06-18-07 PCITEM 3_1
NORTHWEST ASSOCIATED CONSULTANTS, INC.
4800 Olson Memorial Highway, Suite 202, Golden Valley, MN 55422
Telephone: 763.231.2555 Facsimile: 763.231.2561 planners,' nacplanning.com
PLANNING REPORT
TO: Otsego Planning Commission
FROM: Daniel Licht, AICP
RE: Otsego — Lorbiecke; Subdivision Ordinance Variance
REPORT DATE: 13 June 2006 ACTION DATE: 30 July 2007
NAC FILE: 176.02 — 07.11 CITY FILE: 2007-20
BACKGROUND
Timothy and Wendy Lorbiecke have purchased the lot at 14166 62nd Street on a
contract for deed. The property is located east of Oakwood Avenue, south of 70th Street
and zoned A-1, Agriculture Rural Service District. At the time of the purchase, the site
was developed with a single manufactured home and detached accessory building.
The Lorbieckes removed the manufactured home which was in poor condition with the
intent of constructing a new stick built single family dwelling on the property. We would
also note that the City had been involved with the previous property owner on an on-
going basis to address junk and blight violations on the property.
Single family dwellings and related accessory buildings are permitted uses in the A-1
District. However, access to the lot is off of 62nd Street east of Oakwood Avenue which
was accepted by the City as a half -street in 1998. Section 21-7-7.J of the Subdivision
Ordinance prohibits issuance of building permits accessed only from half streets. As
such, the ability to construct a new single family dwelling on the property requires
consideration of a variance from the provisions of the Subdivision Ordinance.
Exhibits:
A. Site Location
B. Building Permit Application/Site Plan
ANALYSIS
62nd Street. At the time the subject site and the other single family lots on the north
side of 62nd Street were subdivided, 62nd Street was in effect a shared private driveway.
To address long term maintenance, access and public safety issues, the City in 1998
accepted dedication of 62nd Street as a 33 foot right of way having an 18.5 foot wide
gravel surface. In this condition, 62nd Street was dedicated as a half street with the
intent that the additional right-of-way necessary to meet City standards would be
dedicated if and when the undivided property to the south develops.
The City Council is currently in discussions with the property owner to the south of 62nd
Street regarding the legal entitlements and boundaries of the 62nd Street right-of-way.
The City Attorney has stated that the City has legitimate rights to 62nd Street as a public
right-of-way relative to access to the lots on the north side of 62nd Street. As such,
resolution of this issue with the property owner to the south is not a prerequisite for
consideration and approval of this application.
Half Streets. When the City Council accepted 62nd Street, specific note was made of
Section 21-7-7.J of the Subdivision Ordinance that states in part that:
"All lots having frontage or sole access from a half street are prohibited
from being eligible for building permits."
An overall objective of the City's Zoning and Subdivision Ordinances is to ensure that
development is allowed only when accompanied by necessary public infrastructure,
including adequate public streets. Half streets do not meet the City's minimum
development standards and thus the Subdivision Ordinance includes a prohibition for
development occurring only with access to a half street. A half street would typically
only be approved as part of a subdivision to provide for future extension of a public
street serving that may be needed in the future but which is not needed to
accommodate a current development proposal.
Variance Criteria. It is important to distinguish that the variance request relates to
requirements of the Subdivision Ordinance, which do not have the same undue
hardship threshold The criteria for consideration of a variance from the provisions of the
Subdivision Ordinance are established in Section 21-10-4:
That there are special circumstances or highly unique conditions
affecting the property such that the strict application of the
provisions of this Chapter would deprive the applicant of the
reasonable use of his land.
2. That the granting of the variance will not be detrimental to the
public health, safety and welfare or injurious to other property in the
territory in which property is situated.
3. That the granting of the variance will not increase the flood hazard
or flood damage potential.
2
4. That the use proposed by the applicant would not result in a stage
increase violating the requirements of Minnesota Statutes,
Chapters 104 and 105, as such chapters may be amended or
replaced from time to time, and any applicable requirements
imposed by the Federal Emergency Management Agency.
5. That the variance is to correct inequities resulting from an extreme
physical hardship such as topography.
6. Hardships relating to economic difficulties shall not be considered
for the purpose of granting a variance.
7. That the hardship is not a result of an action or actions by the
owner, applicant or any agent thereof.
The subject site is a lot of record that had been developed with a single family
manufactured home. The applicant's goal in removing the existing dwelling and
requesting a building permit for a new single family dwelling is to improve the livability of
the property. In that the applicant is replacing an existing manufactured home with a
new single family structure, City staff's opinion that the intent of the Subdivision
Ordinance provision to not increase the use of the half street for development beyond
the conditions that existed when the street was accepted by the City is maintained.
Furthermore, the improvement of the property is consistent with the policies of the
Comprehensive Plan to strengthen the quality of individual neighborhoods and
redevelop blighted properties. Without approval of a variance, the applicant's would be
denied reasonable use of the land and technically would not have been able to upgrade
the existing buildings on the property. This last factor suggests a need to clarify
Section 21-7-7.J of the Subdivision Ordinance that no property accessed only from a
half street shall be eligible for a building permit to construct additional principal uses.
RECOMMENDATION
City staff recommends approval of a variance from Section 21-7-7.J of the Subdivision
Ordinance to allow construction of a new single family home on the subject site based
on a finding that the variance is due to the unique circumstances regarding dedication of
62nd Street as a half street accessing existing developed lots, that the variance does not
increase the number of homes accessed from 62nd Street from the date which the City
accepted the right-of-way and that not approving the variance would deny the
applicant's reasonable use of the property.
POSSIBLE ACTIONS
A. Motion to approve a variance from Section 21-7-7.J of the Subdivision
Ordinance for 14166 62nd Street allowing construction of a single family home,
subject to the following conditions:
1. Construction of a new single family home shall require issuance of a
building permit approved by the Building Official.
2. Construction of a new single family home and any site alterations shall be
subject to the requirements of the Zoning Ordinance.
B. Motion to deny the application based on a finding that the request is inconsistent
with the Comprehensive Plan and the specific criteria for variance established by
the Subdivision Ordinance.
C. Motion to table.
C. Mike Robertson, City Administrator
Judy Hudson, City Clerk/Zoning Administrator
Tim Roche[, Building Official
Andy MacArthur, City Attorney
Ron Wagner, City Engineer
Timothy and Wendy Lorbiecke, applicant
F.
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APPLICANT COMPLETE INFORMATION BELOW
14166 62nd Street NE or PID #
Project Address: —---
Legal it scriptic�ll: The West 197 feet of the NW 1/4 of SW 1/4 of Section 33, Township 121, Range 23
Property Owner: Timothy and Wendy Lorbiecke Phone 651-558-7835 ^
General Contractor:
Contractor Address:
City:
Architect:
Engineer:
Plumbing Contractor:
Timothy Lorbiecke [>icense #: N/A phone: 651-558-7835
23 Third Street NW Apt #102
Elk River, MN Ww - — Zip: 55330
License. #:
Mechanical Contractor:
License #:
License #:
Phone:
Sewer/Water Contractor: Phone:
Phone:
Type of Construction ____ ___ _ Use/Occupancy
Proposed Use (Check One): Dwelling X - Private Gara�.ge ___..--__ Deck . Home Addition
Pole Build.ino Finished Basement Three Season Porch Business/Commercial
Fireplace ` _ Siding f=urnace —_ Water Heater _ Other - ------
Description of Projcct: 2 Bedroom house, one story with slab and on foundation
Valuation
$120,000
This permit hecomes null and VOW if work'or construction authorized i, nut conhnhenced within 180 days, or if construction or work is suspended or aban.
finned for a pe=riod oi' 190 days at any time after work has commenced.
I hereby certify that I hate read and examined this application and know the same to he true and cm-ect. Ali provisions of laws and ordinances governing
this type of, work will he complied with whether specified herein or not. The granting of a permit dcbes no[ presume to give auQhnrity to violate or cancel
the provision; of any other state cit' local law regulating construction or the performance of construction.
Name tpleau printf: _ Timothy_ Lorbiecke Address: 23 Third Street NW Apt #102
City: ,Elk River, MN — lip: 55330 Phone: 651- 558-7835
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ITEM 3_2
NORTHWEST ASSOCIATED CONSULTANTS, INC.
Pr IV
4800 Olson Memorial Highway, Suite 202, Golden Valley, (VIN 55422
Telephone: 763.231.2555 Facsimile: 763.231.2561 plan ners_c�-nacplanning.corn
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TO: Otsego Planning Commission
FROM: Cassie S-Georgopoulos/Daniel Licht
DATE: 13 June 2007
RE: Otsego — EMF Co -located Antenna CUP
FILE NO: 176.02 — 07.13
BACKGROUND
Educational Media Foundation of Rocklin, California has applied for a Conditional
Use Permit (CUP) to consideration the addition of three antennas and a 2ftx2ft
cabinet on a 4ftx6ft concrete pad within existing fenced compound owned by
America Towner Corporation at 6155 Kadler Ave NE. The property located south
of CSAH 37 and west of Kadler Avenue in the Golden Polygon area is zoned A-
1, Agricultural -Rural Service District. Section 20-51-5.1 of the Zoning Ordinance
allows personal wireless service towers and antennas in the A-1 District by a
Conditional Use Permit.
Exhibits:
A. Site Location
B. Site Plan/Structure Plan
ANALYSIS
Existing Tower. The tower to which the antennas are proposed to be mounted
is a 100 foot tall erected in 1996 by U.S. West Cellular. This tower is grouped in
proximity to an existing 250 foot tall WDAY tower and 260 United Power
Association tower on leased property. The construction of this tower predates
the City's current antenna regulations within the Zoning Ordinance including the
75 foot height limit.
The current 100 foot height makes the existing tower a non -conforming structure
that is allowed to continue to operate in a manner consistent with its original
approvals, but may not be expanded or altered except as provided for by Section
15 of the Zoning Ordinance. The approvals for the existing tower included
requirements to allow for co -location of additional antennas upon the structure so
as to minimize the need for additional towers. As such, the current application
does not affect the non -conforming status of the existing tower.
Co -Located Antenna. Performance standards outlined in Section 20-33-2 of the
Zoning Ordinance regulate installation of additional antennas as follows:
Structural design, mounting and installation of the antenna shall be in
compliance with manufacturer's specifications and shall be verified and
approved by a registered professional engineer.
Comment: Specifications have been submitted with the application.
2. Unless the antenna/antenna support structure and land is under the same
ownership, written authorization for antenna erection shall be provided by the
property owner.
Comment: The owner has provided his signature in support and application of
the project for additional antennas upon the existing tower.
3. No advertising message shall be affixed to the antenna structure.
Comment: No advertising messages have been proposed.
4. The height of the antenna shall be the minimum necessary to function
satisfactorily, as verified by an electrical engineer or other appropriate
professional.
Comment. The proposed new antennas are to be attached to the existing
antenna and are to be no higher than the existing structure.
5. Antennas shall not be artificially illuminated unless required by law or by a
governmental agency to protect the public's health and safety.
Comment. No lighting has been proposed for the structure.
6. If a new antenna support structure is to be constructed, it shall be designed so as
to accommodate other users including but not limited to other personal wireless
service communication companies, local police, fire and ambulance companies.
Comment: No new support structure is proposed. The current structure is
designed to allow co -location; therefore, the added antenna will not over burden
the existing structure.
7. Antenna support structures under two hundred (200) feet in height shall be
painted silver or have a galvanized finish to reduce visual impact, unless
otherwise required by federal law.
Comment: No modification of the existing tower is proposed..
8. Transmitting, receiving and switching equipment shall be housed within an
existing structure whenever possible. If a new equipment building is necessary
for transmitting, receiving and switching equipment, it shall be situated in the rear
yard of the principal use and shall be screened from view by landscaping where
appropriate.
Comment: A new equipment box is proposed to be housed within the existing
facility. No other changes to facility shall be made.
CUP Criteria. In addition to the specific performance standards applicable to the
allowance of the co -located antennas, the Planning Commission must also consider the
criteria outlined in Section 20-4-21 of the Zoning Ordinance:
The proposed action's consistency with the specific policies and provisions of the
official City Comprehensive Plan.
Comment: The existing antenna was approved in accordance with
comprehensive Plan and the proposed co -located antenna will not change the
site from its future configuration.
2. The proposed use's compatibility with present and future land uses of the area.
Comment. The proposed antennas will be co -located on the existing antenna
and shall not change the continued use of the site.
3. The proposed use's conformity with all performance standards contained in the
Zoning Ordinance (i.e., parking, loading, noise, etc.).
Comment: The location of the proposed antennas shall conform to all applicable
Zoning Ordinance and Engineering Manual performance standards.
4. Traffic generation by the proposed use in relation to the capabilities of streets
serving the property.
Comment: The proposed antennas are not anticipated to generate any additional
traffic in the surrounding areas.
3
5. The proposed use's impact upon existing public services and facilities including
parks, schools, streets, and utilities and its potential to overburden the City's
service capacity.
Comment: The proposed use is not anticipated to have a negative impact to the
City's service capacity.
RECOMMENDATION
The applicant has submitted necessary information demonstrating compliance with the
requirements of the Zoning Ordinance to co -locate three new antennas upon the current
antenna at 6155 Kadler Ave NE. We recommend approval of the CUP with the
conditions as outlined below.
POSSIBLE ACTIONS
A. Motion to approve a CUP allowing three new antennas upon the current antenna
at 6155 Kadler Ave NE.
B. Motion to deny the application based on a finding that the request is inconsistent
with the Comprehensive Plan and Zoning Ordinance.
C. Motion to table.
C. Mike Robertson, City Administrator
Judy Hudson, City Clerk/Zoning Administrator
Andy MacArthur, City Attorney
Ron Wagner, City Engineer
Dwayne Lyerly, American Tower Corp.
4
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SITE ADDRESS:
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A-2
ITEM 3-3
NORTHWEST ASSOCIATED CONSULTANTS, INC.
4800 Olson Memorial Highway, Suite 202, Golden Valley, MN 55422
Telephone: 783.231.2555 Facsimile: 763.231.2561 planners@nacplanning.com
MEMORANDUM
TO: Otsego Planning Commission
FROM: Laurie Shives / Daniel Licht
DATE: 13 June 2007
RE: Otsego — Sexually Oriented Uses; Regulation Analysis
FILE: 176.08
BACKGROUND
The City Council has directed the Planning Commission to review the City's regulations
applicable to adult use businesses. The need for this review is to ensure that the
current regulations provide a reasonable balance in protecting the health, safety and
welfare from potential secondary negative effects found to be caused by adult use
businesses and the adult use businesses rights under the First Amendment to have an
opportunity to locate within a given City. The material in this memorandum includes a
brief discussion of basic zoning issues and concepts regarding the control of sexually
oriented uses. The discussion is followed by an analysis of optional "adult use
opportunity areas" within the City of Otsego and other regulations regarding the
operation of adult uses.
Exhibits:
A -C. Supporting Adult Use Studies
D. Adult Use Impacts Resolution
E. Adult Use Opportunity Area Analysis — Existing 600 -Foot Separation Distance
F. Adult Use Opportunity Area Analysis - Potential Separation Distances
G. Proposed Zoning Ordinance Amendment - Separation Distance
H. Proposed Adult Use Business License Code
ANALYSIS
Sexually Oriented Use Impacts. An initial step in any evaluation effort is to first define
and understand the topic which is being addressed. As it relates to sexually oriented
use control, this is a highly critical aspect of the regulatory process. Sexually oriented
uses are afforded special protections under the First (Free Speech) Amendment of the
U.S. Constitution. As a consequence, an extreme degree of precaution must be
exercised so as to not restrict or infringe upon constitutionally protected rights.
Simultaneously, if and where a need may exist, appropriate measures that protect the
general health, safety, and welfare of the public must be outlined. Based upon work
completed in other Minnesota cities, sexually oriented/adult uses have been defined as
follows:
Sexually oriented/adult uses include adult bookstores, adult motion picture
theaters, adult mini -motion picture theaters, adult massage parlors, adult
steam room/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/motels, adult body painting studios,
and other premises, enterprises, establishments, businesses or placed
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 areas" which are
capable of being seen by members of the public. Activities classified as
obscene, as defined by Minnesota Statutes 617.241 are not included.
