides a broad overview of ==ns, methods and taduriques
REPORT OF THE ATTORNEY GENERAL'S
WORKING GROUP ON THE REGULATION
OF SEXUALLY ORIENTED -BUSINESSES
June 6, 1989
HUBERT H. HUMPHREY, III
Attorney General
State of Minnesota
MEMBERS OF THE
i
ATTORNEY GENERAL'S WORKING GROUP
I
ON THE REGULATION OF SEXUALLY ORIENTED 6USKMES
Jam Law
����(���.:
/Wilk 4 �V rI VIWJW ' __ _. .... _ .. _
ports Chief d Dire -
University of Minnesota
Minneapolis, Minnesota
Law School
Minneapolis, MUmesota
Sharon Sayk*ae an
CAtuuBwaman
._NorworathkKadgmAL MUNZ
Minneapolis, Mmmta
Minnesota House of Represantati s
IR/BlaornVgtom Mlmmsote
Ibnorabwa KoWeert Vellenpa
7
Horsarabb Terry AL Dewy
Mirv>asota House of Representatives
DFL/3L Paul, Minrmsoln
Minnesota House of Representatives
IRMew Ulm, Minnesota
wummn YYAson
councb=
Thanes L Faisal
SL Paul, Minnesota
Lindquist & Venm m
I
.I
1
Minneapolis, Minnesota
J
J
J
1
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TABLE OF CONTENTS
`j
INTRODUCTION ......»».„.„..„ ...................„..„ ............
1
SUMMARY „ „ » . „„»»... ...„...».....„....»...»
3
IMPACTS OF SEXUALLY ORIENTED BUSINESSES.
8
Minneapolis Study _ »_ . _ .„ „„ „ ...._
8
SLPaul„...»„.........»».„...............».».„...„.„..„„.....»...
7
1
Indianapolis ... „.....». ......».„..„.....»„».
8
Phoenbc ...„.»... ..„„..„.... »..» .. » ..».... �.» ..
9
Los Angeles .»..... „»»„.10
Concentration of Sexually Oriented Businesses Neolooftod Case Study „
10
� -
Testimony .....„.»„ ......................................». .. _ ».. _.».. _ _ _ _
12
SEXUALLY ORIENTED BUSINESSES AND ORGANIZED CRIME » » . ».
14
r.
PROSECUTORIAL AND REGULATORY ALTERNATIVES
20
OBSCENITY PROSECUTION ........ ............ „ »„_» » » ..„.».»_ _ _„»„ » »_„ .
21
RECOMMENDATIONS ...............»....„.„.
24
I
OTHER LEGAL REMEDIES .......»........... » . „» „_.. „».
29
1
RICO/FORFEITURE»...................„................ _» »„»».» ».... » ».... . ..
28
RECOMMENDATIONS ..„ .............................„.».» .„» ...»
28
1
NUISANCE INJUNCTIONS ..»....„.... „»„.......... » .
28
RECOMMENDATIONS ..............................„» .... »». ...»».» »» .. » ..... »
30
ZONING..»........».................................................. » »... »...„ » ...
30
Supreme Court Decisions .»».......» ...»„....... _.».».„ „... ».
31
J
4.
Standards and Reed for Legal Zoning ......._.»..
35
Documentation to Support Zoning Ordinances
36
Availability of Locations for Sexually Oriented Businesses
37
Oistivice Requlreme ..................
39
Requiring Exisdn.g Businesses to Comply whh New Zoning
40
RECOMMENDATIONS..................
41'
LICENSING AND OTHER REGULATIONS
41
RECOMMENDATIONS ... .................
45
INTRODUCTION
Many comrinunities in Minnesota have raised concerns about the impact of
sexually oriented businesses on their quality of life. It has been suggested that sexually
Ioriented businesses serve as a magnet to draw prostitution and other crimes into a
vulnerable neighborhood. Community groups have also voiced the concern that
sexually oriented businesses can have an adverse effect on property values and
impede neighborhood revitalization. It has been suggested •that spillover effects of the
1 businesses can lead to sexual harassment of residents and scatter unwanted evidence
of sexual liaisons in the paths of children and the yards of neighbors.
1 Although many communities have sought to regulate sexually oriented businesses,
these efforts have often been controversial and equally often unsuccessful. Much
icommunity sentiment against sexually oriented businesses is an outgrowth of hostility
to sexually explicit forms of expression. Any successful strategy to combat sexually
oriented businesses must take into account the constitutional rights to free speech
which limit available remedies.
Only those pomographic materials which are determined to be "obscene' have no
constitutional protection. As explained later in more detail, only that pornography
lwhich, according to community standards and taken as a whole, "appeals to the
prurient interest* (as opposed to an interest In healthy sexuality), describes or depicts
sexual conduct in a "patently offensive way' and 'tacks serious literary, artistic, political
or scientiflc value,' can be prohibited or prosecuted. Miller V. California, 413 U.S. 15,
24 (1973).
Other pornography and the businesses which purvey it can only be regulated
where a harm Is demonstrated and the remedy is sufficiently tailored to prevent that
harm without burdening First Amendment rights. In order to reduce or eliminate the
Impacts of sexually oriented businesses, each community must find the balance
between the dangers of pornography and the constitutional rights to free speech. Each
community must have evidence of harm. Each community must know the range of
legal tools which can be used to combat the adverse Impacts of pomcgraphy and
sexually oriented businesses.
A-
1 On June 21, 1988, Attcmey General Hubert Humphrey III announced the formation
d a Working Group ori the Regulation of Sexually Oriented Businesses to assist public
1 officials and priirate citizens in finding legal ways to reduce the impacts of sexually
oriented businesses. Members of the Working Group were selected for their special
1 expertise in the areas of zoning and law enforcement and included bipartim
representatives of the state Legislature as well as mernbers'of both the Minneapolis
1 and SL Paul city counds who have played critical roles in developing city ordinaries
{ regulating sexually oriented businesses.
The Working Group heard testimony and conducted briefings on the impacts of
sexually oriented businesses on crime and communities and the methods available to
reduce or eliminate these impacts. EAsinsive research was conducted to review
regulation and prosecution strategies used In other states and to analyze the legal
j ramifications of these strategies.
J As testimony was presented, the Working Group reached a coreensus C+at a
comprehensive approach is required to reduce or eliminate the Impacts of sexually
oriented businesses. Zoning and licensing regulations are needed to protect residents
1 from the Intrusion of "combat zone' sexual crime • and harassment into their
neighborhoods. Prosecution of obscenity has played an important role in each of the
Icities which have significantly reduced or eliminated pornography. The additional
threat posed by the Involvement of organized time. I proven to exist: may Justify the
Iresources needed for prosecution of obscenity or require use of a forfeiture or
racketeering statute.
The Working Group determined that It could neither advocate prohibition of all
sexually explicit material nor the use of regulation as a pretext to ellminate all sexually
oriented businesses. This conclusion is no endorsement of pornography or the
businesses. which profit from it The Working Group believes much pornography
conveys a message which Is degrading to women and an afhont to human dignity.
Commercial pornography promotes the misuse of vulnerable people and can be used
by either a perpetrator or a victim to rationalize sexual violence. Sexually oriented
businesses have a deteriorating effect upon neighborttoods and draw Involvement d
organized crime.
' t -2-
Communities are not powerless to combat these problems. But to be most
effective in defending itself from pornography each community must work ham the
evidence and within the taw.' The report of this Working Group is designed to assist
local communities In developing an appropriate and effective defense.
The first section of the report discuses evidence that smaally oriented
businesses, and the materials from which they prole have an adverse Impact on the
surrounding communities. It provides relevant evidence which "communities can
_ use as part. of their Justification for reasonable regulation of sexually oriented
businesses
The Working Group also dismissed the relationship between sexually oriented
businesses and organized crime. Ccncems about these broader effects of sexuaRy
oriented businesses underlie the Working Group's that obscenity
should be prosecuted and the tools of obscenity seized when sexually oriented
businesses break the law.
• The second section of this report describes strategies for regulating sexually
oriented businesses and prosecuting obscenity. The report presents the principal
alternatives, the recommendations of the Working Group and some of the legal Issues
to consider when these strategies are adopted.
The goal of the Attorney General's Working Group In providing this report Is to
support and assist local communities who are ougglUng against the blight of
pornography. When citizens. police officers and city officials are concemed about
crime and the deterioration of neighborhoods, each of us Uves nest door. No
community stands alone.
SUMMARY '
The Attorney General's Working Group an the Regi lil Mon of Smmfly Oriented
Businesses makes the following recommendations to assist communities In proteeting
themselves from the adverse effects of sexually oriented businesses. Some or all of
1 -
1 these reeommerdad= may be needed in any given community. Each community
must decide for itself the nature of the problems it faces and the proposed solutions
1 which would be most fitting.
' t. City and county attorneys' of Icas In the Twin Cftles metropoiitan
area should designate a prosecutor to pursue obscenity pro$ among
and support that prosecutor with specialized training.
- —== • Z The Legislature should consider funding a pilot program to
demonstrate the efficacy of obscenity prosecution and should
1 encourage the pooling of resources between urban and suburban
prosecutor offices by making such cooperation a condition for receiving
_. any such grant funds
3. The Attorney General should provide Informational resources for
' J dry and county Womeys who prosecute obscenity, crimes
j 4. Obscenity prosecutions should begin with cases Involving those
1 j materials which most flagrantly offend community standards
I& The Legislature should amend the present forfeiture sta4ite to
include as grounds for forfeiture ap felonies and gross misdemeanors
pertaining to sollel atlon, Inducement, promotion or receiving proM from
prostitution and operation of a "disorderly house'
8. The Legislature should consider the potential for a RIC041ke
statute with an obscenity predleate.
7. prosecutors should use the public nuisance statute to enjoin
operations of sexually orlented businesses which repeatedly violate
laws pertaining to prostiturtlon, gambling or operating a disorderly
I house.
1 a. Communitles should document findings of adverse secondary
I ' effects of sexually oriented businesses prior to enacting zoning
regulations to control these uses so that such regulations can be upheld
if challenged in court
t
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9. To reduce the adverse effects of sexually oriented businesses,
? communities should adopt zoning regulations which set distance
requirements between sexually oriented businesses and sensitive uses,
including but not limited to residential areas, schools, child care
facilities, churches and parks.
10. To reduce adverse Impacts from concentration of these
businesses, communities should adopt zoning ordinances which set
distances between sexually oriented businesses and between sexually
oriented businesses and liquor establishments, and should consider
restricting sexually oriented businesses to one use per building.
11. Communities should require existing businesses to comply with
new zoning or other regulation of sexually oriented businesses within a
Ireasonable time so that prior uses will conform to new taws.
12. Prior to enacting licensing regulations, communities should
document findings of adverse secondary effects of sexually oriented
businesses and the relationship between these effects and proposed
regulations so that such regulations can be upheld If challenged In
court.
13. Communities should adopt regulations which reduce the likelihood
of criminal activity related to sexually oriented businesses, Including but
not limited to open booth ordinances and ordinances which authorize
denial or revocation of licenses when the licensee has Committed
offenses relevant to the operation of the business.
.s.
I
1 14. Communities should adopt regulations which reduce exposure of
1 the community and minors to the blighting appearance of sexually
oriented businesses, Including but not limited to regulations of signage
and exterior design of such businesses, and should enforce state law
requiring sealed wrappers and opaque covers on sexually oriented
material
1 . IMPACTS OF SEXUALLY ORIENTED BUSINESSES
1 The Working Group reviewed evidence from studies conduced in Minneapolis and
St. Paul and in other cities throughout the country. These studies, taken together,
provide compelling evidence that sexually oriented businesses are associated with high
1 crime rates and depression of property values. In addition, the Working Group heard
testimony that the character of a neighborhood can dramatically change when there is
a concentration of sexually oriented businesses adjatcent to residential property.
Minneapolis Studv
In 1880, on direction from the Minneapolis City Council, the Minneapolis Crime
Prevention Center examined the effects of sex-orlented and alcohol -oriented adult
entertainment upon property values and acme rates This study used both simple
regression and multiple regression statistical analysis to evaluate whether there was a
causal relationship between these businesses and neighborhood blight
The study concluded that there was a close association between sexually oriented
1 businesses, high crime rates and low housing values in a neighborhood. When the
data was reexamined using control variables such as the mean Income In the .
neighborhood to determine whether the association proved causation. it was unclear
whether sexually oriented businesses caused a decline in property values. The
I Minneapolis. study concluded that sewalty oriented businesses concentrate In areas
1 which are relatively deteriorated and, at most, they may weakly contribute to the
continued depression of property values.
.c
1 However, the Minneapolis study bund a much stronger relationship between
sexually oriented businesses and crime rates. A crime index was constructed including
robbery, burglary, rape and assault The rate of crime in areas near sexually oriented
businesses was then compared to crime rates in other areas. The study drew the
following conclusions:
i 1. The effects of sexually oriented businesses on the crime rate Index is
r
positive and significant regardless of which control variable is used
2 Sexually oriented businesses continue to be associated with higher I
1 crime rates, even when the control variables' Impacts are considered
simultaneously.
According to the statistical analysis conducted In the Minneapolis study. the
addition of. one sexually oriented business to a Census tract area will cause an increase
in the overall crime nate Index in that area by 9.15 crimes per thousand people per year
even if all other social factors remain unchanged.
St. Pau
In 1978, the St Paul Division of Planning and the Minnesota Crime Control
Planning board conducted a study of the relationship between sex-odented and
alcohol -oriented adult entertainment businesses and neighborhood blight This study
looked at crime rates per thousand and median housing values over time as Indices of
neighborhood deterioration. The study -combined sex -oriented and alcohol-orlented
businesses. so Its conclusions are only suggestive of the effects of sexually, oriented
businesses alone. Nevertheless, the at* reached the following important
conclusions:
1. There Is a statistically significant correlation between the location of
adult businesses and neighborhood deterioration.
.7.
2. Adult entertainment establishments tend to locale In somewhat
deteriorated areas.
3. Additional relative deterioration of an area follows location of an adult
business in the area
4. There Is a significantly higher cite nits associated vAh two such
businesses in an ares than is associated with only one adult business.
S. Housing values are also signftandy lower in an area where there are
three adult businesses than they are in an area with only one such business.
SimBar conclusions about the adverse Impact of sexually oriented businesses on
the community were reached in studies conducted in cities across the nation.
lndlansoolis
In 1883, the City cf Indianapolis researched the relationship between sexually
oriented businesses and property values. The study was based on data from a
national random sample of 20 percent of the American of Real Estate
Appraisers•
The Study found the Wowing:
1. The appmisers overwhelmingly (60%) felt that an adult bookstore
located In a nelghborhood would have a negative Impact an residential
property values within one block of the site.
2. The real estate experts also overwhelmingly (71%) believed that there
woudd be a detrimental effect on commercial property values within the same
one block radius.
1 3. This negative Impact dissipates as the distance from the site increases.
