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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. C 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. Page 1 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. Page 2 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 17 Page 3 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. 141 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. 0 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 T L 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 r 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 e 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. 8 L 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. 9 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 ' 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 f 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. -14- 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 •18• 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 -19- 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� -25- 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 -28- z 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. -30- 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 �j YP 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. 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I.rtatflr.d a.0 dnemi.d 00 Ur l Y7 P"t l lives d 6®— Ole OYlte :. • � team&Vr= Ib1i.n1 14tasaed Ib Win=, rho tamer{, tddOtlp tr ltrdµb • hunfeA/ e.•e1ed Y ��aer��..�t7�t� ci- the •Ir.iltMt a.d.rys svee Uuds0 dtha tt.d gee's area does. w • l „e... ordrn..tala.►itillamisOrrraea mcaasr.ane.ml l.slntrll kWn Wadfeaacaw The mlY bet rSin So ase :bbft, -emo".e4a� � .O•tlPes rdi..en.lua lw mete nbPrvm lb .h=.ae aoeuasm.11acmm••� hOtllYkrO►Wnd11B1a�d1.Wtarr4l 9-9114= rP perrau�amnm/iwsm ld ries fu. uymlN dtailt eale•do Oto 0. ea%.., dtgdW.tr. lamest PohY COIR Mas Am. aid thu•e l/ n be i. m.mnee, leim.rb.Ot•rltet bliplrlhiltl�l>i htbhalmdntIDlW. Sungate Villas rb.sa.s.cr ardmn Me's less bel, lo.— Wittena 1SIpkd m"uritbtat looWus. Midis daft a ddrly Sees" 1Y _t Mmptnnaa.'Ip.asad• Wassists..ho��al b--;Wd at�YYuMa4�dhr+lltetlmSMrll4araplllrUl u. c _ iNl:lYla,Alaldalr•01card— 31IODD L 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 �L7 Ate ,ortunity Areas - Green - 59 ACRES - 2Z )tected areas - Solid Black )' Separation - Blue NO. . ..... 4f 9q 10. -, 1� , .. . m % lb DE 7WN R A 17- 3 2 T Aoki 2 F, RmPU AO AO 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.