Due to the extent of controversy surrounding sexually oriented use activities, there is a
vast amount of documentation on the subject matter. This material can be divided into
two general categories. The first category deals with the psychological and behavioral
impact of sexually oriented materials and uses upon individuals. To a major extent, the
findings of such studies concluded that for a typical, well adjusted, mature person,
sexually oriented uses do not produce negative results. An annotated bibliography of
studies which demonstrated these findings has been included as Exhibit A.
The second type of information available deals with a broader community or societal
perspective and such issues as crime, property values, and physical deterioration.
Exhibit B of this report provides a listing of documentation and studies which are
available on community based impacts of sexually oriented. It is on the basis of this
second type of study information, related to the potential negative impacts to a
community, that control of sexually oriented/adult uses has been judged as acceptable
by the courts. The matter of potential negative impact is an extremely important factor
of sexually oriented use control. Due to the Constitutional protections, sexually oriented
use controls cannot be "content" based. In other words, up to the point where material
or activities become classified as obscene, a city cannot impose regulations. Rather,
communities can only enact ordinances which address what has been defined as
negative or adverse "secondary" impacts.
2
Within the context of community impact of sexually oriented/adult uses, City officials are
provided with copies of the Report to the Attorney General's Working Group on the
Regulation of Sexually Oriented Businesses, June 6, 1989, as a summary reference on
the sexually oriented/adult use topic (Exhibit C). Based primarily upon this information,
as well as related documentation, the Otsego City Council must determine that there is
potential for adverse secondary impacts of adult uses in the community and that
appropriate controls should be pursued which minimize these negatives while
simultaneously providing reasonable opportunity for sexually oriented/adult uses to
locate and operate within the City, pursuant to Constitutional rights. Once this
determination has been made, the City Council must pass a resolution that states this
finding. A draft of such resolution is presented in Exhibit D.
To summarize, the basis for any subsequent City actions which are proposed to
regulate sexually oriented uses is the documentation provided to City officials and staff
that has established:
Activities defined as sexually oriented/adult uses are protected by the First
Amendment to the U.S. Constitution.
2. A community must provide reasonable opportunity for sexually oriented/adult
uses to exist. The Renton, Washington U.S. Supreme Court case and others
provides guidance in this regard.
3. Sexually oriented/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 sexually oriented/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
sexually oriented/adult uses from one another.
6. A community has the right to police sexually oriented/adult uses to insure they
are operating in a fashion where the secondary impacts or effects are mitigated
to the extent possible.
The regulation of sexually oriented uses must deal only with the physical aspects of the
activity and is therefore limited to matters involving the minimizing of adverse secondary
impacts. The regulation of adult uses/sexually oriented businesses occurs through
three possible types of control. The first type is zoning, which addresses the physical
location of adult use/sexually oriented business operations. The second type of control
is business licensing. This form of regulation focused upon the operation as well as the
operator. The general intent of business licensing is to insure a lack of access by
minors as well as lessening the potential for criminal activity.
In regards to utilizing these control methods, there are several issues and concepts
which need to be recognized. A considerable amount of time and discussion has been
invested by several major U.S. cities on whether sexually oriented uses should be
concentrated or dispersed. The American Society of Planning Officials, Planning
Advisory Service Report #327, Regulating Sex Businesses, by William Tower, May
1977, details the various considerations of each approach. From this and other such
background data, it is concluded that concentration of sexually oriented uses
compounds and intensifies the potential of adverse secondary impacts and as a result,
dispersion of such activities from sensitive activities, as well as other sexually oriented
uses, is the most appropriate approach.
In past studies that Northwest Associated Consultants has undertaken, it has been
apparent that sexually oriented uses are not all of one "type." In zoning terminology,
sexually oriented uses fall within a context of primary or secondary type of operations.
Secondary operations are in essence accessory sexually oriented use examples that
include the sale of adult magazines such as PlayboX or Penthouse by convenience
stores or the rental of "X" rated movies by video rental stores. Primary operations are
those in which the sexually oriented use is the principal use of the business, such as
strip clubs or adult theaters. The degree and extent of adverse secondary impacts,
therefore, vary between those sexually oriented businesses which are accessory and
those which are principal. Consequently, each type typically deserves separate,
individual recognition as well as regulation.
A final consideration of sexually oriented use control is the maintenance of objectivity in
the application of regulations. This concern relates to avoiding regulation of content and
focusing on adverse secondary impacts. In order to avoid legal questions on decisions
which are made, to the extent possible, within the bounds of pre -established, objective
criteria, sexually oriented uses should be allowed as permitted activities. This type of
approach eliminates challenge of emotional, politically motivated, subjective
determinations which may surface if special zoning processing and approval procedures
(i.e., conditional use permits) are required. To the extent possible, individual case
determinations need to be limited and left to an administrative rather than legislative
level of involvement.
The City of Otsego has already established that principal adult uses are permitted in the
B-3 District and accessory adult uses are permitted in the B-1, B-2 and B-3 Districts.
Further, principal adult uses are prohibited within 600 feet of zoning districts and uses
that are determined to be "sensitive" — primarily areas where children congregate,
where people live and where alcohol is sold and consumed.
Sexually Oriented Use Area Analysis. Based upon the established legal precedent
that a community must provide an opportunity for sexually oriented uses to locate and
function, a critical step in the formulation of regulations is to determine the appropriate
setting for such activities. As adult uses may be generally categorized as business
retail or service operations, it is logical to conclude that they commercial zoning districts
91
of the City are the areas most appropriate for location of such uses. It should be noted,
however, that a number of other cities have located or have permitted adult use
establishments to be located within commercial, light industrial or general industrial
zoning district. This is particularly the case if adequate opportunity areas for adult uses
are not available in strictly commercial zoning districts.
One of the guidelines for establishing sexually oriented use separation distances is the
U.S. Supreme Court case involving Renton, Washington. In summary, a five (5)
percent geographic area of the City of Renton was found to be an acceptable threshold
for providing a "limited sexually oriented use area". However, there are other Minnesota
court cases which have upheld stricter limits on adult uses, limiting them to between five
and fifteen percent of commercially zoned areas.
In 1997, the case of the City of Crystal v. Fantasy House Inc. determined that 0.9% of
the total land area in the City and 15% of the City's industrial and commercial zones are
an appropriate limited sexually oriented use area. Another case in 1991 involving the
City of Minneapolis ruled that 6.6% of the total acreage of commercial land is an
acceptable limited adult use area. The conclusion drawn from these cases as well as
the Supreme Court decision involving Playtime Theaters v. City of Renton, Washington
(which suggested a minimum opportunity area of five percent of a City's total area) is
that a City must provide a reasonable opportunity for an adult use business to locate
within a City given the context of that City's commercial development pattern, location of
land uses sensitive to the potential secondary negative effects found to be caused by
adult uses in consideration of protecting public health, safety and welfare in regards to
those potential secondary negative effects. In order to determine the available
opportunity area for adult uses in Otsego, an inventory of the current acreage of
commercially zoned property has been made as shown below:
City of Otsego
Commercially Zoned Acres
PUD/
Total Limited
B-3 District
Sexually
uses
Oriented Use
Cit Area B-1 District B-2 District
B-3 District
Area
Acres
% Acres
I % Acres
I %
Acres
I %
Acres
%
Acres
%
18,880
1 100% 0
0% 0
0%
118
1 0.6%
252
1 1.3%
370
1.9%
The City of Otsego is 18,880 acres in area. There are currently 370 acres of
commercially zoned property in the City divided between B-3 District and PUD Districts
based on B-3 District standards that would allow for an adult use establishment.
Section 20-31-3.A of the Otsego Zoning Ordinance prohibits any adult use to be
located within 600 feet of a residentially -zoned property, a church, a public or private
school, a public library, a public park, an establishment that sells liquor, or a licensed
day care center. Applying a 600 -foot buffer around all such uses in the City results in a
remaining opportunity area for sexually oriented uses of 181 acres, or 0.9 percent of the
City's total area, as shown below.
5
City of Otsego
Adult Use Opportunity Area
Existing 600 Foot Separation Distance
Buffer
City Area
Total Limited
OpportunityArea
Sexually
PUD-
Oriented Use
Cit Area B-1 District B-2 District B-3 District Commercial
Area
Acres
% Acres
% Acres
% Acres
% Acres
—9/6—Acres
18,880 Acres
%
18,880
100% 0
0% 0
0% 25
0.1% 1 156
1 0.8% 1
181
0.9%
As shown in the above analysis, the existing commercial zoning districts do not provide
sufficient area for sexually oriented uses pursuant to the guidelines of the Renton,
Washington U.S. Supreme Court case. However, Otsego is a vastly different
community than Renton, primarily in that it is a developing community and a
predominately residential, suburban community. The 181 acres of land currently
commercially zoned that would allow for an adult use business is 48.9 percent of all of
the commercially zoned property within the City. This opportunity area is well in excess
of the precedents established in the Crystal and Minneapolis decisions.
The following table shows how the potential adult use opportunity areas would be
affected if the required minimum separation distance is increased between a potential
adult use location and established sensitive uses. The intent of increasing the required
minimum separation distance would be to maximize protection of public heath, safety
and welfare from potential secondary negative effects found to be caused by adult uses
while allowing for a reasonable opportunity area within the context of the City's current
development pattern.
As shown in the above table, the City of Otsego could potentially increase the separate
distance between adult uses and sensitive areas from 600 feet to 1,650 feet and still
allow for an adequate adult use opportunity area as established by the City of Crystal
and the City of Minneapolis cases. If the separation distance was increased to 1,650
feet, the City of Otsego would allow for 28 acres of commercially zoned area to be
available for location of an adult use. This opportunity area represents 7.6% percent of
on
City of Otsego
Adult Use Opportunity Area
Separation Distance Analysis
Buffer
City Area
Area Zoned
B-3 & PUD/B-3
OpportunityArea
% of
Total
Acres Area
% of Zoned
Commercial
Area
800 feet
18,880 Acres
370 Acres
138 Acres
0.7%
37.3%
1,000 feet
18,880 Acres
370 Acres
98 Acres
0.5%
26.4%
1,200 feet
18,880 Acres
370 Acres
70 Acres
0.3%
19.4%
1,500 feet
18,880 Acres
370 Acres
41 Acres
0.2%
11.1%
1,600 feet
18,880 Acres
370 Acres
32 Acres
0.1%
8.6%
1,650 feet
18,880 Acres
370 Acres
28 Acres
0.1%
7.6%
1,700 feet
18,880 Acres
370 Acres
23 Acres
0.1%
6.2%
As shown in the above table, the City of Otsego could potentially increase the separate
distance between adult uses and sensitive areas from 600 feet to 1,650 feet and still
allow for an adequate adult use opportunity area as established by the City of Crystal
and the City of Minneapolis cases. If the separation distance was increased to 1,650
feet, the City of Otsego would allow for 28 acres of commercially zoned area to be
available for location of an adult use. This opportunity area represents 7.6% percent of
on
the total area in the City zoned for commercial uses. This opportunity area would be
less than the 15 percent threshold established by the City of Crystal case, but larger
than the 6.6 percent threshold established by the City of Minneapolis case. Exhibit G of
this report presents a draft ordinance amendment increasing the separation distance
from 600 feet to 1,650 feet. It is staff's recommendation that the Planning Commission
and City Council consider increasing this separation distance to 1,650 feet.
Business License Code. Another mechanism besides zoning available to the City to
assist in ensuring that adult uses are properly operated is business licensing. Currently,
the City requires business licenses for arcades, pool halls, bowling alleys, liquor stores
and bars and any other establishment serving liquor. The primary reasons for
establishing a business licensing code specific to adult uses is to restrict access to
minors, place limitations and regulations on the business operation and to prevent
criminal activity. A proposed business license code for adult uses has been drafted as
an amendment to Section 7, Business and Licenses of the City Code. This proposed
ordinance is attached as Exhibit H.
The proposed adult business licensing code provides definitions of various types of
adult use businesses that would be subject to licensing by the City. Prior to
establishment of an adult use in the City, the business owner must obtain a license from
the City by filling out an application form and paying the fee as established by
Ordinance. The applicant must submit a diagram/site plan of the proposed business
and the business must be inspected by the Building Official prior to issuance of the
license. Each adult use business license would be valid for one year and each
business owner would be required to renew the license 90 days prior to its expiration.
The proposed ordinance also allows for suspension and revocation of adult use
business licenses if a violation occurs via written notification from the City with the
opportunity for an appeal hearing.
CONCLUSION
The City of Otsego already has in place appropriate regulations for the location and
operation of adult use businesses. As shown in the preceding analysis, the City also
has a reasonable amount of commercially zoned and commercially guided property for
the accommodation of an adult use business. As established by previous court cases in
the State involving cities and adult use businesses, the total adult use opportunity area
in a city can be limited to a small percentage of the zoning districts that allow adult
businesses as a permitted use based on the characteristics specific to that City.
As such, the City may want to consider increasing the separation distance between
adult use businesses and sensitive uses to 1,650 feet to ensure protection of public
heath, safety and welfare while simultaneously protecting the adult use's Constitutional
rights. In addition, City staff recommends that the City Council adopt an Adult Use
Businesses Licensing Code to further regulate the operation of adult use businesses for
the general safety and welfare of the community.
The Planning Commission will hold a public hearing on June 18, 2007 to consider an
amendment of the Zoning Ordinance regarding the proposed increase in the separation
distance required for adult uses. Following the public hearing, it is recommended that
the Planning Commission make recommendations to the City Council on the potential
negative impacts of adult use businesses, approval of the proposed increase in the
separation distance for adult uses and approval of the proposed ordinance regulating
business licensing of adult uses.
C. Mike Robertson
Judy Hudson
Andy MacArthur
Ron Wagner
t
ADULT USE FWPACT9,
ANNOTATED BIBLIOGRAPHY
SELECTED REFERENCES
SUGGESTING NEGLIGIBLE CONSEQUENCES
.I 1 JANUARY 1994
Canada Special Committee on. Pornography and Prostitution.
Pornography and Prostitution in Canada. "Report of the Special
Committee on Pornography and Prostitution." Ottawa, Canada:
Minister of Supply and Services Canada, 1985.
Reference Number: LAW KE9070 .A72 P676 1985
Based upon the research and testimony available to the
Committee, it concluded .that it was "not prepared to state
that pornography is a significant causal factor in the
commission of some forms of violent crime, in the sexual abuse
of children or the disintegration of communities and society"
(99). This position arose because of fundamental differences
in the definition of pornography among studies and also a lack
of consistent results among studies.
Kutschinsky, Berl. "Studies on Pornography and Sex Crimes in
Denmark. 11 A report to the u.S. Presidential Commission on
Obscenity and Pornography. November, 1970
Reference Number: LAW, HW 460 .K88
This book contains two experiments which seek to demonstrate
the effects of pornography on society in Denmark after
restrictions on pornography were repealed. .
The first experiment involved 43 men and 29 women, mainly
students, between the ages of 22 to 34 years old. The
subjects were exposed to pornography in the form of a fifteen
minute film, five photographic magazines, an erotic text read
aloud and then another fifteen minute film. After the last
film, the subjects filled out a post -exposure test. The
overall findings of the experiment was that the subjects
demonstrated on significant change in emotional attitude or
sexual behavior.
The second experiment sought to explain the decrease in
reported sex crimes in Denmark since the liberalization of
pornography. The experiment consisted of a random survey of
people (105 men, 113 women), where they were asked several
questions related to sex crimes and their possible experiences
in three categories: "peeping", exhibitionism, and indecency
EXHIBIT A
towards girls. The study concludes the availability of hard
core pornography was most likely the direct cause of the
decrease in sexual crimes committed in Denmark. -
Goldstein, Michael J. and Harold Sanford Rant. "Pornography and
Sexual Deviance: A Report of the Legal and Behavioral Institute."
Berkeley: University of California Press, 1973.
Reference Number: St. Paul Central, 176.8 G578
This research explores the relationship between exposure to
pornography and normal or abnormal development of sexual
activity among sexual criminals. The research consisted of
interviews taken from 20 sex- offenders, 37 homosexuals, 13
transsexuals, 78 admitted porn -users and a community control
group. Results indicate that sex offenders had been exposed
to less pornography than the control group. Degree of
exposure to pornography is seen as irrelevant to sexual
development.
McConahay, John B. "Pornography and Public Opinion: How Many and
Who Would Ban What?" Institute of Policy Sciences and Public
Affairs, Duke University, 1988. 71 pp.