.. so that most appraisers believed that by three blocks away from an adult
bookstore, ft's impact on property values would be minimal.
j Indianapolis also studied the relationship between crime rates and sexually
I Oriented bookstores, cabarets, theaters, arcades and massage parlors. A 1984 study
j entitled "Adult Entertainment Businesses in tndi wwpdis' found that are with sexually
j Oriented businesses had higher crime rates than si 7ft are with no sexually oriented
- businesses
1. Major onrnes, such as criminal horns dde, rape, robbery, assault,
burglary, and larceny, occurred at a rate that was 23 percent higher In those
are which had sexually oriented businesses.
2. The sex-related crime rate, Inducting rape, indecent exposure, and child
.1 molestation, was found to be 77 percent higher in those are with sexually
J oriented businesses.
Phoenix
The Planning Department of Phoenix. Arizona published a study in 1978 entitled
"Relation of Criminal Activity and Adult Bushesses." This study showed that arrests for
sexual crimes and the faced= of sexually oriented bushesses were directly related.
The study compared three areas with sexually oriented businesses with twee control
areas which had similar demographic and land use dtaractertstim but no sexually,
oriented establishments. The study found that,
1. Property crimes were 43 percent higher In those areas which contained
a sexually oriented business.
2. The sex crime rate was 500 percent higfter In those erees with sexually
oriented businesses.
► I . The study area with the greatest concentration of sexually oriented
businesses had a sex crimes rate over 11 times, as large as a similar area
1 having no sebmally oriented businesses.
Los Angeles
_ A study released by the Los Angeles Police Department In 1984 supports a
relationship between sexually oriented businesses and rising cane uses. This study is
less definitive, since it was not designed to use similar area as a control. The study
indicated that there were 11 sexually oriented adult establishments in the Hollywood,
California, area in 1969. By 1975, the number had grown to 88. During the same time
period, reported incidents of "Part I' crime M.. homicide, rape, aggravated assault.
`l robbery, burglary, larceny and vehicle theft) hcreased 7.6 percent in the Hollywood
area while the rest of Los Angeles had a 4.2 percent increase. "Part II' arrests (I.e.
t forgery, prostitution, narcotics, liquor law violations, and gamblho increased 3.4
! percent in the rest of Los Angeles, but 48.4 percent in the Hollywood area.
e Concentration of Sexualtv Oriented Businesses
1 Neighborhood Case Studv
In St. Paul, there is one neighborhood with has an especially heavy concentration
of sexually oriented businesses. The blocks adjacent to the iraersea(on of University
Avenue and Dale Street have more than 20 percent of the city's adult uses (4 out of 19),
including au of St. Paul's sexually oriented bookstores and movie theaters.
1 The neighborhood, as a whole, shows signs of significant distress, Inducting the
highest unemployment rates in the city, the highest percentage of famines below the
poverty line In the city, the lowest median family Income and the lowest percertage of
high school and college graduates. (See 40GAcre Studv on Adult Entertainment, SL
1 Paul Department of Planning and Economic Developmert, Division of Planning, 1987 at
p. t8.) It would be difficult to attribute these problems In any simple way to sexually
Joriented businesses.
However, it is likely that there is a relationship between the ,,,...,,,; .::ort of
sexually oriented businesses and neighborhood crime rates. The St. Paul Police
r Department has determined that St. Paul's street prostitution is concentrated in a
'.street prostitution zone* immediately adjacent to the intersection where the sexually
oriented businesses are located. Police statistics for 1986 show that of 279 prosdt tion
arrests for which specific locations could be identified, 70 percent (195) were within the
"street prostitution zone.' Moreover, all of the locations with 10 or more arrests for
prostitution were within this zone.
The location of sexually oriented businesses has also created a perception In the
community that this is an unsafe and undesirable part of the city. In 1983. Western
State Bank. which is currently located across the street from an adult bookstore, hired a
research firm to survey area residents regarding their preferred location for a bank and
their perceptions of different locations. A sample of 305 people were given a list of
locations and asked, "Are there any of these locations where you woidd not feel safe
conducting your banking business?'
No more than 4 per cent of the respondents said they would feel unsafe banking at
other locations in the city. But 36 percent said they would feel unsafe banking at Dale
and University, the comer where the -sexually oriented businesses are concentrated.
The Working Group reviewed thq 1987 40 -Acre Study on Adult Entertainment
prepared by the Division of Planning in St. Pam's Department of Planning and
Economic Development This study summarized testimony presented to the Planning
Commission regarding neighborhood problems:
Residents In the University/Dale area report frequent sex-related harassment
by motorists and pedestrians in the nelghborhood. Although It cannot be
proved that the harassers are patrons of adult businesses, it Is reasonable to
suspect such a connection. Moreover, neighborhood residents submitted
evidence to the Planning Commission In the forth of discarded pornographic
literature allegedly found In the streets, sidewalks, bushes and &" near
adult businesses. Such literature Is sexually very explick, even an the cover,
Z -11-
and under the present circumstances becomes available to minors even
though its sale to minors is prohibited.
Testimony
The Working Group heard testimony that a concentration of sexually oriented
businesses has serious impacts upon the surrounding neighborhood. The Working
Group heard that pornographic materials are lett in adjacent lots. One person reported
to the police that he had found 50 pieces of pornographic material in a dwrch parking
lot near a sexually oriented business. Neighbors report finding used condoms on their
lawns and sidewalks and that sex ads with prostitutes ocarr on streets and alleys in
plain view of families and children. The Working C-sroup heard testimorry that arrest
rates understate the level of crime associated with sexually oriented businesses. Many
robberies and thefts from "johns' and many assaults upon pmstftMs are never
reported to the police.
Prostitution also results in harassment of neighborhood residents. Young girls on
i their way to school or young women on their way to work are often propositioned by
e johns. The Flick theater caters to homosexual trade, and male prostitution has been
noted In the area. Neighborhood boys and men eine also accosted on the street A
police officer testified that one resident had informed him that he found used condoms
In his yard all the time. Both his teenage son and daughter had been soltdted on their
way to school and to work.
The Working Group heard testimony that in the Frogtown neighborhood,
Immediately north of the UniversityDals Intersection in St Paul, there has been a
change over time in the quality of life since the sexually oriented businesses moved Into
the area. The Working Group heard that the neighborhood used to be primarily middle
class. did not have a high crime rate and did not have prostitution. St Paul police
officers testified that they believed the sexually oriented businesses caused
neighborhood problems, particularly the increase In prostitution and other crime rates.
Property values were suffering, since the presence of high crime rates made the area
less desirable to people who would have the ability and Inclination to Improve their
homes.
The Working Group made some inquiry to determine to what extent smaller cities
outside the Twin Cities Metropolitan area suffered adverse impacts of sexually oriented
businesses. The Working Group was informed by the chiefs of police of Northfield and
Owatonna that neither city had adult boolbtores or similar sexually oriented
businesses. Police chiefs in Rochester and Winona stated that sexually oriented
businesses in their communities operate in non-residential areas In addition, there is
no "conce.rb n' problem. In Rochester, there are two facilities in a shopping mail
and a single bookstore in a depressed commercial/bushess neighborhood. The
Winona store is located In a downtown business area. The police chiefs stated that
they had no evidence of increased crime rates In the area adjacent to these facilities.
They had no information as to the effect which these businesses might have on kraal
property values.
h1prmadon presented to the Working Group indicates that community impacts of
sexually oriented businesses are primarily a function of two variables, proximity to
residential areas and concentration. Property values are directly affected within a smell
radius of the location of a sexually oriented business. Concentration may compound
depression of property values and may lead to an increase in crime sufficient to change
the quality of life and perceived desirability of property in a neighborhood.
The evidence suggests that the Impacts of sexually oriented businesses are
exacerbated when they are located near each other. Police officers testified to the
Working Group, that "vice breeds vice.' When sexually oriented businesses have
multiple uses (i.e. theater, bookstore, nude dancing, peep booths), one building can
have the impact of several separate businesses. The Working Group heard testimony
that concentration of sexually oriented businesses creates a "war zone' which serves
as a magnet for people from other areas who "know' where to find prostitutes and
sexual entertainment. The presence of bars in the Immediate vicinity of sexually
oriented businesses also compounds impacts upon the neighborhood.
•13-
I The Attorney General's Working Group believes that regulatory strategies designed
1 to reduce the concentration of sexually oriented businesses, insulate residential areas
from them, and reduce the likelihood of associated criminal activity would constitute a
rational response to evidence of the impacts which these businesses have upon local
communities.
I
SEXUALLY ORIENTED BUSINESSES AND ORGANIZED CRIME
Infiltration of organized crime into sexually oriented businesses reinforces the need
for prosecution of obscenity and requires specific regulatory or law enforcement tools.
The Working Group attempted to assess both the present and potential relationship
between organized crime and sexually oriented businesses.
The Working Group heard testimony from a witness who had been prosecuting
obscenity cases for the past thirteen years that marry sexually oriented businesses have
cut -of -town absentee owners. If the manager of a local business is prosecuted on an
obscenity charge, his testimony may make it possible to pierce the corporate veil and
Identify the true owners.
The Working Group heard testimony thea an organized alma entity may operate
somewhat like a franchisor. In order to stay in business, the local manager of a
sexually oriented business may have to pay fees to organized crime. The makers and
wholesalers of pornographic materiels are also likely to be Involved with organized
crime.
1 The Working Group conducted additional research to assess the relationship
I between sexually oriented businesses and organized crime. The Working Group was
informed by prosecutors of obscenity that there were many ways in which organized
crime entities could derive a benefit from sexually oriented businesses. There Is a large
profit margin In pornography. The presence of coin-operated peep booths provides an
opportunity to launder money. Cash obtained from illegal acuities, such as
prostihAlon or narcotics, can be explained as the income of peep booths. Cash
Jincome can also escape taxation, In violation of taw.
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I Although it is dear that organized crime is involved to some degree in the
pornography industry, various sources react different conclusions as to the depth and
extent of this involvement Part of the difference in assessment is based on differences
in the way the term "organized crime' is defined. Authorities who restrict their
definition of organized crime to the highly organized ethnic hierarchy known as La Cosa
Nostra (LCN) tend to find fewer links than those who define the tern to include other
organized criminal enterprises. Where there has been intensive law enforcement and
prosecution, it is more likely that linkage between sexually oriented businesses and
organized cruse figures will be evident
The Working Group has adopted the definition of organized crime contained in
Minnesota's Report of the Legislative Commission on Organized Crime (1975). The
Working Group is concemed about the relation between sexually oriented businesses
and any "organized criminal conspiracy of two or more persons that is continuous in
nature, involves acttvity generally crossing jurisdictional Pines and results in third -party
profit' The threat from organized crime Includes, but is not limited to involvement of
national crime enterprises such as LCN.
' Recent federal indictments of James G. Hafiz in Indiana for perjuuyl/ and of
1 Harry V. Mohney in Michigan for tax evasion suggest a possible connection between
organized crime and a Minnesota pornography business. Hafiz, a Minnesota resident
who Is an agent of Beverly Theater, Inc., the company which operated the Faust
Theater in St. Paul,_1 has been linked to Mohney, a major pornographer based in
Michigan. The Indictments allege that Mohney caused the incorporation of the
company which operated the Faust, that a corporation owned by Mohney paid for
Improvements to the Faust and that Mohney is, in fact, the owner of numerous sexually
oriented businesses, Including the Faust (age United States v. Hafiz, Indictment, No.
IP 8e -102 -CR (S.D. Ind., Sept. 15, 1988); United States v. Mohnev, Indictment, No.
88.50082 (ED. Mich. Sept. S. 1988)).
1/ Hafiz was acquitted of the perjury charges. SL Paul Pioneer Press. Jan. 11, 1989, P.
10A.
2/ The City of St. Paul bought out the Faust for $1.8 million, dosing the entertainment
complex on March 7, 1989.
.I
Mohney, in tum, has been linked with national organized crime enterprises. A 1977
report of the United States Justice Depanment stated:
It is believed that Harry V. Mohney of Durand, Michigan, is one of the largest
dealers in pornography in the United States ... He is alleged to have a dose
association with the LCN. Columba and the LCN DeCavalcame, both of
which are very influential in pornography in the eastern United States In
Michigan, Mohney is known to hire individuals with organtred crane
associations to manage his businesses. His businesses and corporations
consist of 60 known adult bookstores, massage parlors, an theaters. adult
drive-in movies, go-go type lounges avid pomographic warehouses in
Michigan, Indiana, Illinois, Kentucky, Tennessee, Wisconsin, khwa, Ohio and
California. He is involved in the financing and production of pornographic
movies, magazines, books and newspapers. He also directs the importation
I ' and distribution of his own and other pornographic publications to retar7 and
wholesale outlets throughout the United States and Canada ... He has a
working relationship with DeCavalcante's representative Robert DiBemardo
and has met with Vito Giacalone and Joseph Zer[Ui of the LCN Detroit. He
has to cater to both to operate in Michigan.
lU.S. Justice Dep't, Orqanized Crime Involvement in PamooraohV, reprinted in the
e Attomey General's Comn'n on Pornography (hereinafter "Pornography Commisslonl,
2 Final Report at 1229-30 (1986).
Organized crime has the potential to Infiltrate Minnesota's pamagraphy, Industry.
Evidence on a national level highlights the vulnerability of sexually oriented businesses
to criminal central. A number of sources have reported that there is a connection
between organized crime and the pornography industry.
The Pornography Commission reported that the Washington, D.C., Metropolitan
Police Department "determined that traditional organized crime was substantially
Involved in and did essentially control much of the major pornography distribution in
the Untied States during the years 1977 and 1978.' 2 Foal Report at i044.43. The
Washington, D.C., study "further concluded abet the combination of the large amounts
of money involved, the Incredibly low priority obscenity enforcement had within police
departments and prosecutors' offices In an area where manpower IriMulve
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investigations were essential for success, and the imposition of minimal fines and no
jail time upon random convictions resulted in a low risk and high profit endeavor for
organized crime figures who became involved in pornography.' Id. at 1045.
The FBI concluded in 1978:
Information obtained ... points out the vast control of the muftl-mMlon dollar
pornography business in the United States by a few individuals with direct
connections with what is commonly latown as the organized crime
establishment in the United States, specifically, La Cosa Nostra . . .
Informadon received from sources of this bureau indicates that pomography
is (a major) income maker for La Cosa Nostra in the United States behind
gambling and narcotics. Although La Cosa Nostra does not physically
oversee the day-to-day workings of the majority of pornography business in
the United States, it is apparent that they have "agreements' with those
Involved in the pornography business in allowing these people to operate
Independently by paying off members of organized crime for the privilege of
being allowed to operate in certain geographical areas
Id. at 1048 (quoting Federal Bureau of Investloation Recant Recardino the Extent of
i Orqanized Crime Develooment in Pomoarachy. 8 (1878)).
A brief survey of 59 FBI field offices conducted in 1985 found that about
three-quarters of those offices could not verity that traditional organized crime families
were involved in the manufacture or distribution of pornography. Several offices did,
however, report some involvement by members and associates of organized crane. Id.
at 1048-47.