Reference Number: WILSON, Quarto HQ471 .m43x 1988
The study is a review of national and local opinion polls
regarding pornography. The poll data was subjected to factor
and multiple regression analyses. The study found that public
opinion of pornography has remained stable for the last 23
years, while the majority of Americans expressing ambivalence
about the topic. The majority group sought controls only on
some forms of violent material, while preferring the status
quo on non-violent material. The factors that contributed to
a particular position on pornography were found to be
religious beliefs and practices, age, daily structure and
education. Income, .occupation, race and political
identification were found not statistically significant.
U.S. Commission on Obscenity and Pornography. "The Report of the
Commission on Obscenity and Pornography". New York: Bantam 1970
Reference Number: WILSON, 304 UN3-3
The Commission on Obscenity and Pornography was assembled in
1967 and charged with the task of evaluating the effects of
pornography on American society by reviewing current research
and hearing testimony. Results found that surveys of
psychiatrists, psychologists, and sociologists and similar
2
professional workers revealed that large majorities of these
groups felt that sexually explicit materials do not have
harmful effects on adults or adolescents. Empirical evidence
researched by the Commission found that in general,
established patterns of sexual behavior were not altered
substantially by exposure to pornography. The report cites
studies by Kystschinsky as evidence that pornography has not
effect on deviant behavior and Goldenstein that criminals
often have had less exposure to pornography than other adults.
Byerly, Greg and Rick Rubin. ."Pornography: The Conflict Over
Sexually Explicit Materials in the United States. An Annotated
Bibliography". New York. Garland Publishing, 1980
Reference Number: WILSON, HQ471 .B93x 1980
This book is comprised of annotated bibliographies of research
books and articles related to the effects of pornography. The
remaining items of this report were retrieved from this book.
Baron, Robert A. "The Aggression -Inhibiting Influence of
Heightened Sexual Arousal". Journal of Personality and Social
Psychology 30 (September 1974): 318-322.
Male subjects were first angered before being exposed to
erotic or neutral stimuli. When the subjects were allowed to
aggress against a confederate, those exposed to erotica
demonstrated reduced aggression.
Baron, Robert A. and Paul A. Bell. "Sexual Arousal and Aggression
by Males: Effects of Type of Erotic Stimuli and Prior
Provocation". Journal of Personality and Social Psychology 35
(February 1977). 79-87.
Subjects were angered before being exposed. to erotic or
neutral stimuli of various types. Results show that subjects
exposed to the most erotic material were less aggressive when
allowed to aggress against a confederate.
Cook, Royer F., Robert H. Fosen, and Asher Pacht. "Pornography and
the Sex Offender: Patterns of Previous Exposure and Arousal
Effects of Pornographic Stimuli,,. Journal of Applied Psychology 55
(December 1971): 503-511.
Sixty-three sex offenders and 66 criminal code violators were
studied regarding exposure to pornography during childhood.
Study found that sex offenders were less likely to have been
exposed during childhood," than criminal code violators.
3
Howard, James L., Myron B,. Liptzen, and Clifford B. Reifler. "Is
Pornography a Problem?" Journal of Social Issues 29 (1973).
For two weeks, 23 subjects were exposed to pornographic
materials for 90 minutes everyday. Results showed that
continued exposure to pornography leads to a decrease in
interests and that continued exposure leads to decreased
arousal value of later exposure. Also, this study observed no
negative change in the subjects' behavior or attitude.
Moos, Rudolf H. "The Effects of Pornography: A Review of the
Findings of the Obscenity and Pornography Commission". Comments on
Contemporary Psychiatry 1 (1972): -123-131.
A review of the 1970 findings of the Commission on Obscenity
and Pornography concerning responses to erotic material.
Finds that majority of individuals are aroused by erotic
material, but sexual behavior is not affected.
Reilfer, Clifford B., James Howard, Morris A. Lipton, Myron B.
Liptzin, and Donald E. Widmann. "Pornography: An Experimental
Study of Effects". American Journal of Psychiatry 128 (November
1971): 575-582.
Twenty-three subjects were exposed to a wide variety of
pornographic material every day for 90 minutes over a three
week period. A before and after study was conducted on
subjects viewing hard core stag films. Another study was
conducted on a day-to-day basis over the three week period.
Results demonstrated that subject became satiated with
pornography and that the exposure had no long term effect on
attitude or behavior.
Whemer, Gerald, and Douglas H. Wallace. "Pornography and Attitude
Change." Proceedings of the Annual Convention of the American
Psychological Association 5 (1970): 405-406..
Forty male under -graduate students were exposed to a set of
pornographic material and then rated them. Approximately one
third of the material was legally obscene. Results indicated
that voluntary exposure to pornographic material does not
change an individual's attitude toward the material or cause
a significant change in moral values.
4
ADULT USE STUDIES
SELECTED REFERENCES
COMITY IMPACT EVALUATIONS
Adult Entertainment Businesses in Indianapolis, An Analysis,
February 1984
Adult Entertainment, 40 Acre Study, St. Paul Division of Planning,
1987
Adult Entertainment, Supplement Study, St. Paul Division of
Planning, 1988
ASPO Planning Advisory Service Report #327: Regulating Sex
Businesses by William Toner, May 1977
City of Coon Rapids, Minnesota City Code -Licenses
City of Minneapolis, Minnesota City Code
City of Ramsey, Adult Uses, Planning Report, 20 September 1990,
Northwest Associated Consultants, Inc.
City of Renton, et al, Appellant V. Playtime Theatre, Inc., et al,
[475 US 411 [No. 84-13601
Director's Report, Adult Entertainment, Department of Construction
and Land Use, City of Seattle, Washington, August 1989
Relation of Criminal Activity and Adult Businesses; Prepared by the
City of Phoenix Planning Department, May 1979
Report of the Attorney General's Working Group on the Regulation of
Sexually Oriented Businesses, June 6, 1989
Rochester/Olmsted, Minnesota Planning Department, Adult
Entertainment.Research Report, March 2, 1988
Surveys of X -Rated Pornographic Activity in Dakota County 1986-
1989, May 20, 1989
The Helone Company et al V. The City of Helena, Montana et al
[CV82-201-H]
Time, Place, and Manner. Regulation of Business Activity, Southwest
Legal Press, Inc., 1990
EXHIBIT B
M
White, Leonard. "Erotica and Aggression: The Influence of Sexual
Arousal, Positive Effect, and Negative Effect on Aggressive
Behavior". Journal of Personality and Social Psychology 37 (April
1979): 591-601.
Subjects were angered, then exposed to positive and negative
pornographic materials. Subjects were then allowed to aggress
against a confederate by administering electric shocks.
Results show that exposure to negative stimuli results in
decreased aggression.
Prepared by D. Daniel Licht
Library Facilities: University of Minnesota Law Library;
St. Paul Campus Central Library;
Wilson Library
5
S
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
EXHIBIT C
MEMBERS OF THE
ATTORNEY GENERAL'S WORKING GROUP
ON THE REGULATION OF SEXUALLY ORIENTED BUSINESSES
Ann Burkhart
Associate Professor
University of Minnesota
Law School
Minneapolis, Minnesota
Honorable Kathleen A_. Blatz
Minnesota House of Representatives
IR/Bloomington, Minnesota
Honorable Terry M. Dempsey
Minnesota House of Representatives
IR/Neer Ulm, Minnesota
Thomas L Fabel
Lindquist & Vennum
Minneapolis, Minnesota
John Laux
Minneapolis Chief of Police
Minneapolis, Minnesota
Sharon Sayles -Belton
Councilwoman
Minneapolis, Minnesota
Honorable Kathleen Vellenga
Minnesota House of Representatives
DFL -/St. Paul, Minnesota
William V�rj/son
Councilman
St. Paul, Minnesota
t
13
TABLE OF CONTENTS
INTRODUCTION.....................................................................................................
3
SUMMARY..............................................................................................................
IMPACTS OF SEXUALLY ORIENTED BUSINESSES .........................................
MinneapolisStudy..................................................................................................
St. Paul....................................................................................................................
Indianapolis.........................................................................................................
Phoenix....................................................................................................................
LosAngeles............................................................................................................
Concentration of Sexually Oriented Businesses Neighborhood Case Study ..
Testimony.......................:.......................................................................................
SEXUALLY ORIENTED BUSINESSES AND ORGANIZED CRIME ....................
PROSECUTORIAL AND REGULATORY A4T'ERNATIVES..................................
OBSCENITY PROSECUTION........,..........................
.............................................
RECOMMENDATIONS...........................................................................................
OTHER LEGAL REMEDIES...................................................................................
RICO/FORFEITURE..................................::...........................................................
RECOMMENDATIONS..........................................................................................
NUISANCEINJUNCTIONS...................................................................................
RECOMMENDATIONS..........................................................................................
ZONING............................................................................................:.....................
SupremeCourt Decisions.....................................................................................
1
3
6
6
'7
8
9
10
10
12
14
20
21
24
25
25
28
28
30
30
31
Standards and Need for Legal Zoning.......................................................:......... 35
Documentation to Support Zoning Ordinances .................................................. 36
Availability of Locations for Sexually Oriented Businesses ................................ 37
DistanceRequirements......................................................................................... 39
Requiring Existing Businesses to Comply with New Zoning ............................. 40
RECOMMENDATIONS....................:..................................................................... 41
LICENSING AND'OTHER REGULATIONS.......................................................... 41
RECOMMENDATIONS.......................................................................................... 44
CONCLUSION........................................................................................................ 45
INTRODUCTION
Many communities in Minnesota have raised concerns about the impact of
sexually oriented businesses on their quality of life. It has been suggested that sexually
oriented 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 beer. suggested that spillover effects of the
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.
Although many communities have sought to regulate sexually oriented businesses,
these efforts have often been controversial and equally often unsuccessful. Much
community sentiment against sexually oriented businesses is an outsrowth 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 pornographic materials which-2re determined to be "obscene" have no
constitutional protection. As explained 12ter in more detail, only that pornography
which, 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 "lacks serious literary, artistic, political
or scientific 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 pornography and
sexually oriented businesses.
-1-
On June 21, 1988, Attorney General Hubert Humphrey III announced the formation
of a Working Group on the Regulation of Sexually Oriented Businesses to assist public
officials and private citizens in finding legal ways to reduce the impacts of sexually
oriented businesses. Members of the Working Group were selected for their special
expertise in the areas of zoning and law enforcement and included bipartisan
representatives of the state Legislature as well as members of both the Minneapolis
and St. Paul city councils who have played critical roles in developing city ordinances
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. Extensive research was conducted to review
regulation and prosecution strategies used in other states and to analyze the legal
ramifications of these strategies.
As testimony was presented, the Working Group reached a consensus that a
comprehensive approach is required to reduce or eliminate the impacts of sexually
oriented businesses. Zoning and licensing regulations are needed to protect residents
from the intrusion of "combat zone" sexual crime and harassment into their
neighborhoods. Prosecution of obscenity hes played an important role in each of the
cities which have significantly reduced or eliminated pornography. The additional
threat posed by the involvement of organized crime, if proven to exist, may justify the
resources 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 eliminate 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 affront 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 neighborhoods and draw involvement of
organized crime.
-2-
' Communities are not powerless to combat these problems. But to be most
effective in defending itself from pornography each community must work from the
evidence and within the law. 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 discusses evidence that sexually oriented
businesses, and the materials from which they profit, have an adverse impact on the
surro6nding communities. It provides relevant evidence which local communities can
use as part of their justification for reasonable regulatiori of sexually oriented
businesses.
The Working Group also discussed the relationship. between sexually oriented
businesses and organized crime. Concerns about these broader effects of sexually
oriented businesses underlie the Working Group's recommendations 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 struggling against the -blight of
pornography. When citizens, police officers and city officials are concerned about
crime and the deterioration of neighborhoods, each of us lives next door. No
community stands alone.
CtIMM�RY
The Attorney General's Working Group on the Regulation of Sexually Oriented
Businesses makes the following recommendations to assist communities in protecting
themselves from the adverse effects of sexually oriented businesses. Some or all, of
-3-
these recommendations may be needed in any given community. Each community
must decide for itself the nature of the problems it faces and the proposed solutions
which would be most fitting.
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 training.
2. The Legislature should consider funding a pilot program to
demonstrate the efficacy of' obscenity prosecution and should,
encourage the pooling of resources bettiveen 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
city and county attorneys who prosecute obscenity crimes.
4. Obscenity prosecutions should begin with cases involving those
materials which most flagrantly offend community standards.
5. The Legislature should -smend the present forfeiture statute to
Include as grounds for forfeiture all felonies and gross misdemeanors
pertaining to solicitation, inducerT ent, promotion or receiving profit from
prostitution and operation of a "disorderly house." -
6. The Legislature should consider the potential for a RICO -like
statute with an obscenity predicate.
7. Prosecutors should use the public nuisance statute to enjoin
operations of sexually oriented businesses which repeatedly violate
laws pertaining to prostitution, gambling or operating a disorderly
house.
-4-
8. 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.
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
reasonable time so that prior uses will conform to new laws.
12. Prior to enacting licens-Mg 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.
-5-
14. Communities should adopt regulations which reduce exposure of '
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.
IMPACTS OF SEXUALLY ORIENTED BUSINESSES
The Working Group reviewed evidence -from studies conducted 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
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 adjacent to residential property.
Minneapolis -Study
In 1980, on direction from the Minneapolis City Council, the Minneapolis Crime
Prevention Center examined the et'f,�,cts of sex -oriented and alcohol -oriented adult
entertainment upon property values and crime rates. This study used both simple
regression and multiple regression statistical analysis to evaluate whether there was a
causal relationship betvreen these businesses and neighborhood blight.
The study concluded that there was a close association between sexually oriented
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
Minneapolis study concluded that sexually oriented businesses concentrate in areas
which are relatively deteriorated and, at most, they may weakly contribute to the
continued depression of properly values.
M
' However, the Minneapolis study found 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:
1. The effects of sexually oriented businesses on the crime rate index is
positive and significant regardless of which control variable is used.
2. Sexually oriented businesses continue to be .associated with higher
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 rate index in that area by 9.15 crimes per thousand people per year
even if all other social factors remain unchanged.
St. "aul
In 1978, the St. Paul Division of Planning and the Minnesota Crime Control
Planning board conducted a study -pf the relationship between sex -oriented 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 -oriented
businesses, so its conclusions are only suggestive of the effects of sexually oriented
businesses alone. Nevertheless, the study 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 locate 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 crime rate associated with two such
businesses in an area than is associated with only one adult business.
5. Housing values are also significantly lower in an area where there are,
three adult businesses than they are in an area with only one such business.
Similar conclusions about the adverse impact of sexually oriented businesses on
the community were reached in studies conducted in cities across the nation.
Indianapolis
In 1983, the City of 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 Institute of Real Estate
Appraisers.
The Study found the following:
1. The appraisers overwhelmingly (80%) felt that an adult bookstore
located in a neighborhood would have a negative impact on residential
property.values within one block of the site.
2. The real estate experts also overwhelmingly (71%) believed that there
would be a detrimental effect on commercial property values within the same
one block radius.
0
3. This negative impact dissipates as the distance from the site increases,
to that most appraisers believed that by three blocks away from an adult
bookstore, its impact on property values would be minimal.
Indianapolis also studied the relationship between crime rates and sexually
oriented bookstores, cabarets, theaters, arcades and massage parlors. A 1984 study
entitled "Adult Entertainment Businesses in Indianapolis" found that areas with sexually
oriented businesses had higher crime rates than similar areas with no sexually oriented
businesses.
1. Major crimes, such as criminal homicide, rape, robbery, assault,
burglary, and larceny, occurred -at a rate that was 23 percent higher in those
areas which had sexually oriented businesses.
2. The sex-related crime rate, including rape, indecent exposure, and child
molestation, was found to be 77 percent higher in those areas with sexually
oriented businesses.
Phoenix
The Planning Department of Phoenix, Arizona published a study in 1979 entitled
"Relation of Criminal Activity and Adult Businesses." This study showed that arrest's for
sexual crimes and the location of sexually oriented businesses were directly related.
The study compared three areas with. -sexually oriented businesses with three control
areas which had similar demographic and land use characteristics, 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 higher in those areas with sexually
oriented businesses.