Stanley Ronquest, Jr., a supervisory FBI special agent for traditional organized
crime at FBI headquarters In Washington, D.C., was Interviewed by Attomey General
staff. Ronquest stated that LCN has not been directly Involved in the pornography
industry In the last ten years. However, a farmer FBI agent told the Pornography
Commission:
in my opinion, based upon twenty-three years of experience in portography
and obscenity investigations and study, it is practically impossible to be in
the retail end of pornography industry (today) without dealing In some
-17•
fashion with organized crime either the mafla or some other facet of non-
(� mafla never -the -less highly organized crime.
Id. at 1047-48.
Thomas Bohling of the Chicago Police Department Organized Crime Division, Vice
Control Section, told the Pornography Commission that "it is the belief of sate, federal -
and local law enforcement that the pornography industry is controlled by organized
crime families. If they do not own the business outright, they most certainly extract
street tax from independent smutedp dlers.' Id. at 1048 (emphasis in original).
The Pcmography Commission stated that it had been advised by Los Angeles
Police Chief Daryl F. Gates that "organized crime families from Chicago, New York.
New Jersey and Florida are openly controlling and directing the major pornography
operations in Los Angeles.' Id.
The Pornography Commission was told by Jimmy Fraaanno, described by the
Commission as a member of LCN, "that large profits have kept organized crime hea4y
Involved in the obscenity industry.- Id. at 1052 Fredanno testified that '15% of the
tamales are involved in one way or another in pornography.... It's too big. They just
won't let it go." Id. at 1052.53.
The Pornography Commission concluded that "organized crime in its traditional
LCN forms and other forms exerts substantial influence and control over the obsmrdty
industry. Though a number of significant producers and distributors are not members
of LCN families, all major producers and distrlbutnra of obscene material are highly
organized and carry out illegal activities with a great deal of sophistication.' !g, at 1053.
The Pornography Commission reported that Michael George Theufs, reportedly
one of the largest pornographers in the United States during the 1970's was,convicted
in 1979 of RICO (Racketeer Influenced and Corrupt Organizations) violations inducting
murder, arson and extortion. The Connmission also reported examples of other crimes
associated with the pornography Industry. Including prest[E to and other sexual
Z
abuse, narcotics distribution, money laundering and tax violatlaru, copyright violations
and fraud. Id. at 1056-65.
Although the Pornography Commission report has been criticized for relying on the
testimony of unreliable informants in drawing its conclusions finding inks between
pornography and organized crime (See Scott, Book Reviews. 78 J. Crim. L &
Criminology 1145, 1158.59 (1888)), its conclusions find additional support in recent
state studies.
The California Department of Justice recently reported that:
California's primary in the adult videotape Industry is of law enforcement
concem because the pornography business has been prone to organized
crime involvement. Immense profits can be realized through pornography
operations, and until recently, making and distributing pornography involved
a relatively low risk of prosecution. But more aggressive law enforcement
efforts and turmoil within the pornography business has destabilized Cie
smooth flow of easy money for some of its mayor operations ....
As long as.control over pornography disvibutlon is contested, and organized
crime figures Continue their involvement In the business, the.pomography
Industry will remain of interest to law enforcement officials statewide.
Bureau of Organized Crime and Criminal Intelligence, Department of Justice. State of
California, Organized Crime in California 1987: Annual Reocrt to the Califomia
Legislature at 59-62 (1988).
The Pennsylvania Crime Commission similarly determined in a 1980 report to
most pornography stores examined were affillated or owned by one of three men who
had des with "nationally known pornography Wes who are members or associated of
organized crime famlies.* Pennsylvania Crime Commission, A Decade of Organized
Crime: 1980 Report at 119.
For example, Reuben Sturman, a leading pornography Industry " based in -
Cleveland, was reported by the FBI In 1978 to have built his empire with the assistance
of LCN member DiSemardo. Federal Bureau of Investiaadon Rewe Regarding the
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e
Extent cf Crqanized Crime Involvement in Porncgaphv (1978). Sturman, who
reportedly controls half of the SS billion United States pornography industry. was
recently indicted by a federal grand jury in Las Vegas for racketeering violations and by
a federal grand jury in Cleveland for income tax evasion and tax fraud. Newsweek,
August S. 1968, p. 3.
Evidence of the vulnerability of sexually oriented businesses to organized crime
involvement underscores the importance of criminal proseaffiori of these businesses
when they engage in illegal activitles, including distribution of obscenity and support of
prostitution. Prosecution can increase the risk and reduce the profit margin of
conducting illegal activities. It may also disclose organized crime association with local
pornography businesses and increase the costs of criminal enterprise in Minnesota.
In addition to prosecution, forfeiture of property used in the 6egal activities related
to sexually oriented businesse-. can cut deeply into profits. Regulation to permit license
revocation for conviction of subsequent crimes may also expose and increase control
over criminal enterprises related to sexually oriented businesses
PROSECUTORIAL AND REGULATORY ALTERNATIVES
The regulation of many sexually oriented businesses, Ike other businesses dealing
in activity with an expressive component, is circumscribed by the Fust Amendment of
the United States Constitution.3l Nonetheless. the Fust Amendment does not impose
a barrier to the prosecution of obscenity, which is not protected by the First
Amendment. or to reasonable regulation of sexually oriented businesses If the
31 The Fust Amendment provides:
Congress shall make no taw respecting an establishment of
religion, or prchit:aing the free exercise thereat. or abridging the
freedom of speech. or of the press, or the right of the people peaceably
to assemble, or to petition the government for a redress of grievances.
The constittrrtlanal guarantee of freedom of speech. Olen the basis for challenges to
regulation of sexually oriented businesses. restricts state as well as federal actions.
See, ek., Fiske v. Kansas, 274 U.S. 380, 47 S. Ct 6M (1927).
J�
20.
regulation is not designed to suppress the content of. expressive activity and is
sufficiently tailored to accomplish the regulatory purpose.
The Working Group believes that communities have more prosecutorial and
regulatory opportunities !flan they may currently recognize. The purpose of this section
of the Report is to identify and recommend entorcernent and regulatory opportunities.
Of course, each community must decide on its own how to balance its limited
resources and the wide variety of competing demands for such resources
1. OBSCENITY PROSECUTION
Obscene material Is not protected by the Fust Amendment. Miller v. California.
413 U.S. 15, 93 S. Ct 2607 (1973). The sale or distribution of obscene material in
Minnesota is a criminal offense. The penalty was recently Increased to up to one year
1 in jail and a $3,000 Me for a first offense, and up to two years in jag and a $10,000 Me
J for a second or subsequent offense within five years. Minn. Stat S 817.241, subd. 3
(1988).4/
The Working Group believes that Minnesota's obscenity statutes are adequate to
lprosecute and penalize the sale and distribution of obscene materials. However,
historically, widespread obscenity prosecution has not oca,rred.
The Working Group believes this Is not because the sale or distribution of obscene
publications In Minnesota is rare, but because prosecutors have been reluctant to bring
obscenity charges, because of limited resources, difficulties faced when prosecuting
obscenity, and because obscenity has historlcal y been considered a victimless crime.
41 The prior penalty was a fine only — up to $10.000 for a first offense and up to
$20.000 for a second or subsequent offense. Minn. Stat 1617.241. subd. 3 (1986).
Obscenity arrests are so Infrequent that incidents involvutg possible violations of
i
section 617.241 are not separately compiled by the Minnesota Bureau of Criminal
P Comprehension. See Bureau of Criminal Aogrehension. 1987 Minnesam Annual
Report an Crime, Missing umaren ano bureau of uriminal Aporehenston Acttvmes.
1 .21.
Obscenity, however, should no longer be viewed as a victimless crirne.s/ There is
mounting evidence that sexually oriented businesses are, as described earlier in this
report, often associated with increases in aims races and a decline in the quality of life
of neighborhoods in which they are located. Further, as disc: is previously, when
there is no prosecution of obscenity, large cash profits make pornographic operations
very attractive to members of organized crime. The Working Group thus believes that
prosecution of obscenity, particularly cases involving children, violence or bestiality,
should assume a higher priority for law enforcement officials.
In addition, many of the difficulties faced when prosecuting obscenity can be
addressed by adequate training and assistance. In order to prove that material is
obscene, a prosecutor must prove:
m that the average person, applying contemporary camffwity
standards would find that the work, taken as a whole, appeals to the prurient
interest In sex;
(i) that the work depicts sexual conduct ... in a patently offensive
manner, and
(ii) that the work, taken as a whole, Lacks serious literary, artistic,
poiltfcal, or scientific value.
Minn. Stat 1617241. subd. 1(a)(1 -ii) (1988). This stammy standard was drawn to be
consistent with constitutional standards set forth In Miller, suwm
S/ Two blue ribbon commissions have reached different conclusions regarding the
1 harmfulness of sexually explicit material to Individuals. A presiderft Commission
on Obscenity and Pornography concluded In 1970 that there was no evidence of
"social or individual harms' caused by sexually explicit materials and, therefore.
sal
"federal, state and local legislation prohibiting the e, exhibition, or distribution of
1 sexual materWs to consulting adults should be repealed.' The Report of the
I Ccmm'n on Obscenity_ and omogrephy at 57-8 (Bantam Psperoacx ea. 1870).
However. m IM. the Attorney tienera, s t,,ommrn slop on Pornography concluded
J that "sexually violent materials ... bear ... a causal relationship to antisocial acre
of sexual violence . . . [and mat) the evidence supports the conclusion that
substantial exposure to [non-violent] degrading material Increases the likelihood for
J an individual [b) ... commit an act of sexual violence or sexual coercion.' Attorney
n
General's Comm'n on Pornography, i Final Report at 326,333 (1886).
To be sure, prosecutors face a number of hazards in prosecuting obscenity. They
include inadequate training in this specialized area of law, attempts by defense
attomsys to remove jurors who rind pomography offensive, the offering into evidence of
polls and surveys through expert testimony to prove tolerant community standards,
efforts to guide jurors with jury instructions favorable to the defense, and
discouragement with unsuccessful prosecutions.
But the hazards can be overcome. Alan E Sears, former executive d'lr c of the
U.S. Attorney General's Commission on Pornography has stated:
Prosecutors can successfully obtain obscenity convictions in virtually
any jurisdiction in the United States. in order to obtain a conviction, it is
incumbent upon a prosecutor to prepare well, know the law, not fop into the
"one case syndrome' trap, obtain a representative jury through proper voir
dire, keep the fora of the trial on the unlawful conduct of the defendant, and
obtain legally sound instructions.
Sears, "How To Lose A Pornography Case,' The CDL Retorter (n.d.).
The Working Group heard testimony from prosecutors who have pursued
obscenity cases nationally regarding effective ways to prosecute obscenity cases.
Materials can be bought or rented, rather than seized under warrant in the absence of
survey data, community standards can be left to the wisdom of the jury. In that case,
experts should be prepared to testify H the defense attempts to matte a statistical case
that the material is not obscene. Prosecution of obscenity is also likely to be most
effective if initial prosecutions focus on materials which are patently offensive to the
community, such as those involving children, violence or beastlality.
The experience of other cities has demonstrated that vigorous and sustained
enforcement of obscenity statutes can sharply reduce or virtually eliminate sexually
oriented businesses. Cincinnati, Omaha, Atlanta, Charlotte, Indianapolis and Fort
Lauderdale were cited to the Working Group as examples of cities which have
Z
1
successful programs of obscenity prosecution -S/ The Working Group encourages
1 prosecutors to take advantage of increasing raining opportunities and other assistance
t for obscenity prosecutions and to reassess the desirability of increased enforcement
The Working Group is pleased to note that county attorneys and law enforcement
f
groups in Minnesota have recently held fonts and seminars on obscenity law .
enforcement and prosecution. The U.S. Justice Department's National Obscenity
Enforcement Unit offers assistance to local prosecutors. Including sample pleadings,
' indictments, search warrants, motions, responses and trial memoranda.W.
RECOMMENDATIONS
1. City and county attorneys' offices In the Twin Cities metropolitan
area should designate a prosecutor to pursue obscenity prosecutions
and support that prosecutor with specialized tradntrtg.
2. The Legislature should consider funding a pilot program to
demonstrate the efficacy of obscenity prosecution and should
encourage the pooling of resources between urban and suburban
prosecuting offices by making such cooperation a condition of receiving
any such grant funds.
S/ Memorandum to Jim Sellus, executive assistant to St Paul Mayor George Latimer
(prepared by St. Paul Department of Plannirt and Economic Development) (July 5,
1989); see also Waters, 'The Squeeze on Sleaze.' Newsweek. Feb. 1. 1988, at 45
("After more than 10 years of levying heavy fines arrests. Atlanta has
t won national renown as the city that cleaned up pornography.).
J The Address of the National Obscenity Enforcement Unit Is U.S. Justice
Department, 10th 8 Pennsylvania Ave. N.W., Room 2218, Washington, O.C. 20530.
t Its telephone number Is 202.833-3780. Assistance is also ave8ab11e from Citizens for
J Decency through Law, Inc., 2845 E. Camelback Rd., Suite 740, Phoenix, AZ 85016.
It is the publisher of "The Preparation and Trial of an Obscenity Casa: A Guide for
the Pros ng Attorney.' Its telephone number is 602,181-1322 The National
Obscenity. law Center, another private organbation, Is Iocated at 475 Riverside
Drive, Suite 238, New York, N.Y. 10115. It publishes an Obscenity Low Bulletin and
the "Handbook on the Prosecution of Obscenity Cases.- as telepnone number Is
212.870.3218.
,� -24
3. The Attorney General should provide Informatlonal resources for
city and county attorneys who prosecute obscenity crimes.
4. Obscenity prosecutions should concentrate on cases that most
flagrantly offend community standards.
11. OTHER LEGAL REMEDIES
i A. RICO/FORFEITURE
In addition to traditional criminal prosecutions, use of RICO statutes and criminal
and civil forfeiture actions may also prove to be successful against obscenity offenders.
j By attacking the criminal organization and the profits of illegal activity, such actions can
provide ,a strong disincentive to the establishment and operation of sexually oriented
i businesses. For example, the federal government and a number of the twenty-eight
states which have enacted racketeer influenced and corrupt organization (RICO)
statutes include obscenity offenses as predicate crimes. Generally speaking, to violate
a RICO statute, a person must acquire or maintain an interest In or control of an
enterprise, or must conduct the affairs of an enterprise through a "pattern of criminal
activity.- That pattern of criminal activity may include obscenity violations, which in hurt
can expose violators to increased fines and penalties as well as forfeiture of all property
I acquired or used in the course of a RICO violation. These statutes generally enable
i
prosecutors to obtain either criminal or civil forfeiture orders to seize assets and may
j also be used to obtain injunctive relief to divest repeat offenders of financial interests in
' sexually oriented businesses. See 18 U.S.C. if 1961-68 (Vilest Supp. 1988). RICO
i statutes may be particularly effective In dismantling businesses dominated by
organized crime. but they may be applied against other targets as well.