N
3. 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
having no sexually oriented businesses. -
Los Angeles
A study released by the Los Angeles Police Department in 1984 supports a.
relationship between sexually oriented businesses and rising crime rates. This study is
less definitive, since it was not designed to use similar areas 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 (i.e., homicide, rape, aggravated assault,
robbery, burglary, larceny and vehicle theft) increased 7.6 percent in the Hollywood
area while the rest of Los Angeles had a 4.2 percent increase. "Part ll" arrests (i.e.
forgery, prostitution, narcotics, liquor law violations, and gambling) increased 3.4
percent in the rest of Los Angeles, but 45.4 percent in the Hollywood area.
Concentration of Sexually Oriented Businesses
Neighborhood Case Study
In St. Paul, there is one neighborhood which has an especially heavy concentration
-of sexually oriented businesses. The blocks adjacent to the intersection of University
Avenue and Dale Street have more than 20 percent of the city's adult uses (4 out of 19),
including all of St. Paul's sexually oriented bookstores and movie theaters.
The neighborhood, as a whole, shows signs of significant distress, including the
highest unemployment rates in the city, the highest percentage of families below the
poverty line in the city, the lowest median family income and the lowest percentage of
high school and college graduates. (See 40 -Acre Study on Adult Entertainment, St.
Paul Department of Planning and Economic Development, Division of Planning, 1987 at
p. 19.) It would be difficult to attribute these problems in any simple way to sexually
oriented businesses.
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However, it is likely that there is a relationship between the concentration of
sexually. oriented businesses and neighborhood crime rates. The St. Paul Police
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 prostitution
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 would not feel safe
conducting your banking busine$s?"
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 corner where the sexuai4y oriented businesses are concentrated.
The Working Group reviewed `.tie 1987 40 -Acre Study on Adult Entertainment
prepared by the Division of Planning in St. Paul'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 neighborhood. 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 form of discarded pornographic
literature allegedly found in the streets, sidewalks, bushes and alleys near
adult businesses. Such literature is sexually very explicit, even on the cover,
-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 left in adjacent lots. One person reported
to the police that he had found 50 pieces of pornographic material in a church parking
lot near a sexually oriented business. Neighbors report finding used condoms on their
lawns and sidewalks and that sex acts with prostitutes occur on streets and alleys in
plain view of families and children. The Working Group heard testimony that arrest
rates understate the level of crime associated with sexually oriented businesses. Many
robberies and thefts from "johns" and many assaults upon prostitutes are never
reported to the police.
Prostitution also results in harassment of neighborhood residents. Young girls on
their way to school or young women on their way to work are often propositioned by
johns. The Flick theater caters to homos6xual trade, and male prostitution has been
noted in the area. Neighborhood .boys and men are 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 solicited on their
way to school and to work. _
The Working Group heard testimony that in the Frogtown neighborhood,
immediately north of the University -Dale 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
-12-
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 bookstores 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 "concentration" problem. In Rochester, there are two facilities in a shopping mall
and a single bookstore in a depressed commercial/business 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 local
property values.
- Information presented.to the Working Group indicates that community impacts^of
sexually oriented businesses are primarily a function of two variables, proximii ( 1.0
residential areas and concentration. Property values are directly affected within a small
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 desitebility 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.. uiainity of sexually
oriehted businesses also compounds imoacts upon the neighborhood.
-13-
The Attorney General's Working Group believes that regulatory strategies designed
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.
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 many sexually oriented businesses have
out-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 that an organized crime 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 materials are also likely to be involved with organized
crime.
The Working Group conducted additional research to assess the relationship
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 activities, such as
prostitution or narcotics, can be explained as the income of peep booths. Cash
income can also escape taxation, in violation of law.
-14-
Although it is clear that organized crime is involved to some degree in the
pornography industry, various sources reach 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 term 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 crime 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 concerned about -the relation between sexually oriented businesses
and any "organized criminal conspiracy of two or more persons that is continuous in
nature, involves activity generally crossing jurisdictional lines 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 perjuryl/ and of
Hang V. Mohney in Michigan for tax evasign suggest a possible connection between
organized crime and a Minnesota pornography business.: Hafiz, a .Minnesota resident
who is an agent of Beverly Theate;r..Inc., the company which operated the Faust
Theater in St. Paul,2/ 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. See United States v. Hafiz, Indictment, No.
IP 88 -102 -CR (S.D. Ind., Sept. 15, 1988); United States v. Mohney, Indictment, No.
88-50062 (E.D. Mich. Sept. 9, 1988)).
1/ Hafiz was acquitted of the perjury charges. St. Paul Pioneer Press, Jan. 11, 1989, P.
10A.
2/ The City of St. Paul bought out the Faust for $1.8 million, closing the entertainment
complex on March 7, 1989.
-15-
Mohney, in turn, has been linked with national organized crime enterprises. A 1977
report of the United States Justice Department 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 close
association with the LCN. Columbo and the LCN DeCavalcante, both of
which are very influential in pornography in the eastern United States. In
Michigan, Mohney is known to hire individuals with organized crime
associations to manage his businesses. His businesses and corporations
consist of 60 known adult bookstores, massage parlors, art theaters, adult
drive-in movies, go-go type lounges and pornographic warehouses in
Michigan, Indiana, Illinois, Kentucky, Tennessee, Wisconsin, Iowa, Ohio and
California. He is involved in the financing and production of pornographic
movies, magazines, books and newspapers. He also directs the importation
and distribution of his own and other pornographic publications to retail and
wholesale outlets throughout the United States and Canada ...• He. has a
working relationship with DeCavalcante's .representative Robert DiBernardo
and has met with Vito Giacalone and Joseph Zerilli of the LCN Detroit. He
has to cater to both to operate in Michigan.
U.S. Justice Dep't, Oroanized Crime Involvement in Pornography, reprinted in the
Attorney General's Comm'n on Pornography (hereinafter "Pornography Commission"),
2 Final Report at 1229-30 (1986).
Organized crime has the potential to infiltrate Minnesota's pornography industry.
Evidence on a national level highlights the vulnerability of sexually oriented businesses
to criminal control. 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 United States during the years 1977 and 1978." 2 Final Report at 1044-45. The
Washington, D.C., study "further concluded that 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 intensive
-16-
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 multi-million dollar
pornography business in the* United States by a few individuals with direct
connections with what is commonly known as the organized crime
establishment in the United States, specifically, La Cosa Nostra . . .
Information received from sources of this bureau indicates that pornography
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 1046 (quoting Federal Bureau of Investigation Report Regarding the Extent of
Organized Crime Development in Pornography, 6 (1978)).
A brief survey of 59 FBI field offices conducted in 1985 found that about
three-quarters of those offices could. not verify that traditional organized crime families
were involved in the manufacture or 7oistribution of pornography. Several offices did,
however, report some involvement by members and associates of organized crime. Id.
at 1046-47.
Stanley Ronquest, Jr., a supervisory FBI special agent for traditional organized
crime at FBI headquarters in Washington, D.C., was interviewed by Attorney General
staff. Ronquest stated that LCN has not been directly involved in the pornography
industry in the last ten years. However, a former FBI agent told the Pornography
Commission:
In my opinion, based upon twenty-three years of experience in pornography
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 mafia or some other facet of non-
mafia 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 state, 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 smutep ddlers." Id. at 1048 (emphasis in original).
The Pornography 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 Fratianno, described by the
Commission as a member of LCN, "that large profits have kept organized crime heavily
involved in the obscenity industry." id. at 1052. Fratianno testified that "95% of the
families 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 obscenity
industry. Though a number of significant producers and distributors are not members
of LCN families, all major producers and distributors of obscene material are highly
organized and carry out illegal activities with a great deal of sophistication." Id. at.1053.
The Pornography Commission reported that Michael George Thevis, 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 including
murder, arson and extortion. The Commission also reported examples of other crimes
associated with the pornography industry, including prostitution and other sexual
abuse, narcotics distribution, money laundering and tax violations, 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 links between
pornography and organized crime See Scott, Book Reviews, 78 J. Crim. L. &
Criminology 1145, 1158-59 (1988)), its conclusions find additional support in recent
state studies.
The California Department of Justice recently reported that:
California's primacy in the adult videotape industry is of law enforcement
concern 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 the
smooth flow of easy money for some of its major operations ....
As long as control over pornography distribution is contested, and organized
crime figures continue their involvementi'in the business, the pornography
industry will remain of interest to law enforcement officials statewide.
Bureau of Organized Crime and Criminal Intelligence, Department of Justice, State of
California, Oroanized Crime in California 1987: Annual Report to the California
Legislature at 59-62 (1988).
The Pennsylvania Crime Commission similarly determined in a 1980 report that
most pornography stores examined were affiliated or owned by one of three men who
had ties with "nationally known pornography figures who are members or associated of
organized crime families•." Pennsylvania Crime Commission, A Decade of Organized
Crime: 1980 Report at 119.
For example, Reuben Sturman, a leading pornography industry figure based in
Cleveland, was reported by the FBI in 1978 to have built his empire with the assistance
of LCN member DiBernardo. Federal Bureau of Investigation Report Regarding the
-19-
Extent of Organized Crime Involvement in Pornography (1978). Sturman, who
reportedly controls half of the $8 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 8, 1988, p. 3.
Evidence of the vulnerability of sexually oriented businesses to organized crime
involvement underscores the importance of criminal prosecution of these businesses
when they engage in illegal activities, 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 illegal activities related
to sexually oriented businesses 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, like other businesses dealing
in activity with an expressive component, is circumscribed by the First Amendment of
the United States Constitution.3/ Nonetheless, the First 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
3/ The First Amendment provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; 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 constitutional guarantee of freedom of speech, often the basis for challenges to
regulation of sexually oriented businesses, restricts state as well as federal actions.
See, etc .., Fiske v. Kansas, 274 U.S. 380, 47 S. Ct. 655 (1927).
-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 than they may currently recognize. The purpose of this section
of the Report is to identify and recommend enforcement 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 First 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
in jail and a $3,000 fine for a first offense, and up to two years in jail and a $10,000 fine
for a second or subsequent offense within five years. Minn. Stat. g 617.241, subd. 3
(1988).4/
The Working Group believes that Minnesota's obscenity statutes are adequate to
prosecute and penalize the sale and distribution of .obscene materials. However,
historically, widespread obscenity prosecution has not occurred.
The Working Group believes this i$ 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 historically been considered a victimless crime.
4/ 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. & 617.241, subd. 3 (1986).
Obscenity arrests are so infrequent that incidents involving possible violations of
section 617.241 are not separately compiled by the Minnesota Bureau of Criminal
Comprehension. See Bureau of Criminal Apprehension, 1987 Minnesota Annual
Report on Crime, issinq Children and bureau oI ("riminal,ppre ension Activities.
-21-
Obscenity, however, should no longer be viewed as a victimless crime.5/ There is
mounting evidence that sexually oriented businesses are, as described earlier in this
report, often associated with increases in crime rates and a decline in the quality -of life
of neighborhoods in which they are located. Further, as discussed 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:
(i) that the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the prurient
interest in sex;
(ii) that the work depicts sexual conduct ... in a patently offensive
manner; and
(iii) that the work, taken as a whole, lacks .serious literary, artistic,
political, or scientific value.
Minn. Stat. § 617.241, subd. 1(a)(i-iii)JI988). This statutory standard was drawn to be
consistent with constitutional standards'set forth in Miller, supra.
5/ Two blue ribbon commissions have reached different conclusions regarding .the
harmfulness of sexually explicit material to individuals. *A presidential 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,
"federal, state and local legislation prohibiting the sale, exhibition, or distribution of
sexual materials to consulting adults should be repealed." The Re ort of the
Comm'n on Obscenity and Porno rah at 57-8 (Bantam Paperback e . 1970 .
owever, m 1986, the ttor1 eneral's commission on Pornography concluded
that "sexually violent materials ... bear ... a causal relationship to antisocial acts
of sexual violence . [and that) the evidence supports the conclusion that
substantial exposure to [non-violent) degrading material increases the likelihood for
an individual [to] ... commit an act of sexual violence or sexual coercion." Attorney
General's Comm'n on Pornography, i Final Report at 326, 333 (1986).
-22-
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
attorneys to remove jurors who find pornography 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 director 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 fall into the
"one case syndrome" trap, obtain a representative jury through proper voir
dire, keep the focus of the trial on the unlawful conduct of the defendant, and
obtain legally sound instructions.
- Sears, "How To Lose A Pornography Case," The CDL Reporter (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 of the defense attempts to make a statistical case
that the material is not obscene. Prosgcution 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 beastialitx.
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
-23-
successful programs of obscenity prosecution.6/ The Working_ Group encourages
prosecutors to take advantage of increasing training opportunities and other assistance
for obscenity prosecutions and to reassess the desirability of increased enforcement.
The Working Group is pleased to note that county attorneys and law enforcement
groups in Minnesota have recently held forums 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.7/
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 training.
2. The Legislature should consider funding. a pilot. program to
demonstrate the efficacy of obscenity prosecution and should
encourage the pooling of resources beriveen urban and suburban
prosecuting offices by making such cooperation a condition of receiving
any such grant funds.
6/ Memorandum to Jim Bellus, executive assistant to St. Paul Mayor George Latimer
(prepared by St. Paul Department of Planning and Economic Development) (July 5,
1988); see also Waters, 'The Squeeze on Sleaze, Newsweek, Feb. 1, 1988, at 45
("After more than 10 years of levying heavy fines an ma ing arrests, Atlanta has
won national renown as 'the city that cleaned up pornography.'").
7/ The Address of the National Obscenity Enforcement Unit is U.S. Justice
Department, 10th & Pennsylvania Ave. N.W., Room 2216, Washington, D.C. 20530.
Its telephone number is 202-633-5780. Assistance is also available from Citizens for
Decency through Law, Inc., 2645 E. Camelback Rd., Suite 740, Phoenix, AZ 85016.
It is the publisher of "The Preparation and Trial of an Obscenity Case; A Guide for
the Prosecuting Attorney." Its telephone number is 602-381-1322. The National
Obscenity Law Center, another private organization, is located at 475 - Riverside
Drive, Suite 236, New York, N.Y. 10115. It publishes an Obscenity Law Bulletin and
the "Handbook on the Prosecution of Obscenity Cases. is telep one number is
212-870-3216.
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3. The Attorney General should provide informational resources for
city and county attorneys who prosecute obscenity crimes.
4. Obscenity prosecutions should concentrate on cases that most
flagrantly offend community standards.
II. OTHER LEGAL REMEDIES
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.
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
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 o-Ilenses 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 turn
can expose violators to increased fines and penalties as well as forfeiture of all property
acquired or used in the course of a. RICO violation. These statutes generally enable
prosecutors to obtain either criminal or 'civil forfeiture orders to seize assets and may
also be used to obtain injunctive relief to divest repeat offenders of financial interests in
sexually oriented businesses. See 18 U.S.C. S§ 1961-68 (West Supp. 1986). RICO
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 "pattern" 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 limitations imposed by the First
Amendment must be taken into account.
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` It has been argued that a RICO or forfeiture statute based on obscenity crime
violations threatens. to "chill protected speech" because it would permit prosecutors to
seize non -obscene materials from distributors convicted of violating the ..obscenity
statute. American Civil Liberties Union, Polluting The Censorship Debate: A Summary
And Critique Of The Final Report Of The Attorney General's Commission On
Pornography at 116-117 (1986).
However, a narrow majority of the United States Supreme Court 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. Sappenfield v. Indiana, 57 U.S.L.W.
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 material not
obscene." Id. at 4184. But the Court ruled that, "the mere assertion of some. possible
self- censorship resulting from a statute is not enough to render an anti -obscenity law
unconstitutional 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 oocurred. Fort Wayne Books, Inc. v. Indiana, 57
U.S.L.W. 4180, 4184-4185 (February 21, - 1989). The Court explained there is a
rebuttable presumption that expressive materials are protected by the First
Amendment. That presumption is not rebutted until the claimed justification for seizure
of materials, the elements of a RICO violation, are proved in an adversary proceeding.
Id. at 4185.
The Court did not specifically reach the fundamental 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 (like other property
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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
obscenity laws. _
Id. at 4165. 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. § 609.5312 (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. § 609.322, subd. 1) or between the ages of 16 and 18 to practice prostitution
(Minn. Stat. § 609.322, subd. 2) are included among the offenses which could justify
seizure of property, many crimes involving prostitution are outside the reach of the
present Minnesota forfeiture law.
The following crimes are not included among the crimes which can justify seizure
of property and profits: solicitation, indubement, or promotion of a person between the
ages of 13 and 16 to practice prostitution (Minn. Stat. § 609.322, subd. 1A); solicitation,
inducement or promotion of a person 18 years of age or older to practice prostitution
(Minn. Stat. § 609.322, subd. 3); receiving profit derived from prostitution (Minn. Stat.