The Working Group believes that Minnesota should enact a RICO -like statute that
would encompass Increased penalties for using a "paaem• of criminal obscenity acts
to conduct the affairs of a business entity. Provisions authorizing the seizure of assets
for obscenity violations should be considered, but the lirnitatiom Imposed by the Fust
Amendment must be taken into account.
I�
.I�
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It has been argued that a' RICO or forfeiture statute. based on obscenity crime
i
violations threatens to "chill protected speech' because it would permit prosecutors to
j seize non -obscene materials from distributors convicted of violating the obscenity
statute. American CMI Liberties Union, Pollutino The Censorshio Debate: A Summary
And Critique Of The Final Resort Of The Attcmev General's Commission On
Pomoarachv at 116.117 (1986).
' However, a narrow majority of the United States Supreme CouR recently held that
there is no constitutional bar to a state's inclusion of substantive obscenity violations
among the predicate offenses for its RICO statute. Saccenfield v. Indiana, 57 U.S.LW.
4180; 4183-4184 (February 21, 1989). The Court recognized that "any form of criminal
obscenity statute applicable to a bookseller will induce some tendency to
self -censorship and have some inhibitory effect on the dissemination of mateiial not
obscene.' Id. at 4184. But the Court ruled that, "the mere assertion of some possible
self•censorsNp resulting from a statute is not enough to render an anti -obscenity law
unconsdulonal under our precedent' Id. The Court specifically upheld RICO
provisions which Increase penalties where there is a pattern of multiple violations of
obscenity laws.
However. In a companion case, the Court also invalidated a pretrial seizure of a
bookstore and its contents after only a preliminary finding of "probable cause' to
believe that a RICO violation had occurred. Fort Wavne Books, Inc. v. Indiana, 57
U.S.LW. 4180. 4184-4185 (February 21, 1989). The Court explained there Is a
rebuttable presumption that expressive materials are protected by the F'vst
1 Amendment That presumption is not rebutted until the claimed justification for seizure
j of materials, the elements of a RICO violation, are proved in an adversary proceeding.
Id. at 4185.
The Court did not specifically reach the fundarnental question of whether seizure of
the assets of a sexually oriented business such as a bookstore is constitutionally
permissible once a RICO violation Is proved. The Court explained:
(F]or the purposes of disposing of this case, we assume without
deciding that bookstores and their contents are forfeitable puce other property
r�
•28•
such as a bank account or yacht) when it is proved that these items are
property actually used in, or derived from, a pattern of violations of the state's
r obscenity laws.
z
Id. at 4185. The Working Group believes that a RICO statute which provided for seizure
of the contents of a sexually oriented business upon proof of RICO violations would
have the potential to significantly curtail the distribution of obscene materials.
Although Minnesota does not have a RICO statute, it does have a forfeiture statute
permitting the seizure of money and property which are the proceeds of designated
felony offenses. Minn. Stat. 1609.5312 (1988). But, this statute does not permit seizure
of property related to commission of the offenses most likely to be associated with
sexually oriented businesses. Obscenity crimes are not among the offenses which
justify forfeiture. Although solicitation or inducement of a person under age 13 (Minn.
Stat 1609.322, subd. 1) or between the ages of 16 and 18 to practice prostitution
(Minn. Stat 1609.32'2, subd. 2) are included among the offenses which could justly
seUwa of property, many crimes Involving prostitudw are outside the reach of the
present Minnesota forfeiture law.
The following crimes are not included among the airnes which can justify seizure
of property and profits: solicitation, inducement, or promotion of a person between the
ages of 13 and 16 to practice prostitution (Minn. Stat 1609.322, subd. 1A); solicitation,
inducement or promotion of a person 18 years of age or older to practice prostitution
(Minn. Stat 1609.322, subd. 3); receiving profit derived from prostitution (Minn. Stat
1609.323); owning, operating or managing a "disorderly house,' In which conduct
habitually occurs In violation of laws pertaining to liquor, gambling, controlled
substances or prostitution (Minn. Stat 1609.33).
Although its reach would be much more limited, the legWanue should also
consider providing for forfeiture of property used to commit an obscenity offense or
which represents the proceeds of obscenity offenses. Under the holding in Fort Wayne
Books. Inc. v. Indlana, such forfeiture could not take place, if at an. unto it was proved
that the underlying obscenity crimes had been committed.
.27.
l There are no comparable constitutional issues raised by enacting or enforcement
of forfeiture statutes based an violations of prostitution, gambling, or liquor laws. The
legislature may require sexually oriented businesses which violate these laws to forfeit
their profits. The Working Group believes that such an expansion of forfeiture laws
would give prosecutors greater leverage to control the operation of arose businesses
which pose the greatest danger to the community.
RECOMMENDATIONS
1. The legislature should amend the present forfeiture statute to
Include as grounds for forfeiture all felonies and gross misdemeanors
pertaining to solicitation, Inducement, promotion or receiving profit from
prostltution and operation of a "disorderly, house."
2. The legislature should consider the potential for a RIC041[ke
statute with an obscenity predicate.
a B. NUISANCE INJUNCTIONS
Minnesota law enforcement authorities may obtain an Injunction and dose down
operations when a facility constitutes a public nuisance. A public nubance exists when
a business repeatedly violates laws pertaining to prestitution, gambling or keeping a
"disorderly house.' The Minnesota public nuisance law permits a court to order a
building to be dosed for one year. Minn. StaL f! 617.80,87 (1988).
Nuisance Injunctions to Gose down sexually oriented businesses which repeatedly
violate laws pertaining to prosecution, gambling or disorderly conduct are potentially
powerful .regulatory devices. The fact that a building in which prosecution or other
offenses orcur houses a sexually oriented business does not shield the facility from
application of nuisance law based on such offenses. Arcara v. Cloud Books. Inc., 478
U.S. 697, 106 S. CL 3172 (11 SIBS) (First Amendment does not shield adult bookstore
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from application of New York State nuisance law designed in part to dose places of
prostitution).
Although the Working Group believes that nuisance injunctions with an obscenity
predicate would be effective in controlling "sexually oriented businesses, such
provisions would probably be unconstitutional under parent U.S. Supreme Court
decisions. Six Supreme Court justices joined in the Arcara result, but two of them -
Justices O'Connor and Stevens - concurred with these words of caution:
If, however, a dry were to use a nuisance statute as a pretext for dosing
down a book store because it sold indecent books or because of the
perceived secondary effects of having a purveyor of such books in the
neighborhood, the case would dearly implicate Fast Amendment Concerns
and require analysis under the appropriate Fust Amendment standard of
review. Because there is no suggestion in the record or opinion below of
such pretextual use of the New York nuisance provision in this case, 1 concur
In the Courts opinion and judgment
Arcara, su ra, 478 U.S. at 708, 106 S. CL at 3178.
In an earlier case, Vance v. Universal Amusement, 445 U.S. 308, 100 S. CL 1158
(1980), the Court ruled unconstitutlonal a Texas public nuisance statute authorizing the
dosing of a building for a year If the building is used "habitualVy]* for the "commercial
exhibition of obscene material.' Id. at 310 n2, 100 S. CL at 1158 n.2.
The Court's recent holdings in Saocenfleld and Fart Wavne Books. Inc. give no
indication that the Court would now look more favorably upon an Injunction to dose
down a facility which sold obscene materials. The Court assumed without deciding
that forfeiture of bookstore assets could be constitutional in a RICO case. But. In
making this assumption, the Court distinguished forfeiture of assets under RICO from a
general restraint on presumptively protected speech. The court approved the
reasoning of the Indiana Supreme Court that, 'The remedy of forfeiture Is intended not
to restrain the future distribution of presumptively protected speech but rather to
disgorge assets acquired through racketeering activity.• Fort Wavne Books. Inc, at
4185. The Court assumed that RICO provisions could be upheld on the basis that
.2g.
1 "adding obscenity -law violations to the list of RICO predicate ci in was not a mere
ruse to sidestep the Fust Amendment.' Id. Without the relationship to proceeds of
crime, a remedy which dosed a facility for obscenity violations would be tar less lkely
to withstand cormtitutional scrutiny.
RECOMMENDATIONS
1. Prosecutors should use the public milsance shute to enjoin
operations of sexually oriented businesses which repeatedly vlalate
laws pertaining to prostitution, gambling or operating 'a disorderly
house.
111. ZONING
Zoning ordinances can be adopted to regulate the location of sexually orier>ted
businesses without violating the Fust Amendment Such ordinances can be designed
to disperse or concentrate sexually orierted businesses, to keep them at designated
distances from specific buildings or areas, such as douches, schools and residential
neighborhoods or to restrict buildings to a single sexually oriented usage. Because
zoning Is an Important regulstory tool when prop" enacted. the Wo" Group
believes a careful explanation of the law and a review of potential problems in drafting
zoning ordinances may be helpful to communities considering zoning to regulate
xu
seally oriented businesses.
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A. Supreme Court Decisions
The U.S. Supreme Court upheld the validity of municipal adult entertainment
zoning regulations in Younq v. American Mini Theaters. Inc., 427 U.S. 50, 98 S.CL 2440
(1976), and City of Renton v. Playtime Theaters, Inc.. 475 U.S. 41, 106 S.CL 928 (1986).8/
In Young. the Court upheld the validity of Detroit ordinances prohibiting the
operation of theaters showing sexually explicit "adult movies* within 1,000 feet of any
two other adult establishments.9/ The ordinances authorized a waiver of the 1,0004cot
restriction if a proposed use would not be contrary to the public interest and/or other
factors were satisfied. Young, suore. 427 U.S. at 54 n.7, 96 S.CL at 2444 n.7. The
ordinances were supported by urban planners and real estate experts who testified that
concentration of adult -type establishments "tends to a= an undesirable quantity
and quality of transients, adversely affects property values, causes an k=me in
crime, especially prostitution, and encourages residents and businesses to move
elsewhere.' Id. at 55, 96 S.CL at 2445. A "myriad* of locations were left available for
adult. establishments outside the forbidden 1,000•foct distance zone, and no existing
establishments were affected. Id. at 71 n.35, 96 S.CL at 2453 n.35. "
Writing for a plurality of four, Justice Stevens upheld the zoning ordinance as a
reasonable regulation of the place where adult films may be shown because (1) there
was a factual basis for the city's conclusion that the ordinance would prevent blight; (2)
the ordinance was directed at preventing „secondary effects' of adult-estabiishment
concentration rather than protecting citizens from unwanted "offensive' speech; (3) the
ordinance did not greatly restrict access to lawful speech, and (4) "the city must be
allowed a reasonable opportunity to experiment with sclutlons to admittedly serious
problems.' Id, at 83 n.18, 71 nn.34, 35, 96 S. CL at 244849 n.18, 2452.53 nn.34, 35.
8/ The only reported Minnesota court case reviewing an adult entertainment zonln
ordinance Is Citi of St. Paul v. Carto�e, 419 N. 2d 129 (Minn CL App. 19881
(upholding faua) consucutionauty or at. rau l ordinance).
9/ The ordinances also prohibited the location of an adult theaters within 500 feet of a
residential area, but this provision was Invalidated by the district court and that
decision was not appealed. Ycunq v. American Mini 'Theaters. Inc., 427 U.S. 50, 52
n.2, 96 S.CL 2440, 2444 n.2 (IWib).
Justice Stevens did not expressly describe the standard he had used, but it was
j r dear that the plurality would afford non -obscene sexually explicit speech lesser First
Amendment protection than other categories of speech. However, four dissenters and
i one concurring justice concluded that the degree of protection afforded speech by the
First Amendment does not vary with the social value ascribed to that speech. In his
concurring opinion, Justice Powell stated that the four -pan test of United States v.
O'Brien, 391 U.S. 367, 377, 88 S.Ct 1673, 1679 (1968), should apply. Powell
explained:
Under that test, a governmental regulation is sufficiently justified, despite its
incidental impact upon First Amendment interests. "If it is within the
constitutional power of the Government; if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental resftnian an .. .
Fust Amendment freedom is no greater than is essential to the ftu winance of
that interest'
427 U.S. at 79-80, 96 S.Ct at 2457 (citation omitted), (Powell, J., concurring).
Perhaps because Justice Stevens' plurality opinion did not offer a dearly
Iarticulated standard of review, post -Young courts often applied the O'Brien test
advocated by Justice Powell In his concurring opinion. Marry ordinances regulating
I sexually oriented businesses were invalidated under the O'Brien test. See R.M. Stein,
Regulation of Adult Businesses Through Zoninq After Renton, 18 Pac. U. 351, 360
(1987) ('consistently invalidatedl; S.A. Bender, Reculatina Pornacrechv Through
i Zonino: Can We 'Clean Up' Honolulu? 8 U. Haw. L Rev. 75, 105 (1966) (ordinances
upheld in only about half the cases).
Applying Young, the Eighth Circuit Court of Appeals invalidated a zoning ordinance
adopted by the city of Minneapolis. Alexander v. Citv of Minneaoolis, 698 F.2d 938 (8th
' Cir. 1983). In Alexander, the challenged ordlnance had three major restrictions on
i sexually oriented businesses: distancing from specified uses, prevention of
J concentration and amortization. It prohibited a sexually oriented business from
operating within 500 feet of districts zoned for residential or office -residences, a dturch,
-32-
state -licensed day care facility and certain public schools. It forbade an adtfts-only
facility from operating within 500 feet of any other aduits-0nty facility. Finally, the
ordinance required existing sexually oriented entertainment establishments to conform
to its provisions by moving to a new location, if necessary, within four years.
The Eighth Circuit ruled that the Mirtneapolis ordinance created restrictions too
severe to be upheld under the Young decision. It would have required all five of the
city's sexually oriented theaters and between seven and nine of the city's ten sexually
oriented bookstores to relocate and would have required these facilities to compete
with another 18 adult -type establishments (saunas, massage parlors and "rap' parlors)
for a maximum of 12 relocation sites. The effective result of enforcing the ordinance
would be a substantial reduction in the number of adult bookstores and theaters, and
no new adult bookstores or theaters would be able to open, the Cant concluded.
Alexander, supra 698 F.2d at 938.
In Renton, lqpm the United States Supreme Court adopted a dearer standard
under which regulation of sexually oriented businesses could be tested and upheld.
The Court upheld an ordinance prohibiting adult movie theaters from locating within
1,000 feet of any residential zone, single- or multiple-famlly dwelling, church. park or
school.
Justice Rehnquist, writing for a Court majority that Included Justices Stevens and
Powell, stated that the Renton ordinance did not ban adult theaters altogether and that,
therefore, It was "properly analyzed as a forth of time. place and manner regulation.'
Id. at 46, 108 S.CL at 928. When time, place and manner regulations are "content -
neutral" and not enacted "for the purpose of restricting speech on the basis of its
content,' they are "acceptable so long as they are designed to serve a substantial
governmental Interest and do not unreasonably limit alternative avenues of
communication,' Rehnquist stated. Id. He found the Renton ordinance to be content.
neutral because It was not aimed at the content of films shown at adult theaters.
Rather, the city's "predominate concerns' were with the secondary effects of the
theaters. Id. at 47, 108 S.Ct. at 929 (emphasis In original). Once a time, place or
manner regulation is determined to be content -neutral, "[t]he appropriate inquiry ... is
whether the ... ordinance Is designed to serve a substantial governmental Interest and
i It '33'
allows for reasonable avenues of communication.' Rehnquist wrote for the Court Id. at
50, 106 S.CL at 930.
The Supreme Court found that Renton's "interest in preserving the quality of urban
life' is a "vital' governmental interest The substantiality of that interest was in no way
diminished by the fact that Renton "relied heavay' on studies of the secondary efteas
of adult entertainment establishments by Seattle and the experiences of other tides.
Rehnquist edded. Id. at 51,,106 S.CL at 930,91.
The First Amendment does not require a city, before enaWnp such an
ordinance, to conduct new studies or produce evidence independent of that
already generated by other cities, so long as whatever evidence the city relies
upon is reasonably believed to be relevant to the problem that the city
addresses. That was the case here. Nor is our holding alketed by the fact
that Seattle ultimately chose a ditent method of adult theater sorting than
that chosen by Renton, since Seattle's choice of a different remedy to
combat the secondary effects of adult Iheaters does not tail brio question
either Seattle's identification of those secondary effects or the relevance of
Seattle's experience to Renton.
Id. at 51-52. 106 S.CL at 931.
Rehnquist's inquiry then addressed dte mearts Chosen to further Renton's
substantial interest and Inquired into whether the Renton ordinance was sufficiently
..narrowly tallored.'
His comments on Renton's means to Anther its substantial Interest suggest that
municipalities have a wide latitude In enacting conteret4mutral ordinances aimed at the
secondary effects of adult -entertainment establWwnerdL He quoted the Youna
plurality for the proposition that:
it is not our function to appraise the wisdom of (the cIty's) decisions to require
adult theaters to be separated rattler than concentrated in the same
areas... . Mhe City must be allowed a reasonable opponunity to
experiment with solutions to admittedly serious problems.
Id. at 52,106 S.CL at 1331 (quoting Youn , Supra, 427 U.S. at 71, 96 S.CL at 2433).
1 -34-
As to the "narrowly tailored" requlremertt, Rehnquist found that -the Renton
ordinance only affected theaters producing unwanted secondary effects and, therefore,
was satisfactory. Id.
The second prong of Renton's "time, place, manner" inquiry — the avadabilitq of
alternative avenues of communication — was satisfied by the district court's finding that
520 acres of land, or more than five percent of Renton, were left available for aduit-
entertainment uses, even though some of that developed area was already occupied
and the undeveloped land was not avalable for sale or lease. A majority of the Court
found:
That [adult theater owners] must fend for themselves In the real estate
market, on an equal footing with other prospective purchasers and lessees,
does not give rise to a Fust Amendment violation.... In our view, the Fust
Amendment requires only that Renton refrain from effectively denying (adult
theater owners) a reasonable opportunity to open and operate an adult
theater within the city, and the ordinance before us easily meets this
requirement.
Id. at 54, 106 S.CL at 932.
B. Standards and Need for Legal 2onlnq
Unlike Youno, the Renton ease spells out the standards by which zoning of
sexually oriented businesses should be tested. Renton and several lower court
decisions rendered in its wake suggest that the two most critical areas by which the
ordinances will be Judged are 1) whether there Is evidence that ordinances were
enacted to address secondary impacts on the community. and 2) whether there are
enough locations still available for sexually oriented businesses so that zoning Is not
Just a pretext to eliminate pornographic speech.)
10/ of t t recent post -Renton adult -entertainment zoning decisions by federal courts.
five invalidated o unances, three upheld ordinances and three ordered a remand
to district court for further proceedings. Zon1� ordinances were struck h Avalon
j Cinema Co►a. v. Thomson, 887 F.2 659 (8th Ch. 1987)( city council falled of direr
J
(Footnote 10 t:ontinueo on ext: Page)
-35-
This section first describes some of the legal considerations which communities
must keep In mind in drafting zoning ordinances for sexually oriented businesses.
Then, some suggestions are provided, based on evidence reviewed by the Working
Group, of types of zoning which can be enacted to reduce the secondary efte= of
sexually oriented businesses.
1. Documentation to Support Zoninq Ordinances
Sexually oriented speech which is not obscene cannot be restricted on the basis of
Its content without running afoul of the Fust Amendment. The justification for regulating
sexually oriented businesses is based on proof that the zoning is needed to reduce
secondary effects of the businesses on the community.
Since Renton, a number of adult entertanment zoning ordinerues have been
Invalidated for failure of the enacting body to dccuntent the need for zoning regulations.
Thus, one court invalidated a zoning ordinance because there was "very little, if any,
evidence of the secondary effects of adult bookstores ... before the City Council .. .
(Footnote 10 Continued from Previous Page)
evidence suggesting neighborhood decline would result); Tanis, Inc, v. San
Bemadino County, 827 F.2d 1329 (90 Cir. 1987) (no evidence presented to
legislative body of secondary harmful effects); Ebel v. Corona, 767 F.2d 635 (9th
Cir. 1985) (tact of effective alternative locations); 11126 daitirnore Boulevard. Inc,
v. Prince George's County of MaMand, 684 r. bupp. W4 (u. Md. 1996)
pnsumcient evidence of sewncary ertects presented to legislative body; special
exception provisions grant excessive discretionary authority to zoning officials);
I
Peoples Tegs,_ Inc. v. Jackson County Legislature. 638 F. Supp. 1345 (W.O.
Mo. iji8b) (improper ieg�siative purpose to prevent continued operation of adult•
entertainment establishment). Zonutg ordinances were upheld in SDJ. Inc. v. City
of Houston, 837 F.2d 1268 (5th Clr. 1988); FW/PBS. Inc. v. Cite( of Uaiias, ear t•.�d
1298 ntn'.I . 1988); and S 8 G News"lne. V. t:itLr of South ate, Wd F•.bu p. 1060
(E.D. Mich. 1986), aff d witnout gumisnea opinion, vu t•Id 1142 (6th U. 1987).
Remands were orcered in LMnSty v urty or Ann Arbor, 824 F.2d 489 (6th Cir.
1987) cert. denied, U.S. Wb. L:t.1d13 (1web) (remand for determination
of excessive restrictions); International Food 8 Beverage System v. City of Fort
Lauderdale, 794 F.2d 1520 (11th uu. 18tie) (remand tar reconsideration in itgnt of
Hemon, 4upra; nude bar ordinance), and Walnut Preperties,ltu. Y. City of Whittier,
Boa (remand,
31 (9th Cir. 1886) n pan, for demmunauen of Land
availability).
t
-38-
11126 Baltimore Boulevard, supra 684 F. Supp. at 895; see also Taft v. San
Bernadino Countv, 827 F.2d 1329, 1333 (9th Cir. 1887) (ordinance construed to prohibit
1
� single showing of adult movie in zoned area; invalidated for talars to present evidence
of secondary effects of single showing); but see Thames Enterprises v. City of St. Louis,
851 F.20 199, 201-02 (8th Cir. 1988) (observations by legislator of secondary effects
sufficient).
' On the other hand, it is not necessary for each municipality to conduct research
independent of that already generated by other cities. The Renton court held that
evidence of the need for zoning of sexually oriented businesses can be provided by
_ studies from other cities "so long as whatever evidence the city relies upon is
1 reasonably believed to be relevant to the problem that the city addresses.' Id. at 51,
106 S.Ct. at 931. See also SDJ, Ins. v. City of Houston, 837 F2d 1268, 1274 (5th Ca.
1988) (public testimony from experts, supporters and opponents and consideration of
I studies by Detroit, Boston, Dallas and Los Angeles suf dent evidence of legitimate
purpose).
/ The first section of this report summarizes evidence tram various cities
documenting the secondary effects of sexually oriented businesses. Following Renton,
It is Intended that local communitles will make use of this evidence In the course of
assembling support for reasonable regulation of sexually oriented businesses
2. Availabflity of Locations for Sexualtv Oriented Businesses
Courts also evaluate whether zoning of sexually oriented businesses is merely a
pretext for prohibition by reviewing the alternative locations which remain for a sexually
1 oriented business to operate under the zoning scheme. A municipality must 'Yefrain
from effectively denying ... a reasonable opportunity to open and operate' a sexually
i oriented business. Renton. su ra, 475 U.S. at 54, 106 S. Ct at 932
Access may be regarded as unduly restricted if adult entertainment zones aro
unreasonably small In area or V the number of locations Is unreasonably few. There Is
no set amount of land or number of locations constftAonalty, required. The Renton
-37.
7
i court found that 520 acres of "accessible real estate,' including land "aiss- Tossed by
freeways' — more than five percent of the entire land area in Renton — was sufficient.
I
475 U.S. at 53, i06 S.Ct. at 932 The Young court found the availability of "myriad"
locations sutflCient. 427 U.S. at 72 n.35.96 S.Ct at 2453 n.35.
Whether .M8 square miles constituting .23 of 1 peratrit of the (and area within the
city's central business zone is sufficient is not dear. See Alexander v. The City of
Minneapolis (Alexander II), No. 3.8&806, slip op. at 22 (D. Minn. May 22. 1989) (less
than 1% of land area could be valid it -ample actual oppomaiides' for relocation exist);
Christy v. City ef Ann Arbor, 824 F.2d 489, 490, 493 (6th Cir. 1987) (remanding for a
determination of excessive restriction). See also 11128 Baltimore Boulevard. Inc. v.
Prince Georce's Countv of Marvland. 664 F. Supp. 664 (D. Md. 1988) (20 alternative
locutions suffident); Alexander v. City of Minneapolis. 698 F.2d 936, 939 n.7 (6th Cir.
1983) (pre -Renton; 12 relocation sites for at least 28 existing adult establishments not
sufficient).
. ! The sufficiency of sites available for adult entertainment uses may be measured in
relation to a number of factors. See, etc ,Alexander II, supra, slip op. at 22.23
(Insufficient If relocation site owners refuse to sell or lease); International Food &
Beverage Svstems, Inc.. 794 F.2d 1520, 1526 (11th Or. 1986) (suggesting number of
I sites should be determined by reference to aunrrnutity needs, Incidence of
establishments in other cities, goals of city plan); Baslardanes v. City of Galveston, 6B2
I F.2d 1203, 1209 (5th Or. 1982) (pre -Renton case strildng zoning regulation restricting
I adult theaters to Industrial areas that were "largely a patchwork of swamps.
warehouses, and railroad tracks . . ladc(ing] access roads and retail
establishments'.
However, the fact that land zoned for adult establishments is already occupied or
not aurently for sale or lease will not invalidate a zoning ordinance. Renton, supra, 475
U.S. at 53.54. 106 S.CL at M. but see, Alexander II, supra, slip op. at 22.23
(reasonable relocation opportunity absent where owners refuse to sen or rent). There is
no requirement that it be economically advantageous for a sexually oriented business
' to locate In the areas permitted by law.
J� 418-
3. Distance Requirements
Another factor that may be examined by some courts is the distance requirement
established by an adult entertainment zoning ordinance. In SDJ. Inc. v. Houston, 837
1 F.2d 1268 (5th Cir. Me). the Court was asked to invalidate a 750 -bot distancing
requirement on the ground that the city had not proved that 750 Net. as opposed to
j some other distance, was necessary to serve the pry's interest
The Court found that an adult entertainment zoning ordinance is "sufficiently well
tailored it it effectively promotes the government's stated interest' and declined to
"second-guess' the city council. Houston, supra, 837 F.2d at 1276.
Courts have sustained both requirements that sexually oriented businesses be
located at specified distances from each other, see Young, supra. (upholding distance
requirement of 1000 feet between sexually oriented businesses), arta requirements that
sexually oriented businesses be located at fixed distances from other sensitive uses,
see Renton, supra. (upholding distance requirement of 1000 feet between sexually
.oriented businesses and residential zones, single -0r -multiple family dwellings.
churches, parks or schools).
The Working Grcup heard testimony that when an ordinance establishes distances
between sexually oriented uses, an additional regulation may be needed to prevent
operators of these businesses to defeat the Intent of the regulation by concentrating
sexually oriented businesses of various types under ane root, as in a sexually oriented
mini -mall. The city of SL Paul has adopted an ordinance preventing more than one
adult use (e.g.. sexually oriented theater, bookstore, massage parlor) from locating
within a single building. A similar ordinance was upheld in the North Carolina case of
Hart Book Stores. Inc. v. Edmisten, 812 F. 2d 821 (4th Cir. 1979), cert denied, 447 U.S.
929 (1980).
The experience with multiple -use sexually oriented businesses at the University.
Dale Intersection suggests that these businesses have a greater potential for causing
neighborhood problems than do single -use sexually oriented businesses. Fallowing
Renton, it is suggested that lawmakers document the adverse effects which the
Z -39-
I' community seeks to prevent by prohibiting multiple -use byes before enacting
this type of ordinance.
4. Reouirinq Existinq Businesses to Ccmoly with New Zoninq
Zoning ordinances can require existing sexually -oriented businesses to dose their
operations provided they do not foreclose the operation of such businesses in new
locations. Under such provisions, an existing business is allowed to remain at its
present location, even though a is a non -conforming use, for a limited period.
The Minnesota Supreme Cour has explained the theory this way:
I The theory behind this legislative device is that the useful life of the
nonconforming use corresponds roughly to the a=rttzation period, so that
.,� the owner is not deprived of his property urdl the end of its useful Ift In
addition, the monopoly position granted during the amortization period
theoretically provides the owner with compensation for the loss of some
property interest, since the period specified rarely corresponds precisely to
} the useful life of any particular structure constituting the nonconforming use.
I Naecele Outdoor Advenisinq Co. v. Villaqe of Minnetonka, 162 N.W.2d 206, 213 (Minn.
1868).
Such provisions applied to sexually oriented businesses have been said to be
"uniformly upheld.' Dumas v. City of Dallas, 648 F. Supp. 1Cat, 1071 (N.D. Tex. 1986),
aMd. FW/PBS. Inc. v. City of Dallas, 837 F.2d 1298 (5th CU. 1988) (citing cases).
1 As detailed In the first section cf this report (pp. 6-15), there are significant
secondary impacts upon communities related to the location of sexually oriented
businesses. These Impacts are intensified when sewelly oriented businesses are
located in residential areas or near other sensitive uses and when sexually orlented
businesses are concentrated near each other or near alcohol orieraed businesses. The
J Working Group believes that evidence from studies such as those desatbed In the first
section of this report and anecdotal evidence from neighborhood resklerus and police
-40-
officers should be used to support the need for zoning ordinances whid address these
problems.
RECOMMENDATIONS
1. Communities should document findings of adverse
secondary effects of sexually oriented businesses prior to enacting
zoning regulations to control these uses so that such regulations can be
upheld If challenged in court
2 To reduce the adverse effects of sexually oriented
businesses, communities should adopt zoning regulations to set
distance requirements between sexually oriented businesses and
sensitive uses, Including but not limited to residential areas, schools,
child care facilities, churches and parka.