§ 609.323); 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. g 609.33).
Although its reach would be much more limited, the legislature 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. Indiana, such forfeiture could not take place, if at all, until it was proved
that the underlying obscenity crimes had been committed.
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There are no comparable constitutional issues raised by enacting or enforcement
of forfeiture statutes based on 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 those 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
prostitution and operation of a "disorderly house."
2. The legislature should consider the potential for a RICO -like
statute with an obscenity predicate.
B. NUISANCE INJUNCTIONS
Minnesota law enforcement atghorities may obtain an injunction and close down
operations when a facility constitutes:a public nuisance. A public nuisance exists when
a business repeatedly violates laws pertaining to prostitution, gambling or keeping .a
"disorderly house." The Minnesota public nuisance law permits a court to .order a
building to be closed for one year. Minn. Stat. §§ 617.80-.87 (1988).
Nuisance injunctions to close 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 occur 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, 10.6 S. Ct. 3172 (1986) (First Amendment does not shield adult bookstore
:
from application of New York State nuisance law designed in part to close 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 current 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 city were to use a nuisance statute as a pretext for closing
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 clearly implicate First Amendment concerns
and require analysis under the appropriate First Amendment standard of
review. Because there is no suggestion in the record oropinion below of
such pretextual use of the New York nuisance provision in this case, I concur
in the Court's opinion and judgment.
Arcara, supra, 478 U.S. at 708, 106 S. Ct. at 3178.
In an earlier case, Vance v. Universal,AmOsement, 445 U.S. 308, 100 S. Ct. 1156
(1980), the Court ruled unconstitutional a Texas public nuisance statute authorizing the
closing of a building for a year if the. building is used "habitual[ly]" for the "commercial
exhibition of obscene material." Id. 8f-310 n.2, 100 S. Ct. at 1158 n.2.
The Court's recent holdings in Sappenfield and Fort Wayne Books, Inc. give no
indication that the Court would now look more favorably upon an injunction to close
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 Wayne Books, Inc. at
4185. The Court assumed that RICO provisions could be upheld on the basis that
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"adding obscenity -law violations to the list of RICO predicate crimes was not a mere
ruse to sidestep the First Amendment." Id. Without the relationship to proceeds of
crime, a remedy which closed a facility for obscenity violations would be far less likely
to withstand constitutional scrutiny.
RECOMMENDATIONS
1. Prosecutors should use the public nuisance statute to enjoin
operations of sexually oriented businesses which repeatedly violate
laws pertaining to prostitution, gambling or operating a disorderly
house.
111: ZONING
Zoning ordinances can be adopted to regulate the location of sexually oriented
businesses without violating the First Amendment. Such ordinances can be designed
to disperse or concentrate sexually oriented businesses, to keep them at designated
distances from specific buildings or areaq, such as churches, schools and residential
neighborhoods or to restrict buildings to a single sexually oriented usage. Because
zoning is an important regulatory..'tool when properly enacted, the Working. Group
believes a careful explanation of the'iaw and a review of potential problems in drafting
zoning ordinances may be helpful .to. communities considering zoning to regulate
sexually oriented businesses.
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A. Supreme Court Decisions
The U.S. Supreme Court upheld the validity of municipal adult enterta-inment
zoning regulations in Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440
(1976), and City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 926 (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 1,000 -foot
restriction if a proposed use would not be contrary to the public interest and/or other
factors were satisfied. Youno, su ra, 427 U.S. at 54 n.7, 96 S.Ct. at 24.44 n.7. The
ordinances were supported by urban planners and real estate experts who testified that
concentration of adult -type establishments "tends to attract an undesirable quantity
and quality of transients, adversely affects property values, causes an increase in
crime, especially prostitution, and encourages residents and businesses to move
elsewhere." Id. at 55, 96 S.Ct. at 2445. A "myriad of locations were left available for
adult establishments outside the forbidden 1,000 -foot distance zone, and no existing
establishments were affected. Id. at 71 n.35, 96 S.Ct. at 2453 n.35.
Writing for a plurality of four, Justices 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_pLe.vent-blight; (2)
the ordinance _was _d- _ec'pd at preventing "secondary effects" of .acids -establishment
concentration rather than protecting citizens from unwanted "off ensiv_e"_speech; (3) the
ordinance did not greatly restrict access to lawful speech, and (4) "the city must be
allowed a reasonable opponunily to experiment with solutions to admittedly .serious
problems." Id. at 63 n.18,71 nn.34, 35, 96 S. Ct. at 24.48-49 n.18, 2452-53 nn.34, 35.
8/ The only reported Minnesota court case reviewing an adult entertainment zoning
ordinance is City of St. Paul v. Carlone, 419 N.W.2d 129 (Minn. Ct. App. 1988)
(upholding facial constitutionality of t. aul 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. Young v. American Mini Theaters, Inc., 427 U.S. 50, 52
n.2, 96 S.Ct. 24-40, 2444 n.2 (1976).
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rJ
Justice Stevens did not expressly describe the standard he had used, but it was
clear that the plurality would afford non -obscene sexually explicit speech lesser First
Amendment protection than other categories of speech. However, four dissenters and
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-part 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; it it turthers an important or
substantial governmental interest, if the governmental interest is unrelated to
the suppression of free expression: and if the incidental restriction on .. .
First "6ni dment freedom is no greater than is essential to the furtherance 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 clearly
articulated standard of review, post-ygunq courts often applied the O'Brien test
advocated by Justice Powell in his concurring opinion. Many ordinances regulating
sexually oriented businesses were.,ovalidated under the O'Brien test. See R.M. Stein,
Regulation of Adult Businesses 1-hr6uah Zoning After Renton, 18 Pac. L.J. 351, 360
(1987) ("consistently invalidated"); S.A. Bender,.. Regulating Pornography Through
Zoning: Can We 'Clean Up' Honolulu? 8 U. Haw. L. Rev. 75, 105 (1986) (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. City of Minneapolis, 698 F.2d 936 (8th
Cir. 1983). In Alexander, the challenged ordinance had three major restrictions on
sexually oriented businesses: distancing from specified uses, prevention of
concentration and amortization. It prohibited a sexually oriented business from
operating within 500 feet of districts zoned for residential or office -residences, a church,
-32-
state -licensed day care facility and certain public schools. It forbade an adults -only
facility from operating within 500 feet of any other adults -only facility. Finally, the
ordinance required existing sexually oriented entertainment establishments to co-nform
to its provisions by moving to a new location, if necessary, within four years.
The Eighth Circuit ruled that the Minneapolis 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 Court concluded.
Alexander, su ra, 698 F.2d at 938.
In Renton, supra, the United States Supreme Court adopted a clearer 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 -family dwelling, church, park or
school.
Justice Rehnquist, writing for a Sourt 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 form of time, place and manner regulation."
Id. at 46, 106 S.Ct. at 928. When time, place and manner regulations are "content -
neutral" and not enacted "for the purpose of restricting speech nn 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 rt 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, 106 S.Ct. at 929 (emphasis in original). Once a time, place uc
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
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allows for reasonable avenues of communication," Rehnquist wrote for the Court. Id. at
50, 106 S.Ct. 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 heavily" on studies of the secondary effects
of adult entertainment establishments by Seattle and the experiences of other cities,
Rehnquist added. Id. at 51, 106 S.Ct. at 930-31.
The First Amendment does not require a city, before enacting 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 affected by the fact
that Seattle ultimately chose a different method of adult theater zoning than
that chosen by Renton, since Seattle's choice of a different remedy to
combat the secondary effects of adult theaters does not call into question
either Seattle's identification of those secondary effects or the relevance of
Seattle's experience to Renton.
Id. at 51-52, 106 S.Ct. at 931.
Rehnquist's inquiry then addressed the means chosen to further Renton's
substantial interest and inquired into whether the Renton -ordinance was sufficiently
"narrowly tailored."
His comments on Renton's meant to further its substantial interest .suggest that
municipalities have a wide latitude in enacting content -neutral ordinances aimed at the
secondary effects of adult -entertainment establishments. He quoted the Young
plurality for the proposition that:
It is not our function to appraise the wisdom of (the city's) decision to require
adult theaters to be separated rather than concentrated in the same
areas. . . . (T)he city must be allowed a reasonable opportunity to
experiment with solutions to admittedly serious problems.
Id. at 52, 106 S.Ct. at 931 (quoting Youn , supra, 427 U.S. at 71, 96 S.Ct. at 2453).
-34-
As to the "narrowly tailored" requirement, 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 availability of
alternative avenues of communication — was satisfied by the district court's finding that
620 acres of land, or more than five percent of Renton, were left available for adult -
entertainment uses, even though some of that developed area was already occupied
and the undeveloped land was not available for sale or lease. A majority of the Court
found:
That [adult theater owner$] 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 First Amendment violation.... In our view, the First
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.Ct. at 932.
B. Standards and Need for Legal Zoning
Unlike Young, the Renton case 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/
10/ Of 11 recent post -Renton adult -entertainment zoning decisions by federal courts,
five invalidated or finances, three upheld ordinances and three ordered a remand
to district court for further proceedings. Zoning ordinances were struck in Avalon
Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir. 1987)( city council failed to oTier
(Footnote 10 Continued on Next Page)
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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 effects of
sexually oriented businesses.
1. Documentation to Support Zoning Ordinances
Sexually oriented speech which is not obscene cannot be restricted on the basis of
its content without running afoul of the First 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 entertainment zoning ordinances have been
invalidated for failure of the enacting body to document the need for zoning regulations.
Thus, one court invalidated a zoning ordinance because there was "very little, 4 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); Tollis Inc. v. San
Bernadino County, 827 F.2d 1328 (9th Cir. 1987) (no evidence presente to
legislative body secondary harmful effects); Ebel v. Corona, 767 F.2d 635 (9th
Cir. 1985) (lack of effective alternative locationsl; 11126 Baltimore Boulevard,' Inc.
v. Prince -George's Coun . of Ma ' land, 684 F. Supp. 884 1988
(insufficient evidence of secondary effects presented to legislative body; special
exception provisions grant excessive discretionary authority to zoning officials);
and Peoples Taos, Inc. v. Jackson County Legislature, 636 F. Supp. 1345 (W.D.
Mo. 1986) (improper legis ative purpose to prevent continued operation of adult -
entertainment establishment). Zoning ordinances were upheld in SDJ, Inc. v. City
of Houston, 837 F.2d 1268 (5th Cir. 1988); FW/PBS, Inc. v. City of 15allas, 837 F.2d
1298 (51ir. 1988); and S & G News. Inc. v. n( of Soulhoate, 638 F.Supp. 1060
(E.D. Mich. 1986), aff'd without publisned opinion, 819 F.2d 1142 (6th Cir. 1987).
Remands were. or Bred in hris v.&�it�o nn Arbor, 824 F.2d 489 (6th Cir.
1987), cert. denied, U.S. , 108t. 1013 1988) remand for determination
of excessive restrictions); International Food & Beveraoe Systems v. Ci of Fort
Lauderdale, 794 F.2d 1520 (11th Cir. 1986) (remandor reconsideration in ig t o
Renton, supra-, nude bar ordinance), and Walnut Properties, Inc. v. City of Whittier,
808 F.2 1331 (9th Cir. 1986) (reman , in part, or etermination o land
availability).
-36-
11126 Baltimore Boulevard, su ra, 684 F. Supp. at 895; see also Tollis V. San
Bernadino County, 827 F.2d 1329, 1333 (9th Cir. 1987) (ordinance construed to prohibit
single showing of adult movie in zoned area; invalidated for failure to present evidence
of secondary effects of single showing); but see Thames Enterprises v. City of St. Louis,
851 F.2d 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
reasonably believed to be relevant to the problem that the city addresses." Id. at 51,
106 S.Ct. at 931. See also SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274 (5th Cir.
1988) (public testimony from experts, supporters and opponents and consideration of
studies by Detroit, Boston, Dallas and Los Angeles sufficient evidence of legitimate
purpose).
The first section of this report summarizes evidence from various cities
documenting the secondary effects of sexually oriented businesses. Following Renton,
it is intended that local communities will rtfake use of this evidence in the course of
assembling support for reasonable regulation of sexually oriented businesses.
2. Availability of Locations for Sexua)ly 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
oriented business to operate under the zoning scheme. A municipality must "refrain
from effeciively denying ... a reasonable opportunity to open and operate" a sexually
oriented business. Renton, supra, 475 U.S. at 54, 1 D6 S. Ct. at 932.
Access may be regarded as unduly restricted if adult entertainment zones are
unreasonably small in area or if the number of locations is unreasonably few. There is
no set amount of land or number of locations constitutionally required. The Renton
-37-
court found that 520 acres of "accessible real estate," including land "criss-crosseci oy
freeways" -- more than five percent of the entire land area in Renton -- was sufficient.
475 U.S. at 53, 106 S.Ct. at 932. The Young court found the availability of "myriad"
locations sufficient. 427 U.S. at 72 n.35, 96 S.Ct. at 2453 n.35.
Whether .058 square miles constituting .23 of 1 percent of the land area within the
city's central business zone is sufficient is not clear. See Alexander v. The City of
Minneapolis (Alexander II), No. 3-88-808, slip_op. at 22 (D. Minn. May 22, 1989) (less
than 1 % of land area could be valid if "ample actual opportunities" for relocation exist);
Christy v. City of Ann Arbor, 824 F.2d 489; 490, 493 (6th Cir. 1987) (remanding for a
determination of excessive restriction). See also 11126 Baltimore Boulevard, Inc. v.
Prince George's County of Maryland, 684 F. Supp.' 884 (D. Md. 1988) (20 alternative
locations sufficient); Alexander v. City of Minneapolis, 696 F.2d 936, 939 n.7 (8th 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 maybe measured in
relation to a number of factors. See, e.g., Alexander II, supra, slip op. at 22-23
(insufficient if relocation site owners refuse to sell or lease); International Food &
Beverage Systems, Inc., 794 F.2d 1520, 1526->j11th Cir. 1986) (suggesting number of
sites should be determined by reference to community needs, incidence of
establishments in other cities, goals .of city plan); Basiardanes v. City of Galveston, 682
F.2d 1203, 1209 (5th Cir. 1982) (pre -Menton case striking zoning regulation restricting
adult theaters to industrial areas that were "largely a patchwork of swamps,
warehouses, and railroad tracks . . . lack[ing) access roads and retail
establishments").
However, the fact that land zoned for adult establishments is already occupied or
not currently for sale or lease will not invalidate a zoning ordinance. Renton, supra, 475
U.S. at 53-54, 106 S.Ct. at 932; but see, Alexander II, supra, slip op. at 22-23
(reasonable relocation opportunity absent where owners refuse to sell or rent). There is
no requirement that it be economically advantageous for a sexually oriented business
to locate in the areas permitted by lave.
M
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
F.2d 1268 (5th Cir. 1988), the Court was asked to invalidate a 750 -foot distancing
requirement on the ground that the city had not proved that 750 feet, as opposed to
some other distance, was necessary to serve the city's interest.
The Court found that an adult entertainment zoning ordinance is "sufficiently well
tailored 'rf 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), and 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 -or -multiple family dwellings,
churches, parks or schools).
The Working Group 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 one roof, as in a sexually oriented
mini -mall. The city of St. 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, 612 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. Following
Renton, it is suggested that lawmakers document the adverse effects which the
-39-
community seeks to prevent by prohibiting multiple -use businesses before enacting
this type of ordinance.
4. Requiring Existinq Businesses to Comply with Ne`v Zoning
Zoning ordinances can require existing sexually -oriented businesses to close 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 iits
present location, even though it is a non -conforming use, for a limited period.
The Minnesota Supreme Court has explained the theory this way:
he theory behind this legislative device is that the useful life of. the
nonconforming use corresponds roughly to the amortization period, so that
the owner is not deprived of his property until the end of its useful life. 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.
Naeoele Outdoor Advertising Co. v. Villaoa'of Minnetonka, 162 N.W.2d 206, 213 (Minn.
1968).
Such provisions applied to sexually oriented -businesses have been said .to be
"uniformly upheld." Dumas v. City of Dallas, 648 F. Supp. 1061, 1071 (N.D. Tex. 1986),
aff'd, FW/PBS. Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988) (citing cases).
As detailed in the first section of 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 sexually oriented businesses are
located in residential areas or near other sensitive uses and when sexually oriented
businesses are concentrated near each other or near alcohol oriented businesses. The
Working Group believes that evidence from studies such as those described in the first
section of this report and anecdotal evidence from neighborhood residents and police
officers should be used to support the need for zoning ordinances which 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 parks.
3. To reduce adverse impacts from concentration of sexually
oriented businesses, communities should adopt zoning ordinances
which set distance requirements between liquor establishments and
sexually oriented businesses and between sexually oriented businesses
and should consider restrictirig 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
new laws.
IV. LICENSING AND OTHER REGULATIONS
Licensing and other regulations may also be used to reduce the adverse effects of
sexually oriented businesses. The critical requirements which communities must keep
M
in mind are that regulations must be narrowly crafted to address adverse secondary
effects, they must be reasonably related to reduction of these effects and they must be
capable of objective application. If these standards can be met, licensing and -other
regulatory provisions may play an important role in preventing unwanted exposure to
sexually . oriented materials and in reducing the crime problems associated with
sexually oriented businesses.
It is clear that failure to act upon a license application for a sexually oriented
business cannot take the place of regulation. Without justification, denial or failure to
grant a license is a prior restraint in violation of the First Amendment.. Parkway Theater
Corporation v. City of Minneapolis, No. 716787, slip. op. (Henn. Co. Dist. Ct., Sept. 24,
1975).
An ordinance providing for license revocation of an adult motion picture theater if
the licensee is convicted of an obscenity offense is also likely to be held
unconstitutional as a prior restraint of free speech. Alexandery. City of St. Paul, 227
N.W.2d 370 (Minn. 1975). The Alexander court stated:
[Mhen the city licenses a motion picture theater, it is licensing an
activity protected by the First Amendment, and as a result the power of the
city is more limited than when the city licenses activities which do not have
First Amendment protection, suoh as the business of'selling liquor or running
a massage parlor.
Id. at 373 (footnote omitted); see a]so, Oohen v. City of Daleville, 695 F. Supp. 1168,
1171 (M.D. Ala. 1968) (past sale of obscene material cannot justify revocation of
license).
However, the courts have permitted communities to deny licenses 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. City of Dallas, supra, the court reviewed a requirement that a license
applicant not have been convicted of certain crimes within a specified period. Five of
the enumerated crimes were held to be not sufficiently related to the purpose of the
-42-
adult entertainment licensing ordinance because the city had made no findings on their .
justification. The invalid enumerated offenses were controlled substances act
violations, bribery, 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, clear findings must first be made which
justify denial of licenses on that basis.
The Dumas court also invalidated portions of the licensing ordinance permitting the
police chief to deny a license 'rf he finds that the applicant "is unable to operate or
manage a sexually oriented business premises in a peaceful and law-abiding manner"
or is not "presently fit to operate a sexually oriented business." Neither provision
satisfied the constitutional requirement that "any license _requirement for an activity
related to expression must contain narrow, objective, and definite standards to guide
the licensing authority." Id. at 1072. See also Alexander 11, supra, slip op. at 16
(unconstitutionally vague to define regulated bookstores as those selling "substantial or
significant portion" of certain publications); 11126 Baltimore Boulevard, supra, 684
F. Supp. at 898-99 (striking ordinance allowing zoning officials to deny permit if adult
entertainment establishment is not "in harmony" with zoning plan, does not
"substantially impair" master plan, does not "adversely affect" health, safety and
welfare 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. See, e.a., Doe v.
City of Minneapolis, 693 F. Supp. 774 (D. Minn. 1966).
Licensing provisions and ordinances forbidding massage parlors employees from
administering massages to persons of the opposite sex have withstood equal
protection and privacy and associational right challenges. See Clampitt v. City of Ft.
Wayne, 682 F. Supp. 401, 407-408 (N.D. Ind. 1988) (equal protection); Wigginess, Inc.
v. Fruchtman, 482 F. Supp. 681, 6B9-90 (S.D. N.Y. 1979), aff'd, 628 F.2d 1346 (2d Cir.
1980), cert. denied, 449 U.S. 842, 101 S.Ct. 122. However, some courts have found
same-sex massage regulations to be in violation of Title V11 of the Civil Rights Act of
-43-
1964. See Stratton v. Drumm, 445 F. Supp. 1305, 1310-11 (D. Conn. 1978); Cianciolo
v Members of City Council, .376 F. Supp. 719, 722-24 (E.D. Tenn. 1974); Joseph v.
House, 353 F. Supp. 367, 374-75 (E.D. Va.), aff'd sub nom. Joseph v. Blair,..482. D.2d
575 (4th Cir.), cert. denied, 416 U.S. 955, 94 S. Ct. 1968 (1974). Contra, Aldred v.
Dulin , 538 F.2d 637 (4th Cir. 1976).
Although the Working Group expressed strong concern about the operation of
prostitution under the guise of massage parlors, this type of regulation is not advisable
because legitimate therapeutic massage establishments could find their operations
curtailed. Prostitution may be better controlled through prosecution and use of post-
conviction actions such as forfeiture or enjoining a public nuisance.
In 1985, a court upheld an ordinance making it unlawful to display for commercial
purposes material "harmful to minors" unless the material is in a sealed wrapper and, if
the cover is harmful to minors, has an, opaque cover. Upper Midwest Booksellers
Ass'n v. City of Minneapolis, 780 F.2d 1389 (8th Cir. 1985). Last year, the legislature
enacted a state law similarly prohibiting display of sexually 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. S 617.293 (1988). This .
taw has the potential to protect minors. from exposure to sexually oriented materials.
Communities also have considerable discretion to regulate signage so that the exterior
of sexually oriented businesses does not expose unwitting observers to sexually explicit
messages.
RECOMMENDATIONS
I.... _ 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.
2. 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.
3. Communities should adopt regulations which reduce
exposure of 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.
CONCLUSION
Dere are many actions which communities may take within the law to protect
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 oriented businesses and removing materials which violate community
standards from local outlets. Forfeiture and injunction to prevent public nuisance
should be available where sexually oriented businesses are the site of sex-related
crimes and violations of laws pertaining to gambling, liquor or controlled substances.
These actions will remove the most egregious establishments from communities.
Zoning can reduce the likelihood that sexually oriented businesses will lead to
neighborhood blight. Licensing can sever the link 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, seizure of profits, zoning and regulation of
sexually oriented businesses should only be done in keeping with the constitutional
-45-
requirements of the First Amendment. Rational regulation can be fashioned to protect
both our communities and our constitutional rights.
-4-6-
RESOLUTION NO. 2007 -
RESOLUTION ESTABLISHING FINDINGS OF FACT THAT
ZONING AND LICENSING REGULATIONS
OF SEXUALLY ORIENTED BUSINESSES ARE
NECESSARY TO MINIMIZE THE POTENTIAL SECONDARY ADVERSE
EFFECTS OF SUCH BUSINESSES ON THE CITY OF OTSEGO.
THE CITY COUNCIL OF THE CITY OF OTSEGO HEREBY RESOLVES THAT:
LEGAL BACKGROUND
WHEREAS, the Otsego City Council has been provided with background
information on sexually oriented businesses which, in summary fashion, is as follows:
1. The United States Supreme Court in its decisions of Young v. American
Mini Theaters, 96 S.Ct. 2440 (1976), and City of Renton v. Playtime
Theaters, 106 S.Ct. 925 (1986) has held that sexually oriented businesses
engaged in the offering of adult fare characterized by an emphasis on
matter depicting specified sexual activities or anatomical areas may not be
completely prohibited from doing business within cities by municipal
ordinances.
2. The Supreme Court has further held that municipalities may regulate
sexually oriented businesses with lawfully enacted content -neutral time,
place and manner zoning and licensing ordinances if said regulations are
not merely a pretext for completely prohibiting within a City sexually
oriented businesses based on the content of the material being offered.
3. The Supreme Court has concluded that lawful content -neutral time, place
and manner regulations may have as their focus the minimization of the
adverse secondary effects on a community generated by the location and
operation of a sexually oriented business within a community. Adverse
secondary effects are defined as:
a. Increased incidence of crime.
b. Diminution of property values within the community and especially
the values of those properties adjacent to or in close proximity to
the sexually oriented business, and
C. Increased risk for the spread of sexually transmitted diseases.
EXHIBIT D
FINDINGS OF FACT
WHEREAS, based on the legal background referenced herein, the Otsego City
Council hereby makes the following Findings of Fact in connection with the regulation of
sexually oriented businesses within the City:
That the City Council has reviewed and considered all the material and
unsworn testimony presented before it in connection with the regulation of
sexually oriented businesses within the City.
2. The City Council has reviewed and studied the "Report of the Attorney
General's Working Group on Regulation of Sexually Oriented
Businesses", dated June 6, 1989 referred to hereafter as the "Report".
3. The Report considered evidence from studies conducted in Minneapolis
and St. Paul and in other cities throughout the country relating to sexually
oriented businesses.
4. The Attorney General's Report, based upon the above referenced studies
and the testimony presented to it has concluded "that sexually oriented
businesses are associated with high crime rates and depression of
property values". In addition, the Attorney General's Work Group "...heard
testimony that the character of a neighborhood can dramatically change
when there is a concentration of sexually oriented businesses adjacent to
residential property".
5. The Report concludes that sexually oriented businesses have an impact
on the neighborhoods surrounding them which is distinct from the impact
caused by other commercial uses.
6. The Report concludes that residential neighborhoods located within close
proximity to adult theaters, book stores, and other sexually oriented
businesses experience increased crime rates (sex-related crimes in
particular), lowered property values, increased transiency, and decreased
stability of ownership.
7. The Report concludes the adverse impacts which sexually oriented
businesses have on surrounding areas diminished as the distance from
the sexually oriented businesses increases.
8. The Report concludes that studies of other cities have shown that among
the crimes which tend to increase either within or in the near vicinity of
sexually oriented businesses are rapes, prostitution, child molestation,
indecent exposure, and other lewd and lascivious behavior.
PA
9. The Report concludes that the Phoenix, Arizona study confirmed that the
sex crime rate was on the average 500 percent higher in areas with
sexually oriented businesses.
10. The Report concludes that many members of the public perceive areas
within which sexually oriented businesses are located as less safe than
other areas which do not have such uses.
11. The Report concludes that studies of other cities have shown that the
values of both commercial and residential properties either are diminished
or fail to appreciate at the rate of other comparable properties when
located in proximity to sexually oriented businesses.
12. The Report concludes that the Indianapolis, Indiana study established that
professional real estate appraisers believe that an adult book store would
have negative effect on the value of both residential and commercial
properties within a one to three block area of the store.
13. The City Council finds the suburban characteristics of Otsego are similar
to those of the cities cited by the Reports when considering the effects of
sexually oriented businesses and that the findings concerning the effects
of sexually oriented businesses in other cities documented in the Reports
are relevant to Otsego's circumstances.
14. The City Council finds, based upon the Report and the studies citied
herein, that sexually oriented businesses will have adverse secondary
effects upon certain pre-existing land uses within the City of Otsego and
that in reliance on the data and conclusions made by the studies
documented in the Report, it is not necessary for Otsego to conduct its
own independent study concerning the effects of sexually oriented
businesses locating within the City.
15. Pursuant to the United States Supreme Court case of City of Renton v.
Playtime Theaters, Inc., 106S.Ct. 925 (1988), and others, it is clear that a
permanent total prohibition against sexually oriented businesses would be
unconstitutional.
16. The City of Otsego is a predominantly agricultural/residential community
with a relatively small proportion of its area devoted to commercial and
industrial uses.
17. The City Council finds that the location of sexually oriented businesses
within the City of Otsego will have a detrimental effect on the City by
unnecessarily lowering property values within the City if said
establishments were located in inappropriate areas.
3
19. The City Council finds there will be increased crime within the City from
inadequate regulations of sexually oriented businesses locating and
operating within the City.
20. The City Council finds that content -neutral time, place and manner
restrictions that regulate the zoning and licensing of sexually oriented
businesses are necessary in the City of Otsego to minimize the adverse
secondary effects which will accompany the location and operation of said
businesses within the City but that said regulations be drafted in such a
manner as to allow for reasonable opportunity to open and operate
sexually oriented businesses within the City while minimizing the
secondary adverse effects.
NOW THEREFORE, BE IT RESOLVED that that content -neutral time, place and
manner restrictions that regulate the zoning and licensing of sexually oriented
businesses are necessary in the City of Otsego to minimize the adverse secondary
effects which will accompany the location and operation of said businesses within the
City but that said regulations be drafted in such a manner as to allow for reasonable
opportunity to open and operate sexually oriented businesses within the City while
minimizing the secondary adverse effects.
MOTION BY:
SECOND BY:
ALL IN FAVOR:
THOSE OPPOSED:
4
ADOPTED by the Otsego City Council this 25th day of June, 2007.
CITY OF OTSEGO
Im
Larry Fournier, Mayor
ATTEST:
Judy Hudson, Zoning Administrator/City Clerk
5
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CITY OF OTSEGO
WRIGHT COUNTY, MINNESOTA
ORDINANCE NO. 2007 —
AN ORDINANCE AMENDING SECTION 31 OF THE OTSEGO ZONING ORDINANCE
RELATING TO THE SEPARATION DISTANCE BETWEEN PRINCIPAL
ADULT USE BUSINESSES AND USES FOUND TO BE SENSITIVE TO SUCH
ADULT USES WITHIN THE CITY OF OTSEGO
THE CITY COUNCIL OF OTSEGO ORDAINS:
Section 1. Section 20-31-2, ADULT USE -GENERAL of the Otsego Zoning Ordinance
shall be amended to read as follows:
E. Minnesota State Statute Section 617.242 shall not apply
Section 2. Section 20-31-3, ADULT USES -PRINCIPAL of the Otsego Zoning
Ordinance shall be amended to read as follows:
A. Adult use -principal shall be located at least one
thousand six hundred and fiftv (1 650) radial feet, as measured in a
straight line from the closest point of the property line of the building upon
which the adult use -principal is located to the property line of:
1. Residentially zoned property
2. A licensed day care center
3. A public or private educational facility classified as an elementary,
junior high or senior high
4. A public library
5. A public park
6. Another adult use -principal
7. An on -sale liquor establishment
B. An adult use -principal shall be located at least six h, neirincl tQnQ1 one
thousand six hundred and fifty (1,650) feet as measured from one another.
Section 3. This ordinance amendment shall be effective immediately upon its
passage and publication.
EXHIBIT G
MOTION BY:
SECOND BY:
ALL IN FAVOR:
THOSE OPPOSED:
ADOPTED this 25th day of June, 2007 by the City Council of the City of Otsego,
Minnesota.
CITY OF OTSEGO
in
Larry Fournier, Mayor
ATTEST:
Judy Hudson, City Clerk/Zoning Administrator
CITY OF OTSEGO
WRIGHT COUNTY, MINNESOTA
ORDINANCE NO. 2007 —
AN ORDINANCE RELATING TO THE LICENSING AND REGULATION OF
ADLULT USE BUSINESSES WITHIN THE CITY OF OTSEGO
THE CITY COUNCIL OF OTSEGO ORDAINS:
Section 1. Chapter 7, Section 12 of the Otsego City Code shall be added to read as
follows:
SECTION 12
ADULT USE BUSINESSES
Section
7-12-1
Purpose and Intent
7-12-2
Definitions
7-12-3
Classification
7-12-4
License Required
7-12-5
Issuance of License
7-12-6
License Fees
7-12-7
Inspection
7-12-8
Expiration of License
7-12-9
Suspension of License
7-12-10
Revocation of License
7-12-11
Hearing and Appeal
7-12-12
Transfer of License
7-12-13
Additional Regulations
7-12-14
Prohibition against Children in an Adult Use Businesses
7-12-15
Exemptions
7-12-16
Enforcement
7-12-17
Severability
7-12-1: PURPOSE AND INTENT:
A. It is the purpose of this chapter to regulate sexually oriented businesses to
promote the health, safety, morals, and general welfare of the citizens of
the city, to guard against the inception and transmission of disease, and to
establish reasonable and uniform regulations. The provisions of this
chapter have neither the purpose nor effect of imposing a limitation or
EXHIBIT H
restriction on the content of any communicative materials, including
sexually oriented materials. Similarly, it is not the intent of this chapter to
restrict or deny access by adults to sexually oriented materials protected
by the first amendment, or to deny access by the distributors and
exhibitors of sexually oriented entertainment to their intended market.