3. To reduce adverse Impacts from concentration of sexually
oriented businesses, communities should. adopt zwftg : ordkwu=
which set distance requirements between liquor estabUshments and
sexually oriented businesses and between sexually oriented businesses
and should consider restricting sexually oriented businesses to one use
per building.
4. Communities should require existing businesses to comply with
new zoning or other regulation pertaining to sexually oriented
businesses within a reasonable time so that prior uses will conform to
now laws.
IV. LICENSING AND OTHER REGULATIONS
Ucensing and other regulations may also be used to reduce the adverse efteas of
sexually oriented businesses. The critical requirements which communities ., keep
-41-
In mind are that regulations must be narrowly naffed to address adverse secondary
effear, they must be reasonably related to reduction of these effects and they rrwst be
capable of objedtive application. 9 these standards can be met, licensing and otter
regulatory provisions may play an important role in preventing unwanted exposure to
sexually oriented materials and in reducing the aims problems associated with
sexually oriented businesses.
tt is dear that failure to act upon a license application for a sexually oriented
business carmct take the place of regulation. Without justillication. denial or farilure to
grant a license is a prior restraint in violation of the First Amendment. Parkway Theater
Corporation v. Civ of Minneapolis, No. 716787, slip. op. (Herrn. Co. Dist Ct, Slept. 24,
1975).
An ordinance providing for license revocadw of an adult motion picture theater if
the licensee is convicted _of an obscenely offense is also likely to be held
ur=nstitutionai as a prior restraint of free speech. Alexander v. CRY of SP Paul. 227
N.W.2d 370 (Minn. 1975). The Alexander court stated:
DMhen the city licenses a motion picture theater, it is licensing an
activity protected by the Fast Amendment and as a result the power of the
city is more limited than.when the city Ilcer>ses acsivldes'which do not have
First Amendment protection, such as the bAlness of selling liquor or running
a massage parlor.
Id. at 373 (footnote omitted); see also, Cohen v. Civ of Daleville, MS F. Supp. 1168,
1171 (M.D. Ala. 1986) (past sale of obscene materlal cannot jusdty revocation of
license).
However, the courts have permitted eommurdtias to deny fiosnses to sexually
oriented businesses if the person seeking a license has been convicted of other crimes
which are closely related to the operation of sexually oriented businesses.
in Dumas v. Civ of Dallas, sup ra the cart reviewed a requirement that a ueentae
applicant not have been convicted of certain mics wviNtrt a specified perlod- Five of
the enumerated crimes were held to be not sufficiently related to ate purpose of the
QL -42-
adult entertainment licensing ordinance because the city had made no findings on their
justification. The Invalid enumerated offenses were controlled substances act
violations, briberi. robbery, kidnapping and organized criminal activity. The court
upheld requirements that the licensee not have been convicted of prostitution and sex-
related offenses. Id. at 1074. If a community seeks to require that persons with a
history of other crimes be denied licenses, dear findings must fust be made which
justify denial of licenses on that basis.
- The Dumas court also invalidated portions of the ling ordinance permitting the
police chief to deny a licensed he finds that the applicant "is unable to operate or
manage a sexually oriented business premises In a peaceful and law-abiding manner•
1 or is not "presently fit to operate a sexually oriented business' Neither provision
satisfied the constitutional requirement that "any Itcense requirement for an activity
related to expression must contain narrow. objective, and definite standards to guide
the IicerhsIng authority.' Id. at 1072 Sge also Alexander n, su ra, stip op. at 16
J (unconstitutionally vague to define regulated bookstores as time selling "substantial or
significant portion' of Certain publications); 11126 Winters Boulevard, su 684
F. Supp. at 898.99 (striking ordinance allowing zoning offk:lals to deny permit g adult
Jentertainment establishment is not "in harmony with zoning plan, does not
"substantially impair" master plan, does not "adversely affect" hearth, safety, and
Iwelfare and Is not "detrimental' to neighborhood because such standards are "subject
to possible manipulation and arbitrary application').
A number of courts have upheld ordinances requiring that viewing booths in adult
theaters be open to discourage illegal and unsanitary sexual activity. Sge, g;gs, Doe v.
Citv of Minneacolls, 693 F. Supp. 774 (D. Minn. 1988).
Ucensing provisions and ordinances forbidding massage parlors employees from
administering massages to persons of the opposite sex have withstood equal
protection and privacy and assoclational right challenges. See Ctamol t v. City of Ft
We"% 682 F. Supp. 401. 407-408 (N.D. Ind. 1988) (equal protection)-. W%mirhess. Inc.
v. Fruchtman, 482 F. Supp. 681, 689-90 (S.D. N.Y. 1979), p1d, 628 F.2d 1346 (2d Or.
1980), Cert. denied, 449 U.S. 842, 101 S.Ct. 122 However, Borne courts have found
same -sax massage regulations to be In violation of Title VII of the CM Riphb Act of
-43-
1964. See Stratton v. Drumm: 445 F. Supp. 1305, 1310.11 (D. Conn. 1978); Cianciolo
_ v. Members cf City Council, 376 F. Supp. 719, 722-24 (ED. Term. 1974); Joseah v.
House, 353 F. Seipp. 367, 374-75 (ED. Va.), alFd sub nom. Joseph v. Blair, 4a2 0.2d
575 (40 Cir.), cert denied. 416 U.S. 955, 94 S. CL 1968 (1974). Contra Aldred v.
I Dulino, 538 F.2d 637 (4th Cir. 1976).
Altlmugh the Working Group expressed strong concern about the open of
u prostitution under the guise of massage parbrs; ibis type of regulation is not advisable
because legitimate thetWeudc massage emblisttments could find their operations
cuutar7ed. ProstIlutlan may be better controlled through prosecution and use of post-
conviction aWor4s such as forfeiture or enjoining a public nuisance.
in 1985, a court upheld an ordinance making it unlawful to display for coirmemial
I purposes material "harmful to minors' unless the material Is in a sealed wrapper and, d
J the enver is harmful to minors, has an opaque cover. Uooer Midwest Booksellers
Assn v. Cftv of Minneapolis, 780 F.2d 1389 (8th Ca. 190. last year, the legislature
enacted a state law similarly prohibiting display of sen any explicit material which is
harmful to minors unless items are kept in sealed wrappers and, where the cover Itself
would be harmful to minors, within opaque covers. Minn. Stat J, 617293 (1980). This
law has the potential to protect minors from
exposure t0 SexuraUy oriented materials.
Communities also have considerable dismlion to regulate signage so that the exterior
of sexually oriented businesses does not expose unwitting observers to sexually explicit
messages.
RECOMMENDATIONS
1. Prior to enacting Ucenalng reguletions, communities should
document findings of adverse secondary effects of sexually oriented
businesses and the relationship between these effects and proposed
regulations so that such regulations can be upheld If challenged In
Court
I�z 44-
s. Communities should adopt regulations which reduce the
likelihood of criminal activity related to sexually oriented businesses,
Including bUt not limited to open booth ordinances and ordinances
which authorize denial or revocation of licenses when the licensee has
j committed offenses relevant to the operation of the business.
& Communities should adopt regulations which reduce
exposure of the community and minora to the blighting appearance of
sexually oriented businesses including but not Urnited to reguladons of
signage and exterior design of such businesses and should enforce
state law requiring sealed wrappers and opaque covers on sexually
oriented material
CONCLUSION
.: There are many actions which communities may take within the law to protect
j
themselves from the adverse secondary effects of sexually oriented businesses.
,., Prosecution of obscenity crimes can play a vital role In decreasing the profitability of
sexually orierrted .businesses and removing materials which .violate community
standards from local outlets. Forfohae and injunction to prevent public nuisance
should be available where sexually oriented businesses are the site of sex-related
I crimes and violations of laws pertaining to gambling, liquor or controlled substrrees
1 These actions will remove the most egregious establishments from communities.
Zoning can reduce the Iikelhood that sexually oriented businesses will lead to
neighborhood blight. Licensing can sever the IUtk between at least some crime figures
and sexually oriented businesses. Regulation and enforcement can protect minors
from exposure to sexually explicit materials.
The Attorney General's Working Group on the Regulation of Sexually Oriented
Businesses believes that prosecution, seiare of profit, zoning and regulation of
sexually oriented businesses should only be done In keeping with the constitutional
��
0
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Staff Photo by Charles 81orgen
tsrayar Wolps such as this ona gathair aIs days s teak to protea the prsasrtco of s sox-orbMsd booksto s In sWmhen Ramage.
Suburbs scramble to limit sex shops
Cities like Ramsey shocked to learn that sex sells in the suburbs, toc
By Pat Fgaes
by dm%ing aD zoning Codes that areas. %hlte it drafts Its ordinance.
Staff Writer
restrict their location.
Because such businesses arc Da+id Gross, an assistant
For months now, prays groups
Several cities are now scrambling to protected by constitutional Minneapolis city attorney who ha
haus gathered sig days a week
restrict sucb biwriesses, just in case guarantees, cures cannot lust close represented the city in legal
outside the sesoriented bookstore
any should try to open. them. Using ran irq ordinances to challenges to its sea-orienied row
in Ramsey and prayed for it logo
keep them away Rom ordinance, says that suburban
away. So fir they havm't had any
"We certainly didn't sant to he in a "ureompaubk' uses — as governments have been remiss in
moa luck than have my oflkials,
utuauon like f Ramsey's1; 'said Champlin, Anoka, Osseo and not facing facts sooner, especwlh
who were rebuked whin they asked
Kurt Ulrich, city administrator for Andovcr have done in recent offer efforts to reuntt the
■ judge to order it to go away.
Champlin. The city, S mites west of months — appears to be the only dissemination of pomogmphy
Ramsey, has no sesonented legal recourse, failed in the early 198N,
grey's predicament has
businesses. But a few months ago it
stied a lesson for other
adopted an ordinance that restncu Fndley and Brooklyn Park are "They chose to turn their heads a
rban cities, where officials
the distance that such businesses working on ordinances, and Elk ignore it and say it cant happen
have seldom thought to block the
must be from churches, schools. River has instituted a moratorium
arrival of aesonented businesses
day -core centers and residential on such businesses for 19 months Store continued on page 6B
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411
EXHIBIT B
ORDINANCE AMENDMENT NO.
ZONING ORDINANCE AMENDMENTSRELATING TO THE DEFINITION OF ADULT USES
AND GENERAL PROVISIONS FOR ADULT USES
The Monticello City Council does hereby ordain the following:
I. DEFINITIONS
Section 2-2 of Chapter 2 of the Monticello Zoning Ordinance to
be amended by adding the following definitions as (AD), (AE),
and (AF) and shifting the lettering system of all definitions
following these additional definitions:
[AD] ADULT USES: Adult uses include adult bookstores, adult motion
picture theatres, adult mini -motion picture theatres, adult
massage parlors, adult steamroom/bathhouse/ sauna facilities,
adult companionship establishments, adult rap/conversation
parlors, adult health/sport clubs, adult cabarets, adult
novelty businesses, adult motion picture arcades, adult
modeling studios, adult hotels/motele, adult body painting
studios, and other premises, enterprises, establishments,
businesses, or places open to some or all members of the
public, at or in which there is an emphasis on the
presentation, display, depiction, or description of "specified
sexual activities" or "specified anatomical areae" which are
capable of being seen by members of the public. Activities
classified as obscene as defined by Minnesota Statute 3617.241
are not included.
Specified Anatomical Areae:
A. Lees than completely and opaquely covered human
genitals, pubic region, buttock, anus, or female
breast(s) below a point immediately above the top
of the areola; and
B. Human male genitals in a discernibly turgid state,
even if completely and opaquely covered.
Specified Sexual Activities:
A. Actual or simulated sexual intercourse, oral
copulation, anal intercourse, oral -anal copulation,
bestiality, direct physical stimulation of
unclothed genitals, flagellation or torture in the
context of a sexual relationship, or the use of
excretory functions in the context of sexual
relationship, and any of the following sexually -
oriented acts or conducts anilingus, buggery,
ADULTUSE.AMD: 1/3/92 Page 1
coprophagy, coprophilia, cunnilingus, fellatio,
necrophilia, pederasty, pedophilia, piquerism,
ILsapphism, zooerasty. .
B. Clearly depicted human genitals in the state of
sexual stimulation, arousal, or tumescence.
C. Use of human or animal ejaculation, sodomy, oral
copulation, coitus, or masturbation.
D. Fondling or touching of nude human genitals, pubic
region, buttocks, or female breast.
E. Situations involving a person or persons, any of
whom are nude, clad in undergarments, or in
sexually revealing costumes; and who are engaged in
activities involving the flagellation, torture,
tettering, binding, or other physical restraint of
any such persons.
F. Erotic or lewd touching, fondling, or other
sexually -oriented contact with an animal by a human
being.
G. Human excretion, urination, menstruation, vaginal,
or anal irrigation.
[AE] ADULT USE / ACCESSORY: The offering of goods and/or services
which are classified as adult uses on a limited scale and
which are Incidental to the primary activity and goods and/or
services offered by the establishment. Examples of such items
include adult magazines, adult movies, adult novelties, and
the like.
(AF] ADULT USE / PRINCIPAL: The offering of goods and/or services
which are classified as adult uses as a primary or sole
activity of a business or establishment and include, but are
not limited to, the following:
A. Adult Use Body Painting Studio - An establishment
or business which provides the service of applying
paint or other substance, whether transparent or
non -transparent, to or on the body of a patron when
such body is wholly or partially nude in terms of
"specified anatomical areas."
B. Adult Use Bookstore - A building or portion of a
building used for the barter, rental, or sale of
Items consisting of printed matter, pictures,
slides, records, audio tape, videotape, or motion
picture film if such building or portion of a
building is not open to the public generally but
only to one or more classes of the public excluding
any minor by reason of age, or if a substantial or
it significant portion of such items are distinguished
ADULTUSE.AMD: 1/3/92 Page 2
or characterized by an emphasis on the depiction or
deacription of "specified sexual activities" or
"specified anatomical areas."
C. Adult Use Cabaret - A building or portion of a
building used for providing dancing or other live
entertainment, if such building or portion of a
building excludes minors by virtue of age, or if
such dancing or other live entertainment is
distinguished or characterized by an emphasis on
the presentation, display, depiction, or
description of "specified sexual activities" or
"specified anatomical areas."
D. Adult Use Companionship Establishment - A
companionship establishment which excludes minors
by reason of age, or which provides the service of
engaging in or listening to conversation, talk, or
discussion between an employee of the establishment
and a customer, if such service is distinquised or
characterized by an emphasis on "specified sexual
activities" or "specified anatomical areas."
E. Adult Use Conversation/Rap Parlor - A
conversation/rap parlor which excludes minors by
reason of age, or which provides the service of
engaging in or listening to conversation, talk, or
discussion, if such service is distinguished or
characterized by an emphasis on "specified sexual
r" activities" or "specified anatomical areas."
Z
F. Adult Use Health/Sport Club - A health/sport club
which excludes minora by reason of age, or if such
club is distinguished or characterized by an
emphasis on "specified sexual activities" or
"specified anatomical areas."
G. Adult Use Hotel/Hotel - Adult hotel/motel means a
hotel or motel from which minors are specifically
excluded from patronage and wherein material is
presented which is distinguished or characterized
by an emphasis on matter depicting, describing, or
relating to "Specified sexual activities" or
"specified anatomical areas."
H. Adult Use Massage Parlor/Health Club - A massage
parlor or health club which restricts minors by
reason of age, and which provides the services of
massage, if such service is distinguished or
characterized by an emphasis on "specified sexual
activities" or "specified anatomical areas."
ADULTUSE.AMD: 1/3/93 Page 3
14
I. Adult Use Mini -Motion Picture Theatre - A building
or portion of a building with a capacity for less
than fifty (50) persons used for presenting
material if such building or portion of a building
as a prevailing practice excludes minors by virtue
of age, or if such material is distinguished or
characterized by an emphasis on "specified sexual
activities" or "specified anatomical areas" for
observation by patrons therein.
J. Adult Use Modeling Studio - An establishment whose
major business is the provision to customers of
figure models who are so provided with the intent
of providing sexual stimulation or sexual
gratification to such customers and who engage in
"specified sexual activities" or display "specified
anatomical areas" while being observed, painted,
painted upon, sketched, drawn, sculptured,
photographed, or otherwise depicted by such
customers.
K. Adult Use Motion Picture Arcade - Any place to
which the public is permitted or invited wherein
coin or slug -operated or electronically,
electrically, or mechanically controlled or
operated still or motion picture machines,
projectors, or other image -producing devices are
maintained to show images to five or fewer persons
per machine at any one time, and where the images
so displayed are distinguished or characterized by
en emphasis on depicting or describing "specified
sexual activities" or "specified anatomical areas."
Adult Use Motion Picture Theatre - A building or
portion of a building with a capacity of fifty (90)
or moro poroons usod for presenting material if
such building or portion of a building as a
prevailing practice excludes minors by virtue of
age, or if such material is distinguished or
characterized by an emphasis on "specified sexual
activities" or "specified anatomical areae" for
observation by patrons therein.
N. Adult Use Novelty Business - A business which has,
ea a principal activity, the scale of devices which
stimulate human genitals or devices which are
designed for sexual stimulation.
N. Adult Sauna - A sauna which excludes minors by
reason of age, or which provides a steam bath or
heat bathing room used for the purpose of bathing,
relaxation, or reducing; utilizing steam or hot air
as a cleaning, relaxing, or reducing agent, if the
ADULTUSE.AND: 1/3/99 Page 4
service provided by the sauna is distinguished or
characterized by an emphasis on "specified sexual
activities" or "specified anatomical areas."
O. Adult Steam Room/Bathhouse Facility - A building or
portion of a building used for providing a steam
bath or heat bathing room used for the purpose of
pleasure, bathing, relaxation, or reducing;
utilizing steam or hot air as a cleaning, relaxing,
or reducing agent, if such building or portion of a
building restricts minors by reason of age or if
the service provided by the steam room/bathhouse
facility is distinguished or characterized by an
emphasis on "specified sexual activities" or
"specified anatomical areas."
II. GENERAL PROVISIONS
Chapter 3 of the Monticello Zoning Ordinance shall be amended
as follows:
Add section 3-10: ADULT USES.
(A) PURPOSE: The purpose of Section 3-10: Adult Uses is to
provide the opportunity for operation and establishment
of adult land uses while providing controls that limit
negative impacts of adult uses on residential and
commercial areas.
(B] GENERAL: Adult use as defined in this ordinance shall be
subject to the following general provisions:
1. Activities classified as obscene as defined by
Minnesota Statute 617.101 are not permitted and are
prohibited.
1. Adult uses, either principal or accessory, shall be
prohibited from locating in any building which is
also utilized for residential purposes.
3. An adult use which does not qualify as an accessory
use shall be classified as an adult use/principal.
6. Zoning Controls and District Text Application:
a. So as to provide specific opportunity for
adult uses to exist within the city of
Monticello, an analysis of the existing city
ordinance text and map has been conducted. It
was determined that the I-1 zoned districts
provided the most appropriate zones to
accommodate adult uses classified as principal
activity. Only amendments to the I-1 text
id
ADULTUSE.AMDs 1/3/91 page 3
are, therefore, proposed to accommodate adult
uses/principal. Principal adult uses are
permitted only in the I-2 zoned districts.
b. Table 1, as follows, provides an initial basis
for determining adult principal use
opportunity within the city of Monticello.
The I-2 zoned districts have been first
evaluated as to area as related to the balance
of the city (Table 1) and secondly, the
allowed opportunity area as related to the
size of the I-2 zoned property (Table 2).
TABU 1
CITY OF KONPICELLO
PROPOSED ZONING DISTRICTS
ALIAMING ADULT USE/PRINCIPAL
Total* I-2•
Percent
Developable Zoned
of
Acres Acres
City
2,511 137
S•
• Area calculations do
not include
undevelopable property owned
by NSP, City, p
Golf Club, School District.
,I
e
t
TABLE 2
CITY OF KONTICRIW
PROPOSED ZONING DISTRICTS
ALLOWING ADULT USE/PRIKCIPAL
I-2 Percent
Separation Zoned Acres of City
700 feet 59 2.35%
In general terms, the I-2 zoned districts provide
adequate potential for adult uses. Adult uses are
restricted to the I-2 zoned districts.
(C) ADULT USE / PRINCIPALS
1. Adult use/principal activities shall be located at
least seven hundred (700) radial feet, as measured
in a straight line from the building upon which the
adult use/principal is located to the property line
of the following:
ADULTUSE.AND: 1/3/92 Page 6
n
ADULTUSE.AMD: 1/3/92 page 7
a. Residentially zoned property.
b. Agricultural land located in the neighboring
r
township or in the city that is designated in
the comprehensive plan for residential use.
C. A licensed day care center.
d. A public or private educational facility
classified as an elementary, middle, junior
high, or senior high school.
e. A public library.
f. A public park.
g. A church.
h. Amusement places such as roller rinks, dance
halls, and bowling alleys.
I. Liquor sales.
2.
Adult use/principal activities shall be located at
least four hundred (400) radial feet apart as
measured from one another.
3.
Adult use/principal activity is a separate use and
no two adult use/principal activities shall be
located in the same building or upon the same
property and each use shall be subject to the
above.
4.
Adult use/principal activities shall adhere to the
following signing regulations:
a. Sign messages shall be generic in nature and
shall only identify the type of business which
is being conducted.
b. Sign messages shall not contain material
classified as advertising.
C. Sign messages shall comply with the
requirements of size and number for the
district in which they are located.
S.
Adult use/principal activities shall be prohibited
In establishments where liquor is served.
6.
Adult use/principal activities shall be prohibited
at any place or event where minors are permitted.
n
ADULTUSE.AMD: 1/3/92 page 7
it
(D] ADULT USE / ACCESSORY:
1. Adult use/accessory activities are permitted only
in the B-3 or B-4 zoned districts.
2. Adult use/accessory activities shall comprise no
more than ten (10) percent of the floor area of the
establishment in which it is located.
3. Adult use/accessory activities shall be restricted
and prohibited from access to minors by the
physical separation of such items from areas of
general public access:
a. Movie Rentals. Display areas shall be
restricted from general view and shall be
located within a separate room, the access of
which is in clear view and under the control
of the persons responsible for the operation.
b. Magazines. Publications classified or
qualifying as adult uses shall be covered with
a wrapper or other means to prevent display of
any material other than the publication title.
C. Other Use. Adult use/accessory activities not
specifically cited shall comply with the
intent of this section subject to the approval
Of the Zoning Administrator.
4. Adult use/accessory activities shall be prohibited
from both internal and external advertising and
signing of adult materials and products.
5. Adult use/accessory activities shall be prohibited
In establishments where liquor is served.
6. Adult use/accessory activities shall be prohibited
at any public show, movie, caravan, circus,
carnival, theatrical, or other performance or
exhibition presented to the general public where
minors are admitted.
X11. 11e-3" HIGHWAY BUSINESS DISTRICT
Section 3 of Chapter 13 of the Monticello Zoning Ordinance to
be amended by adding the following:
(e) Adult Use/Accessory
ADULTUSE.AMD: 1/3/92 Page 8
n
IV. "I-2" HEAVY INDUSTRIAL DISTRICT
Section 2 of Chapter 16 of the Monticello Zoning Ordinance to
be amended by adding the following:
[E] Adult Use/Principal
Adopted by the Council this day of 19_
Ken Maus, Mayor
Rick Wolfsteller
City Administrator
ADULTUSB.AMD: 1/7/92 Pag* 9
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)' Separation - Blue
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EXHIBIT D
ORDINANCE AMENDMENT NO.
THE CITY COUNCIL OF MONTICELIA HEREBY ORDAINS THAT TITLE 3 OF THE
MONTICELLO CITY ORDINANCE RELATING TO BUSINESS REGULATIONS BE
AMENDED BY ADDING THE FOLLOWING CHAPTER:
CHAPTER 13
LICENSING OF ADULT USE BUSINESSESES
SECTION:
3-13-1: License Requirements
3-13-1: LICENSE REQUIREMENTS:
(A) No person, firm, partnership, or corporation shall operate an
adult use, either principal or accessory, without having first
secured a license as hereinafter provided. Licenses shall be
one of two types:
1. Adult Use/Accessory
T. Adult Use/Principal
(8) Application: In addition to such information the City Council
may require, the application shall also include:
1. If the applicant Ls an individual, the name, residence,
phone number, and birthdate of the applicant. If the
applicant is a partnership, the name, residence, phone
number, and birthdate of each general and limited
partner. If the applicant is a corporation, the namun,
residences, phone numbers, and birth dates of all those
persons holding more than five (S) percent of the issued
and outstanding stock of the corporation.
Z. The name, address, phone number, and birthdate of the
manager of such operation, if different from the owners.
3. The promisee where the adult use Is to be located within
the entire building.
4. A statement detailing any felony convictions by the
applicant and whether or not the applicant has ever
applied for or held a license to operate a similar type
of business in other communities. In the case of a
corporation, a statement detailing any felony convictions
by the owners of more than five (S) percent of the issued
j` and outstanding stock of the corporation, and whether or
Ordinance Amendment No.
Page 2
not those owners have ever applied for or held a license
to operate a similar type of business in other
communities.
5.
The activities and types of business to be conducted.
6.
The hours of operation.
7.
The provisions made to restrict access by minors.
8.
A building plan of the premises detailing all internal
operations and activities.
(C) License Fees:
1.
Each application for a license shall be submitted to the
City Administrator and payment made to the City of
Monticello. Each application for a license shall be
accompanied by payment in full of the required fee for
the license. All fees shall be paid into the general
fund. Upon rejection of any application for a license,
the City of Monticello shall refund the amount paid
except for that cost to investigate the applicant.
2.
All licenses shall expire on the last day of December in
each year. Each license shall be issued for a period of
one (1) year, except that if a portion of the license
year has elapsed when the application is made, a license
may be issued for the remainder of the year for a prorate
fee. In computing such fee, any unexpired fraction of a
month shall be counted as one (1) month.
3.
The annual fee for an adult use/accessory license shall
be $50. The annual fee for an adult use/principal
license shall be $250.
4.
No part of the fee paid by any license issued under this
ordinance shall be refunded except in the following
instances upon application to the City Administrator
within thirty (30) days from the happening of the event.
There shall be refunded a prorate portion of the fee for
the unexpired period of the license, computed on a
monthly basis, when operation of the licensed business
ceases no less than one (1) month before expiration of
the license because of:
a. Destruction or damage of the licensed premises by
fire or other catastrophe.
Ordinance Amendment No.
Page 3
b. If the licensee is an individual, the licensee's
disabling illness. If the licensee is a
partnership, the disabling illness of any general
partner. If the licensee is a corporation, the
disabling illness of any shareholder or
shareholders who in the aggregate hold fifty (50)
percent or more of the issued and outstanding
shares of the corporation.
C. If the licensee is an individual, the licensee's
death. If the licensee is a partnership, the death
of any general partner. If the licensee is a
corporation, the death of any shareholder or
shareholders who in the aggregate hold fifty (50)
percent or more of the issued and outstanding
shares of the corporation.
d. A change in the legal status making it unlawful for
the licensed business to continue.
(D) Grantina of License:
1. The City Council shall investigate all facts set out in
d the application and hold a public hearing within forty-
five (45) days after the City Administrator receives the
application. Opportunity shal l be given to any person to
be heard for or against the granting of the license.
After such investigation and administrative hearing, the
City Council shall grant or refuse the application. The
City shall grant or refuse the application within forty-
five (45) days after the public hoaring has closed.
Z. Each license shall be issued to the applicant only and
shall not be transferable to another holder. Each
license shall be issued only for the premises described
in the application. No license may be transferred to
another premise without the approval of the City Council.
If the licensee is a partnership or a corporation, a
change in the identity of any of the principals of the
partnership or corporation shall be deemed a transfer of
the license. All adult uses existing at the time of the
ordinance adoption shall be required to obtain an annual
license.
(E) Persons Inoliqiblo for License:
No license shall be granted to or held by any persons
1. Under twenty-one (11) years of age.
I
Ordinance Amendment No.
�. Page 4
2. Who has been convicted of any felony.
3. Who is not the proprietor of the establishment for which
the license is issued.
(F) Places Ineliqible for License:
1. No license shall be granted for adult uses on any
premises where a licensee has been convicted of a
violation of this chapter, or where any license hereunder
has been revoked for cause, until one (1) year has
elapsed after such conviction or revocation.
2. Except for uses lawfully existing at the time of this
ordinance adoption, no license shall be granted for any
adult use which is not in compliance with the City's
zoning regulations.
(G) Conditions of License:
1. Every license shall be granted subject to the conditions
in the following subdivisions and all other provisions of
this chapter, and of any applicable sections of the Code
of the City of Monticello or state law.
2. All licensed premises shall have the license posted in a
conspicuous place at all times.
3. In the case of an adult use/principal, no minor shall be
permitted on the licensed premises unless accompanied by
his/her parent or legal guardian.
4. Any designated inspection officer of the City of
Monticello shall have the unqualified right to enter,
inspect, and search the premises of a licensee during
business hours.
S. Every licensee shall be responsible for the conduct of
his/her place of business and shall maintain conditions
of order.
(H) Penalty:
1. Any person violating any provision of this ordinance is
guilty of a misdemeanor and upon conviction shall be
punished not more than the maximum penalty for a
misdemeanor as prescribed state law.
Ordinance Amendment No.
Page 5
2. Any violation of this ordinance shall be a basis for the
suspension or revocation of any license granted
hereunder. In the event that the City Council proposes
to revoke or suspend the license, the licensee shall be
notified in writing of the basis for such proposed
revocation or suspension. The Council shall hold a
public hearing for the purpose of determining whether to
revoke or suspend the license, which public hearing shall
be within forty-five (45) days of the date of the notice.