B. The city council further finds that experience from other cities
demonstrates that sexually oriented businesses conducted in private by
members of the same or the opposite sex, and employing personnel with
no specialized training, are susceptible to operation in a manner
contravening, subverting or endangering the health, safety and welfare of
members of the community by being the sites of acts of prostitution, illicit
sex, and occasions of violent crimes, thus requiring close inspection,
licensing, and regulation.
C. Minnesota State Statute Section 617.242 shall not apply.
7-12-2: DEFINITIONS: The following words, terms, and phrases, when used in this
chapter, shall have the following meaning:
Adult Arcade: Any place to which the public is permitted or invited wherein coin-
operated or slug -operated or electronically, electrically, or mechanically controlled still or
motion picture machines, projectors, or other image -producing devices are maintained
to show images to five (5) or fewer persons per machine at any one time, and where the
images so displayed are distinguished or characterized by the depicting or describing of
"specified sexual activities" or "specified anatomical areas".
Adult Bookstore, Adult Video Store, or Adult Store: A commercial establishment
which as a principal business purpose offers for sale or rental for any form of
consideration any one or more of the following:
A. Books, magazines, periodicals or other printed matter, or photographs, films,
motion pictures, videocassettes or video reproductions, slides, or other visual
representations which depict or describe "specified sexual activities" or "specified
anatomical areas"; or
B. Instruments, devices, or paraphernalia which are designed for use in connection
with "specified sexual activities".
Adult Cabaret: A nightclub, bar, restaurant, or similar commercial establishment which
regularly features:
A. Persons who appear seminude or in a state of nudity; or
B. Live performances which are characterized by the exposure of "specified
anatomical areas" or by "specified sexual activities"; or
C. Films, motion pictures, videocassettes, slides, or other photographic
reproductions which are characterized by the depiction or description of
"specified sexual activities" or "specified anatomical areas".
Adult 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 between an employee of the establishment and a customer, if such
service is distinguished or characterized by an emphasis on "specified sexual activities"
or "specified anatomical areas".
Adult Massage Parlor: A massage parlor which excludes minors by reason of age, or
which provides for any form of consideration, the rubbing, stroking, kneading, tapping,
or rolling of the body, if the service provided by the massage parlor is distinguished or
characterized by an emphasis on "specified sexual activities" or "specified anatomical
areas".
Adult Motel: A hotel, motel or similar commercial establishment which:
A. Offers accommodations to the public for any form of consideration; provides
patrons with closed-circuit television transmissions, films, motion pictures,
videocassettes, slides, or other photographic reproductions which are
characterized by the depiction or description of "specified sexual activities" or
"specified anatomical areas"; and has a sign visible from the public right of way
which advertises the availability of this adult type of photographic reproductions;
or
B. Offers a sleeping room for rent for a period of time that is less than ten (10)
hours; or
C. Allows a tenant or occupant of a sleeping room to subrent the room for a period
of time that is less than ten (10) hours.
Adult Motion Picture Theater: A commercial establishment where, for any form of
consideration, films, motion pictures, videocassettes, slides, or similar photographic
reproductions are regularly shown which are characterized by the depiction or
description of "specified sexual activities" or "specified anatomical areas".
Adult Sauna: A sauna which excludes minors by reason of age, or which provides for
any form of consideration, 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 service provided by the sauna is distinguished or characterized by
an emphasis on "specified sexual activities" or "specified anatomical areas".
Adult Theater: A theater, concert hall, auditorium, or similar commercial establishment
which regularly features persons who appear seminude or in a state of nudity or live
performances which are characterized by the exposure of "specified anatomical areas"
or by "specified sexual activities".
City Administrator: The city administrator of the City of Otsego.
Distinguished or Characterized by an Emphasis Upon: The dominant or principal
theme of the object referenced. For instance, when the phrase refers to films "which are
distinguished or characterized by an emphasis upon the exhibition or display of
specified anatomical areas", or "specified sexual activities".
Employee, Employ or Employment: Describes and pertains to any person who
performs any service on the premises of a sexually oriented business on a full-time,
part-time or contract basis, regardless of whether the person is denominated as an
employee, independent contractor, agent, or by another status. "Employee" does not
include a person exclusively on the premises for repair or maintenance of the premises,
or for the delivery of goods to the premises.
Escort: A person who, for consideration, agrees or offers to act as a companion, guide,
or date for another person, or who agrees or offers to privately model lingerie or to
privately perform a striptease for another person.
Escort Agency: A person or business association who furnishes, offers to furnish, or
advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or
other consideration.
Establish or Establishment: Means and includes any of the following:
A. The opening or commencement of any sexually oriented business as a new
business;
B. The conversion of an existing business, whether or not a sexually oriented
business, to any sexually oriented business;
C. The addition of any sexually oriented business to any other existing sexually
oriented business; or
D. The relocation of any sexually oriented business.
Licensee: A person in whose name a license to operate a sexually oriented business
has been issued, as well as the individual listed as an applicant on the application for a
license; and, in the case of an employee, a person in whose name a license has been
issued authorizing employment in a sexually oriented business.
Nude Model Studio: Any place where a person who appears in a state of nudity or
displays "specified anatomical areas" is provided to be observed, sketched, drawn,
painted, sculptured, photographed, or similarly depicted by other persons who pay
money or any form of consideration.
Nudity, Nude or a State of Nudity:
A. The appearance of a human bare anus, male genitals, female genitals, or female
breast; or
B. A state of dress which fails to opaquely cover a human anus, male genitals,
female genitals, or areola of the female breast.
Operate or Cause to be Operated: To cause to function or to put or keep in a state of
doing business.
Operator: Any person on the premises of a sexually oriented business who is
authorized to exercise operational control of the business, or who causes to function or
who puts or keeps in operation, the business. A person may be found to be operating or
causing to be operated a sexually oriented business regardless of whether that person
is an owner, part owner, or licensee of the business.
Person: An individual, proprietorship, partnership, corporation, association, or other
legal entity.
Regular Features or Regularly Shown: A consistent or substantial course of conduct,
such that the films or performances exhibited constitute a substantial portion of the films
or performances offered as a part of the ongoing business of the sexually oriented
business.
Seminude or in a Seminude Condition: A state of dress in which clothing covers no
more than the genitals, pubic region, and areola of the female breast, as well as
portions of the body covered by supporting straps or devices.
Sexual Encounter Center: A business or commercial enterprise that, as one of its
primary business purposes, offers for any form of consideration a place where two (2) or
more persons may congregate, associate, or consort for the purpose of "specified
sexual activities". The definition of "sexual encounter center" or any sexually oriented
businesses shall not include an establishment where a medical practitioner,
psychologist, psychiatrist, or similar professional person licensed by the state engages
in medically approved and recognized sexual therapy.
Sexually Oriented Business or Adult Use Business: An adult arcade, adult
bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater,
adult theater, escort agency, nude model studio, or sexual encounter center.
Specified Anatomical Areas:
A. Human male genitals in a discernibly turgid state, even if completely and
opaquely covered; or
B. Less than completely and opaquely covered human genitals, pubic region,
buttocks, or a female breast below a point immediately above the top of the
areola.
Specified Sexual Activities: Means and includes any of the following:
A. The fondling or other erotic touching of human genitals, pubic region, buttocks,
anus, or female breasts;
B. Sex acts, normal or perverted, actual or simulated, including intercourse, oral
copulation, or sodomy;
C. Masturbation, actual or simulated; or
D. Excretory functions as part of or in connection with any of the activities set forth
in subsections A through C of this definition.
Substantial Enlargement of a Sexually Oriented Business: The increase in floor
area occupied by the business by more than twenty five percent (25%), as the floor area
existed on the effective date hereof.
Transfer of Ownership or Control of a Sexually Oriented Business: Means and
includes any of the following:
A. The sale, lease, or sublease of the business;
B. The transfer of securities which constitute a controlling interest in the business,
whether by sale, exchange, or similar means; or
C. The establishment of a trust, gift, or other similar legal device which transfers the
ownership or control of the business, except for transfer by bequest or other
operation of law upon the death of the person possessing the ownership or
control.
7-12-3: CLASSIFICATION: The following are classified as sexually oriented
businesses:
A. Adult arcades;
B. Adult bookstores, adult video stores, adult stores;
C. Adult cabarets;
D. Adult conversation/rap parlors;
E. Adult massage parlors;
F. Adult motels;
G. Adult motion picture theaters;
H. Adult saunas;
I. Adult theaters;
J. Escort agencies;
K. Nude model studios; and
L. Sexual encounter centers.
7-12-4: LICENSE REQUIRED:
A. Prohibition: It is unlawful:
For any person to operate a sexually oriented business without a valid
sexually oriented business license issued by the city for the particular type
of business.
2. For any person who operates a sexually oriented business to employ a
person to work for the sexually oriented business who is not licensed as a
sexually oriented business employee by the city pursuant to this chapter.
3. For any person to obtain employment with a sexually oriented business
without having secured a sexually oriented business employee license
pursuant to this chapter.
B. Application Form: An application for a sexually oriented business license or a
sexually oriented business employee license must be made on a form provided
by the city clerk.
C. Required Information: An application shall be considered complete if it includes
the information required in this section. The applicant shall be qualified according
to the provisions of this chapter. The application shall be notarized. The
application shall include the following information:
1. The applicant's full true name and any other names used in the preceding
five (5) years.
2. The current business address.
3. Either a set of fingerprints suitable for conducting necessary background
checks pursuant to this chapter, or the applicant's social security number,
to be used for the same purpose.
4. If the application is for a sexually oriented business license, the name,
business location, legal description, business mailing address and phone
number of the proposed sexually oriented business.
5. Written proof of age, in the form of either: a) a copy of a birth certificate
and current photo, b) a current driver's license with picture, or c) other
picture identification document issued by a governmental agency.
6. The issuing jurisdiction and the effective dates of any license or permit
held by the applicant relating to a sexually oriented business, and whether
any such license or permit has been denied, revoked, or suspended, and
the reason or reasons therefore.
7. If the application is for a sexually oriented business license, the name and
address of the statutory agent or other agent authorized to receive service
of process.
D. The information provided pursuant to subsections C.1 through C.7 of this section
shall be supplemented in writing by certified mail, return receipt requested, to the
city clerk within ten (10) working days of a change of circumstances which would
render the information originally submitted false or incomplete.
E. Diagram of Premises: The application for a sexually oriented business license
must be accompanied by a sketch or diagram showing the configuration of the
premises, including a statement of total floor space occupied by the business.
The sketch or diagram need not be professionally prepared but must be drawn to
a designated scale or drawn with market dimensions of the interior of the
premises to an accuracy of plus or minus six inches (±6"). Applicants who must
comply with section 7-12-13 of this chapter shall submit a diagram meeting the
requirements of that section.
F. Inspections: The applicant must be qualified according to the provisions of this
chapter and the premises must be inspected and found to be in compliance with
the law by the fire department and building official.
G. Execution Of Application: If a person who wishes to operate a sexually oriented
business is an individual, the individual must sign the application for a license as
applicant. If a person who wishes to operate a sexually oriented business is other
than an individual, each individual who has a ten percent (10%) or greater
interest in the business, and each officer, director, general partner, or other
person who will participate directly in decisions relating to management of the
business must sign the application for a license as applicant. Each applicant
must be qualified under section 7-12-5 of this chapter and each applicant shall be
considered a licensee if a license is granted.
H. No Exemption: A person who possesses a valid business license is not exempt
from the requirement of obtaining any required sexually oriented business
license. A person who operates a sexually oriented business and possesses a
business license shall comply with the requirements and provisions of this
chapter, where applicable.
7-12-5: ISSUANCE OF LICENSE:
A. Temporary License: Upon the filing of a completed application for a sexually
oriented business license or a sexually oriented business employee license, the
city shall issue a temporary license to the applicant, which temporary license
shall expire upon the final decision of the city to deny or grant the license.
B. Approval of License: Within thirty (30) days after the receipt of a completed
application, the city administrator shall either issue a license, or issue a written
notice of intent to deny a license, to the applicant. The city administrator shall
approve the issuance of a license unless one or more of the following is found to
be true:
An applicant is under eighteen (18) years of age.
2. An applicant is delinquent in the payment to the city of taxes, fees, fines,
or penalties assessed against him or her or imposed upon him or her in
relation to a sexually oriented business.
3. An applicant has failed to provide information required under section 7-12-
4 of this chapter or which is necessary for issuance of the license or has
falsely answered a question or request for information on the application
form.
4. An applicant has been convicted of a violation of a provision of this
chapter within two (2) years immediately preceding the application. The
fact that a conviction is being appealed shall have no effect.
5. The premises to be used for the sexually oriented business has not been
approved by the fire department and the building official as being in
compliance with applicable laws and ordinances.
6. The license fee required by this chapter has not been paid.
7. An applicant or the proposed establishment is in violation of or is not in
compliance with this chapter.
8. An applicant has been convicted of a crime:
a. Involving any of the following offenses:
(1) Prostitution as described in Minnesota statutes section
609.321;
(2) Solicitation, inducement of promotion of prostitution as
described in Minnesota statutes section 609.322;
(3) Receiving profit derived from prostitution as described in
Minnesota statutes section 609.323;
(4) Other prohibited acts relating to prostitution as described in
Minnesota statutes section 609.324;
(5) Obscenity as described in Minnesota statutes section
617.241;
(6) Sale, dissemination, distribution, display or exhibition of
harmful materials to minors as described in Minnesota
statutes sections 617.293 and 617.294;
(7) Sexual performance by a child as described in Minnesota
statutes section 617.246;
(8) Dissemination or possession of child pornography as
described in Minnesota statutes section 617.247;
(9) Indecent exposure as described in Minnesota statutes
section 617.23;
(10) Criminal sexual conduct as described in Minnesota statutes
sections 609.342, 609.343, 609.344, and 609.345;
(11) Incest as described in Minnesota statutes section 609.365;
or
(12) Criminal attempt, conspiracy, or solicitation to commit any of
the foregoing offenses.
b. For which:
(1) Less than two (2) years have elapsed since the date of
conviction or the date of release from confinement imposed
for the conviction, whichever is the later date, if the
conviction is of a misdemeanor offense;
(2) Less than five (5) years have elapsed since the date of
conviction or the date of release from confinement for the
conviction, whichever is the later date, if the conviction is of
a felony offense; or
(3) Less than five (5) years have elapsed since the date of the
last conviction or the date of release from confinement for
the last conviction, whichever is the later date, if the
convictions are of two (2) or more misdemeanor offenses or
combination of misdemeanor offenses occurring within any
twenty four (24) month period.
9. The proposed sexually oriented business would or does not comply with
the city's zoning ordinance.
C. Conviction: The fact that a conviction is being appealed shall have no effect on
the disqualification of the applicant. For purposes of this section, "conviction":
Means a conviction or a guilty plea; and
2. Includes a conviction of any business entity for which the applicant had, at
the time of the offense leading to the conviction for a crime designated
under this section, a management responsibility or a controlling interest.
D. Time Periods: An applicant who has been convicted of an offense listed in
subsection B.8.a of this section may qualify for a sexually oriented business
license only when the time period required by subsection B.8.b of this section
has elapsed.
E. License Information and Posting: The license, if granted, shall state the name of
the person or persons to whom it is granted, the expiration date and, if the
license is for a sexually oriented business, the address of the sexually oriented
business. A sexually oriented business employee license shall contain a photo of
the licensee. The license shall be posted in a conspicuous place at or near the
entrance to the sexually oriented business so that it may be easily read at any
time. A sexually oriented business employee shall keep the employee's license
on his or her person or on the premises where the licensee is then working or
performing, and shall produce such license for inspection upon request by a law
enforcement officer or other authorized city official.
7-12-6: LICENSE FEES: The annual fee for a sexually oriented business license and a
sexually oriented business employee license shall be set by resolution of the city
council. The investigation fee for the purpose of issuing a license shall be set by
resolution of the city council. In the event that the license is denied upon
application, the license fee shall be refunded; however, no part of the license
investigation fee shall be returned to the applicant. No part of the annual license
fee shall be refunded if the license is suspended or revoked.
7-12-7: INSPECTION:
A. Inspection Required: An applicant, operator, or licensee shall permit law
enforcement officers and any other federal, state, county or city agency in the
performance of any function connected with the enforcement of this chapter,
normally and arguably conducted by such agencies to inspect the premises of a
sexually oriented business for the purpose of ensuring compliance with the law,
at any time it is occupied or open for business.