The City Council shall determine whether to suspend or
revoke the license within forty-five (45) days after the
close of the hearing and shall notify the licensee of its
decision within that forty-five (45) day period.
(I) Right of Appeal: Any applicant whose application for an adult
use license is denied, or any licensee whose license is
revoked or suspended, may appeal such denial, revocation, or
suspension to the District Court of the County of Wright
within 30 days after the denial, revocation, or suspension of
such license.
Adopted this day of 1991.
mayor
City Administrator
EXHIBIT E
RESOLUTION 92 -
RESOLUTION ADOPTING FINDINGS AND CONCLUSIONS
SUPPORTING ESTABLISHMENT OF REGULATIONS
GOVERNING ADULT LAND USES
CITY OF MONTICELLO
ADULT LAND USES STUDY
WHEREAS, on January 14, 1991, the City Council for the City of
Monticello established an interim ordinance imposing a moratorium
on adult-oriented land uses on certain property located within the
city of Monticello; and,
WHEREAS, the Planning Commission has reviewed the staff's report on
various adult land use regulatory schemes and legal considerations
related to adult entertainment land use restrictions; and,
WHEREAS, the Planning Commission held a public hearing on the
matter on April 2, 1991, and on December 3, 1991, to consider the
matter and to receive public input on the issues; and,
WHEREAS, the Planning Commission has considered all of the
documentary evidence presented to it by staff through the public
hearings upon which it bases the following findings and
conclusions:
FINDINGS:
1. The community goals identified in the Comprehensive Plan
of the City of Monticello include encouraging steady,
careful growth by maintaining reasonably high standards;
to utilize the inherent advantages of the community in
terms of location, existing population, school system,
available land, etc., to gain the best possible advantage
from these assets so as to develop a reputation as a
community combining all the desirable elements for living
in Minnesota; to develop urban land uses according to a
set of uniform standards applicable to the City. Such
standards should govern land use, public improvements,
health conditions, safety features, aesthetic
considerations, and other elements of the urban
environment for purposes of safeguarding the public
health, safety, convenience, and general welfare; to
dovolop a sound and broad tax base for the City and the
school district in order to provide revenue for adequate
public facilities and services without creating undue
burdens upon property owners.
2. As expressed in Minnesota Statutes, Section 617.291, it
Is the declared policy of this state to prevent
commercial exposure of minors to sexually provocative
11
ADULTSTD.RES: 1/3/92 page 1
written, photographic, printed, sound, or published
materials as defined therein which are deemed harmful to
minors.
3. Adult land uses have an impact on the neighborhoods
surrounding them which is distinct from the impact caused
by other commercial uses, this fact substantiated by
studies conducted in other cities possessing
characteristics similar to characteristics possessed by
the city of Monticello.
4. Residential and commercial neighborhoods located within
close proximity to adult theaters, bookstores, and other
adult land uses experience increased crime rates (sex
related crimes in particular), lowered property values,
increased transiency, and decreased stability of
ownership.
5. The adverse impacts which an adult land use has on
surrounding areas diminishes as the distance from the
adult land use increases.
6. Studies of other cities have shown that among the crimes
which tend to increase either within or in the near
vicinity of adult entertainment uses are rapes,
prostitution, child molestation, indecent exposure, and
other lewd and lascivious behavior.
7. The City of Phoenix Study confirmed that the sex crime
rate was on an average six times higher in areas with at
least one adult entertainment use as it was within
comparable areas of their city without such adult uses.
S. Studies of other cities have shown that the values of
both commercial and residential properties either are
diminished or fail to appreciate in value at the rate of
u User Compaiabla properties when located in piuxlwiLy to
adult entertainment uses.
9. The adverse impact of adult uses on commercial areae is
increased by the presence of more than one adult
entertainment use in close proximity to another such use.
10. The number and rate of real estate listings increases in
areae in which adult entertainment uses are located.
11. The Indianapolis study established that professional real
estate appraisers believe that an adult bookstore would
have a negative effect on the value of both residential
and commercial properties within a one to three block
area of the store.
12. Many members of the public perceive areas within which
adult entertainment uses are located as lose safe than
other areae which do not have such uses.
ADULTSTD.RESi 1/3/92 Page 2
11
13. The cities whose adult entertainment use reports have
been considered in these proceedings have strip
commercial development patterns and other commercial
neighborhood characteristics analogous to those found or
developing in the city of Monticello.
CONCLUSIONS:
1. The impacts which adult entertainment uses have on
surrounding areas should be addressed through a distinct
set of land use regulations directed specifically at such
adult entertainment uses.
2. Adult entertainment land uses should not be located in
close proximity to buildings or facilities where children
are the dominant clientele or patrons of the service,
product, or facility usage offered by such building or
facility.
3. The existing land use regulations of the City of
Monticello inadequately address the unique impacts which
adult entertainment uses have on surrounding
neighborhoods and fail to adequately foster the community
goals declared in the comprehensive plan and in state
law.
4. Adult entertainment uses should be located in areas of
the city which are not in close proximity to commercial
areas, residential areas, churches, parks, and schools.
4. Regardless of whether adult entertainment uses have
currently had an adverse impact on the areas surrounding
them in this city, the experience of other cities, as
documented in the studies considered, confirms that
regulation of adult entertainment uses is essential to
prevent future deterioration of surrounding neighborhoods
and adverse social impacts associated with such uses.
6. The concerns which have prompted public hearings in this
city are similar to the concerns which motivated the
communities of Indianapolis, Indlana; St. Paul,
Minnesota; Phoenix, Arizona; Seattle, Washington;
Rochester, Buffalo, Big Lake, end Champlin, Minnesota, to
undertake their studies of adult entertainment uses;
consequently, the results of those studies are relevant
to the existing or foreseeable impacts which such uses
can have on the areas surrounding them in this city.
7. The concentration of adult entertainment uses in
commercial areas or the location of adult entertainment
uses in close proximity to residential uses, churches,
parks, and schools will result in devaluation of property
values and docreases in commercial business sales,
ADULTSTD.RES: 1/3/92 Page 3
N
thereby reducing tax revenues to the city and adversely
impacting the economic well-being of the citizens of this
city.
8. Location of adult entertainment uses in proximity to
residential uses, churches, parks, schools, bars, and
other adult entertainment uses very likely would lead to
increased levels of criminal activities, including
prostitution, rape, assaults, and other sex-related
crimes in the vicinity of such adult entertainment uses.
9. Regulation of adult entertainment uses is essential to
ensure that family values and youth values in the city of
Monticello are protected and provided a physical
environment in which to develop in a healthy and
wholesome manner.
10. Adult entertainment uses should be located in the heavy
industrial (I-2) zoning district and at least 700 feet
away from any of the following zoning districts and/or
land uses.
- Existing residential zoning district or land designated
in the comprehensive plan as a future residential
zoning district.
- Public or private park or recreation facility.
- Church
- Day care facility
- School property
- Liquor sales
11. Based on the findings and conclusions outlined above, the
City of Monticello Planning Commission does hereby
recommend adoption of regulations governing adult land
uses, which is attached and incorporated herein.
PASSED AND ADOPTED BY THE PLANNING COMMISSION OF THE CITY OF
MONTICELL40 THIS DAY OF , 1992.
Chairperson
ATTEST:
ADULTSTO.RES: 1/3/92 Page 4
EXHIBIT F
rN Northwest Associated Consultants, Inc.
ACReA N P A NNI Ne • DHS I ON • YARK E T R ES F ARCH
VL
PLANInM BBPOAT
TO: Jeff O'Neill
FROM: Allan Hunting/Stephen Grittman
DATE: 11 December 1991
RE: Monticello - Adult Use
FILE NO: 191.07 - 91.04
Our office has conducted a review of the Monticello Adult Use
Ordinance and licensing provisions with regard to the primary
issues vhich have confronted other cities during their ordinance
review process. This report will identify the issues confronted
by other cities and coa>ment on Monticello's approach to these
issues and the impacts of those choices.
L
The primary issues to be addressed in the ordinance and licensing
section include:
1. The City must provide a reasonable opportunity area for
adult uses.
2. The zoning districts in which adult use -principal and
accessory will be allowed.
3. Which land uses to protect from the Secondary impacts of
adult uses.
4. An appropriate spacing requirement between protected uses
and adult uses.
5. Whether to license adult use -accessory.
Uses 1.4 are all interrelated in that they establish the
opportunity area for adult use -principal and accessory to operate
in Monticello.
5775 Wayzata Blvd.• Suite 555 • St. Louis Park. MN 55416 • (612) 595.9636•Fax. 595.9837
J The decision of which zoning districts to allow adult use differs
from city to city. Factors influencing the decision include:
amount of commercial and industrial zoned land, existing
development patterns, existing adult uses.
Monticello has opted to provide adult use -principal in the I-2
district only. Monticello appears to have ample 1-2 land,
however, the City must be careful as it may be argued that
industrial zoning does not provide for viable commercial
opportunities. This exact argument is being tested in the
courts currently between the City of Ramsey and an existing adult
use establishment. Other cities our office has worked with
drafting ordinances have chosen to zone both commercial and
industrial and only industrial for adult uses. The City Attorney
should review carefully this zoning decision and comment to the
City on its legal ramifications.
The land uses chosen to be protected from the secondary impacts
has been typically the same list in all communities. The primary
thrust is to protect residential uses and uses where there is a
concentration of children and minors. Upon reviewing the City's
list of protected uses, Monticello may, however, choose to
separate adult uses from liquor establishments. This has been
used in other cities to further protect neighborhoods from the
secondary impacts.
The required spacing between adult uses and protected uses varies
from city to city due mostly to the actual size of the City. It
is recommended to provide spacing as large as possible within
the confines of allowing a reasonable opportunity area. Many
ordinances our office reviewed had spacing requirements of 1,000
feet and even has high as a quarter mile. Visual review of the
zoning map suggests that the 700 foot proposed spacing is
sufficient, however, it could be increased if there is still
sufficient opportunity area.
The licensing requirements of adult uses have been pretty
standard among the ordinances our office has reviewed and
created. The primary issue is whether to license adult use -
accessory or not. Some cities have chosen to license, while
others have not. Some cities have opted not to license accessory
use because it would involve licensing any store which sells
Playboy, Penthouse, etc., as part of its selection of magazines.
These stores would include most convenience stores, food/gae
stations, video stores and drug stores. Since the sale of these
magazines is not the primary use of the stores, some cities have
chosen not to require adult use -accessory licensing.
To provide further background for the City to determine the
negative effects of sexually oriented businesses, the city should
be provided with and cite as the basis for regulation, the
following documents: Report of Attorney General's Working Group
The Supreme Court has determined that a City need not conduct its
own investigation on secondary effects, but may rely on the
existing studies done by other cities as the basis for
establishing its own ordinance. It is in this regard that the
City Council be provided with copies of the previously mentioned
documents to read and put into the record as the basis for the
need to regulate the secondary effects of adult uses.
The Monticello Ordinance appears to address the primary issues
regarding adult uses. The City needs to be aware that allowing
adult use principal only in industrial zoning may be later
challenged and that the City Attorney needs to review the
ordinance and advise the City accordingly.
r
N
JrN Northwest Associated Consultants, Inc.
Cj URBAN PLANNING • D E S I 6 N• MARKET RESEARCH
TO: Jeff O'Neill
FROM: Allan Hunting/Stephen Grittman
DATE: 31 December 1991
RE: Monticello - Zoning Revision -.Adult Use
PILE NO: 191.07 - 91.04
Upon review of the presented Adult Use Ordinance, the City, while
making its decision on passage of this ordinance, must be
provided with the background work which follows the Supreme Court
decisions, Young V. American Mini Theatres. 06 S. Ct. 2440
(1976), and City of Renton V. Playtime Theatres. 106 S. Ct. 925
(1966) which upholds the validity of this zoning and licensing
amendment. Two documents, Resort of Attorney General's Working
Grout on the Regulation of Sexually Oriented Businesses and the
Rochester/Olmsted county Planning DeRArtment Adult Rntertainment
Research Renort, horh of which are bAing Submitted to the City,
provide a summary of the studies done by other cities on this
subject to determine the negative effects caused by sexually
oriented businesses. It is from these studies that have
determined the negative effects these businesses have on the
neighborhoods in which they are located and form the basis that
cities can regulate the secondary effects of sexually oriented
businesses.
A summary of the foundation for the basis of regulating secondary
effects are formed as the following:
a) A considerable number of communities throughout the nation
have studied the impacts which sexually oriented businesses
have on the areae surrounding them.
b) These studies have concluded that sexually oriented
businesses have an adverse impact on the surrounding
17 neighborhoods.
5775 Wayzata Blvd. - Suite 555 - St, Louis Park, MN 55416 • (612) 595.9636•Fax. 595.9837
C) Residential neighborhoods in proximity to sexually oriented
businesses suffer adverse effects including increased crime
rates, lowered property values, and increased transiency.
d) Values of both commercial and residential properties are
diminished when located in proximity to adult entertainment
businesses.
e) The adverse impact on connercial areas is increased by the
presence of more than one sexually oriented business in
close proximity to another sexually oriented business.
f) The impact which a sexually oriented business has on the
surrounding area appears to lessen as the distance from the
sexually oriented business increases.
g) Reasonable -time, place and manner" restrictions which
address the 'secondary" impacts of sexually oriented
businesses are constitutionally permissible.
h) Any proposed regulation must be essentially 'content
neutral • . The First amendment prohibits regulations which
attempt to regulate written or other expressive materials or
acts on the basis of their content.
i) Obscene materials are exempt from the protections of the
First Amendment and can be regulated through existing or
pending criminal laws.
Since it has been determined that residential areas near sexually
oriented businesses have higher crime rates and lower property
values, this then allows the City to set limits as to the
proximity of sexually oriented establishments to residential
areae, schools, churches. Regulating distance between adult uses
limits the increased crime associated with conglomeration of
adult uses.
The Supreme Court has ruled that a City must provide a reasonable
opportunity area for sexually oriented businesses to exist. In
this regard, the City of Renton case established 5 percent of the
City as adequate.
The Supreme Court has also determined that a City need not
conduct its own investigation of secondary effects, but may rely
on the existing studies done by other cities as the basis for
establishing its own ordinance. It is in this regard that the
City Council be provided with copies of the previously mentioned
documents to read and put into the record as the basis for the
need to regulate the secondary effects of adult use
establishments.
i, The City, as part of its findings on the adoption of adult use
14- regulations, must satisfactorily address two issues:
Create a public record documenting Monticello's
justification for regulation is based on factual evidence
that the regulation is needed to minimize the adverse
secondary effects of sexually oriented businesses on the
community.
2. Establish that the regulation affords sexually oriented
businesses a reasonable opportunity to open and operate
within the community.
The City of Monticello established the opportunity area for adult
use - principal businesses by providing opportunity in specific
zoning districts based on the opportunity area set forth in
Renton and providing spacing requirements to regulate the
secondary effects. The City will then create a public record to
prove that the Planning Commission and the City Council made
findings that the adopted regulations were required to combat the
adverse secondary effects of sexually oriented businesses.