B. Refusal: A person who operates a sexually oriented business or their agent or
employee commits an offense if the person refuses to permit a lawful inspection
of the premises by a representative of the police department at any time it is
occupied or open for business.
C. Exception: The provisions of this section do not apply to areas of an adult motel
which are currently being rented by a customer for use as a permanent or
temporary habitation.
7-12-8: EXPIRATION OF LICENSE:
A. Period of License and Renewal: Each renewal license shall be issued for a
maximum period of one year. All licenses expire on December 31 of each year.
Each license may be renewed only by making application as provided in section
7-12-4 of this chapter. Application for renewal should be made at least ninety
(90) days before the expiration date. If the council determines good and sufficient
cause is shown by the applicant for failure to file a timely renewal application, the
council may, if other provisions of the chapter are complied with, grant the
application.
B. Denial of License Renewal: If the city administrator denies renewal of a license,
the applicant shall not be issued a license for one year from the date of denial. If,
subsequent to denial, the city administrator finds that the basis for denial of the
renewal license has been corrected or abated, the applicant may be granted a
license if at least ninety (90) days have elapsed since the date denial became
final.
7-12-9: SUSPENSION OF LICENSE: The City Administrator may suspend a license for a
period not to exceed thirty (30) days following written notice and an opportunity to be
heard if the administrator determines that a licensee or an employee of a license has:
A. Violated or is not in compliance with this chapter;
B. Refused to allow an inspection of the sexually oriented business premises as
authorized by this chapter;
C. Knowingly permitted unlawful gambling by any person on the sexually oriented
business premises.
7-12-10: REVOCATION OF LICENSE:
A. Intent to Revoke: The city administrator shall issue a written statement of intent
to revoke a sexually oriented business license if a cause of suspension in section
7-12-9 of this chapter occurs and the license has been suspended within the
preceding twelve (12) months.
B. Basis for Revocation: The city administrator shall issue a written statement of
intent to revoke a sexually oriented business license if the city administrator
determines that:
1. A licensee gave false or misleading information to the city during the
application process;
2. A licensee or operator has knowingly allowed possession, use, or sale of
controlled substances on the premises;
3. A licensee or operator has knowingly allowed prostitution on the premises;
4. A licensee or operator knowingly operated the sexually oriented business
during a period of time when the licensee's license was suspended;
5. A licensee has been convicted of an offense listed in subsection 7-12-
5.B.8.a of this chapter for which the time period required in subsection 7-
12-5.B.8.b of this chapter has not elapsed;
6. On two (2) or more occasions within a twelve (12) month period, a person
or persons committed an offense occurring in or on the licensed premises
of a crime listed in subsection 7-12-5.B.8.a of this chapter, for which a
conviction has been obtained, and the person or persons were employees
of the sexually oriented business at the time the offenses were committed;
7. A licensee or operator has knowingly allowed any act of sexual
intercourse, sodomy, oral copulation, masturbation, or sexual contact to
occur in or on the licensed premises. The term "sexual contact" shall have
the meaning as it is defined in Minnesota statutes section 609.341,
subdivision 11(b). This subsection shall not apply to an adult motel, unless
the licensee knowingly allowed sexual activities to occur either: a) in
exchange for money, or b) in a public place or within public view; or
8. A licensee is delinquent in payment to the city for ad valorem taxes, local
lodging tax, or other taxes or fees related to the sexually oriented
business.
C. Appeal of Conviction: The fact that a conviction is being appealed shall have no
effect on the revocation of the license.
D. Exception: Subsection B.7 of this section does not apply to adult motels as
grounds for revoking the license unless the licensee or employee knowingly
allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or
sexual contact to occur in a public place or within public view.
E. Provisional License: When, after the notice and hearing procedure described in
section 7-12-11 of this chapter, the city administrator revokes a license, the
revocation shall continue for one year and the licensee shall not be issued a
sexually oriented business license for one year from the date revocation became
effective, provided that, if the conditions of subsection 7-12-11.13 of this chapter
are met, a provisional license shall be granted pursuant to that section. If,
subsequent to revocation, the city administrator finds that the, basis for the
revocation has been corrected or abated, the applicant may be granted a license
if at least ninety (90) days have elapsed since the date the revocation became
effective. If the license was revoked under subsection B7 of this section, an
applicant may not be granted another license until the appropriate number of
years required under subsection 7-12-5.B.8.b of this chapter have elapsed.
7-12-11: HEARING AND APPEAL:
A. Notification: If the city administrator determines that facts exist for denial,
suspension, or revocation of a license under this chapter, the city administrator
shall notify the applicant or licensee ("respondent") in writing of the intent to
deny, suspend, or revoke the license, including the grounds therefore, by
personal delivery or by certified mail. The notification shall be directed to the
most current business address on file with the city administrator. Within five (5)
working days of receipt of such notice, the respondent may provide to the city
administrator, in writing, a response that shall include a statement of reasons
why the license or permit should not be denied, suspended, or revoked. Within
three (3) days of the receipt of respondent's written response, the city
administrator shall notify respondent in writing of the hearing date on
respondent's denial, suspension, or revocation proceeding.
B. Appeal and Hearing: Within ten (10) working days of the receipt of respondent's
written response, the city shall conduct a hearing on respondent's appeal of the
city administrator's decision. The city council may appoint a committee of the
council or an independent hearing officer to hear the matter, report findings of
fact and a recommendation for disposition to the council. Hearings on the appeal
shall be open to the public and the licensee or applicant shall have the right to
appear and be represented by legal counsel and to offer evidence in its behalf. At
the conclusion of the hearing, the city council shall make a final decision. If a
response is not received by the city in the time stated or, if after the hearing, the
city finds that grounds as specified in this chapter exist for denial, suspension, or
revocation, then such denial, suspension, or revocation shall become final five
(5) days after the city sends, by certified mail, written notice that the license has
been denied, suspended, or revoked. Such notice shall include a statement
advising the applicant or licensee of the right to appeal such decision to a court
of competent jurisdiction.
If the city council finds that no grounds exist for denial, suspension, or revocation
of a license, then within five (5) days after the hearing, the city administrator shall
withdraw the intent to deny, suspend, or revoke the license, and shall so notify
the respondent in writing by certified mail of such action and shall
contemporaneously issue the license.
C. Judicial Review: Any decision of the city council shall be a final appealable order
and the applicant or licensee ("aggrieved party") may seek prompt judicial review
of such administrative action in any court of competent jurisdiction.
D. Stay of Decision: The filing of an appeal stays the action of the city administrator
in requiring, denying, suspending or revoking a license until sixty (60) days after
a final decision by the city council, to provide the aggrieved party sufficient time
to appeal the city council's decision to a court of competent jurisdiction. If the
aggrieved party appeals the city council's decision within the sixty (60) days
provided, the stay shall be extended until a final judicial decision is rendered in
the matter.
E. Provisional License: Upon the filing of any court action to appeal, challenge,
restrain, or otherwise enjoin the city's enforcement of the denial, suspension,
revocation, or licensure requirement, the city shall immediately issue the
aggrieved party a provisional license. The provisional license shall allow the
aggrieved party to continue operation of the sexually oriented business or to
continue employment as a sexually oriented employee, as the case may be, and
will expire upon the court's entry of a judgment on the aggrieved party's action to
appeal, challenge, restrain, or otherwise enjoin the city's enforcement.
F. Additional Requirements: The city council may condition denial, suspension,
revocation, or nonrenewal of a license upon appropriate terms and conditions.
7-12-12: TRANSFER OF LICENSE: A licensee shall not transfer his or her license to
another, nor shall a licensee operate a sexually oriented business under the authority of
a license at any place other than the address designated in the application.
7-12-13: ADDITIONAL REGULATIONS
A. Escort Agencies:
1. An escort agency shall not employ any person under the age of eighteen
(18) years.
2. A person commits an offense if he or she acts as an escort or agrees to
act as an escort for any person under the age of eighteen (18) years.
B. Nude Model Studios:
A nude model studio shall not employ any person under the age of
eighteen (18) years.
2. A person commits an offense if he or she appears in a state of nudity or
knowingly allows another to appear in a state of nudity in an area of a
nude model studio premises which can be viewed from the public right of
way.
C. Adult Theaters and Adult Motion Picture Theaters:
A person commits an offense if he or she knowingly allows a person under
the age of eighteen (18) years to appear in a state of nudity in or on the
premises of an adult theater or adult motion picture theater.
2. It is a defense to prosecution under subsection A of this section if the
person under eighteen (18) years was in a restroom not open to public
view or persons of the opposite sex.
D. Adult Motels:
Evidence that a sleeping room in a hotel, motel, or similar commercial
establishment has been rented and vacated two (2) or more times in a
period of time that is less than ten (10) hours creates a rebuttable
presumption that the establishment is an "adult motel" as that term is
defined in this chapter.
2. A person commits an offense if, as the person in control of a sleeping
room in a hotel, motel, or similar commercial establishment that does not
have a sexually oriented business license, he or she rents or subrents a
sleeping room to a person and, within ten (10) hours from the time the
room is rented, he or she rents or subrents the same sleeping room again.
E. Exhibition of Sexually Explicit Films, Videos, or Live Entertainment in Video
Rooms:
Requirements: A person who operates or causes to be operated a
sexually oriented business, other than an adult motel, which exhibits on
the premises in a viewing room of less than one hundred fifty (150) square
feet of floor space, a film, videocassette, live entertainment or other video
reproduction which depicts specified sexual activities or specified
anatomical areas, shall comply with the following requirements:
a. Upon application for a sexually oriented business license, the
application shall be accompanied by a diagram of the premises
showing a plan thereof specifying the location of one or more
manager's stations and the location of all overhead lighting fixtures
and designating any portion of the premises in which patrons will
not be permitted. A manager's station may not exceed thirty two
(32) square feet of floor area. The diagram shall also designate the
place at which the permit will be conspicuously posted, if granted. A
professionally prepared diagram in the nature of an engineer's or
architect's blueprint shall not be required; however, each diagram
should be oriented to the north or to some designated street or
object and should be drawn to a designated scale or with marked
dimensions sufficient to show the various internal dimensions of all
areas of the interior of the premises to an accuracy of plus or minus
six inches (±6"). The city administrator may waive the foregoing
diagram for renewal applications if the applicant adopts a diagram
that was previously submitted and certifies that the configuration of
the premises has not been altered since it was prepared.
b. The application shall be sworn to be true and correct by the
applicant.
C. No alteration in the configuration or location of a manager's station
may be made without the prior approval of the city administrator or
his or her designee.
d. It is the duty of the owners and operator of the premises to ensure
that at least one licensed employee is on duty and situated in each
manager's station at all times that any patron is present inside the
premises.
e. The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager's station of
every area of the premises to which any patron is permitted access
for any purpose excluding restrooms. Restrooms may not contain
video reproduction equipment. If the premises has two (2) or more
manager's stations designated, then the interior of the premises
shall be configured in such a manner that there is an unobstructed
view of each area of the premises to which any patron is permitted
access for any purpose from at least one of the manager's stations.
The view required in this subsection must be by direct line of sight
from the manager's station.
f. It shall be the duty of the owners and operator, and it shall also be
the duty of any agents and employees present in the premises to
ensure that the view area specified in subsection A5 of this section
remains unobstructed by any doors, walls, merchandise, display
racks or other materials at all times that any patron is present in the
premises and to ensure that no patron is permitted access to any
area of the premises which has been designated as an area in
which patrons will not be permitted in the application filed pursuant
to subsection Al of this section.
g. The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access at an illumination of not less than one (1.0) foot-
candle as measured at the floor level.
h. It shall be the duty of the licensee, owners and operator and it shall
also be the duty of any agents and employees present in the
premises to ensure that the illumination described above, is
maintained at all times that any patron is present in the premises.
i. No viewing room may be occupied by more than one person at any
time.
j. No licensee shall allow openings of any kind to exist between
viewing rooms or booths.
k. No person shall make or attempt to make an opening of any kind
between viewing booths or rooms.
I. The licensee shall, during each business day, regularly inspect the
walls between the viewing booths to determine if any openings or
holes exist and shall cover or repair all openings or holes with
twenty four (24) hours.
M. The licensee shall cause all floor coverings in viewing booths to be
nonporous, easily cleanable surfaces, with no rugs or carpeting.
n. The licensee shall cause all wall surfaces and ceiling surfaces in
viewing booths to be constructed of, or permanently covered by,
nonporous, easily cleanable material. No wood, plywood,
composition board, or other porous material shall be used within
forty eight inches (48") of the floor.
2. Misdemeanor: A person having a duty under subsections 1.a through 1.n
of this section commits a misdemeanor if the person knowingly fails to
fulfill that duty.
F. Conduct within an Adult Use Business:
Distance Requirement For Live Entertainment: All performers, dancers,
and persons appearing in a seminude condition or providing live
entertainment distinguished or characterized by an emphasis on matters
depicting, describing, or relating to specified sexual activities or specified
anatomical areas in the licensed facility or in areas adjoining the licensed
facility where such entertainment can be seen by patrons of the licensed
facility shall remain at all times a minimum distance of six feet (6') from all
patrons, customers, or spectators and shall dance or provide such
entertainment on a platform intended for that purpose, which shall be
raised at least two feet (2') from the level of the floor on which patrons or
spectators are located.
2. Interaction With Patrons: No dancer, performer, or person while seminude
or providing live entertainment distinguished or characterized by an
emphasis on matters depicting, describing, or relating to specified sexual
activities or specified anatomical areas in the licensed facility or in areas
adjoining the licensed facility where the entertainment can be seen by
patrons of the licensed facility shall knowingly or intentionally touch any
spectator or patron or the clothing of any spectator or patron.
3. Gratuity Prohibition: No customers, spectator, or patron of a licensed
facility shall directly pay or give any gratuity to any dancer or performer in
a seminude condition and no dancer or performer in a seminude condition
shall solicit or receive any pay or gratuity directly from any patron or
spectator.
4. Hours of Operation: No sexually oriented business, except for an adult
motel, may remain open at any time between the hours of one o'clock
(1:00) A.M. and eight o'clock (8:00) A.M. on weekdays and Saturdays, and
one o'clock (1:00) A.M. and twelve o'clock (12:00) noon on Sundays.
G. Public Nudity: It shall be a misdemeanor for a person to knowingly and
intentionally, in a sexually oriented business, appear in a state of nudity or
engage in specified sexual activities.
7-12-14: PROHIBITION AGAINST CHILDREN IN AN ADULT USE BUSINESS: No
licensee, operator or employee shall knowingly allow a person under the age of
eighteen (18) years on the premises of a sexually oriented business.
7-12-15: EXEMPTIONS: It is a defense to prosecution under this chapter that a person
appearing in a state of nudity did so in a modeling class operated:
A. By a proprietary school licensed by the state of Minnesota; a college, junior
college, or university supported entirely or partly by taxation;
B. By a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior college, or
university supported entirely or partly by taxation; or
C. In a structure:
Which has no sign visible from the exterior of the structure and no other
advertising that indicates a nude person is available for viewing; and
2. Where in order to participate in a class a student must enroll at least three
(3) days in advance of the class; and
3. Where no more than one nude model is on the premises at any one time.
7-12-16: ENFORCEMENT: A person who operates or causes to be operated a sexually
oriented business without a valid license or in violation of this chapter is subject
to a suit for injunction as well as prosecution for criminal violations. Any person
violating a provision of this chapter, upon conviction, is guilty of a misdemeanor.
Each day a sexually oriented business so operates is a separate offense or
violation.
3-12-17: SEVERABILITY: If any section, sentence, clause or phrase of this chapter is for
any reason held to be invalid, such decision shall not affect the validity of the
remaining portions of this chapter. The city council hereby declares that it would
have adopted the chapter and each subsection, sentence, clause, or phrase
thereof, irrespective of the fact that any one or more sections, subsections,
sentences, clauses or phrases be declared invalid.
Section 2. This ordinance shall be effective immediately upon its passage and
publication.
MOTION BY:
SECOND BY:
ALL IN FAVOR:
THOSE OPPOSED:
ADOPTED this 25th day of June, 2007 by the City Council of the City of Otsego,
Minnesota.
CITY OF OTSEGO
Larry Fournier, Mayor
ATTEST:
Judy Hudson, City Clerk/Zoning Administrator