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Home My WebLink About20080915 - VII-2VII-2 Memo To: Mayor Hicks and City Council From: John Hinzman, Planning Director Date: September 15, 2008 Subject: Public Hearing: City Code Amendment #2007-52 -Adult Uses REQUEST The City Council is asked to hold a public hearing and consider 2"d reading of an ordinance to amend Hastings City Code Chapter 114 and 155.32 regarding adult uses. The City Council ordered a public hearing and considered first reading at the September 2, 2008 meeting. PLANNING COMMISSION REVIEW The Planning Commission voted 6-0 to recommend approval of the proposed amendment at the August 25, 2008 meeting. One person spoke during the public hearing. The Commission recommended the following changes: • Prohibit the sale of alcohol in businesses immediately adjacent and in view of an adult use. • Establish a bi-annual review of the ordinance. • Clarify language relating to disqualifications for certain sex offenses. Please see the attached minutes for further information. ATTACHMENTS • Draft Ordinance Amendment -Chapter 114 • Draft Ordinance Amendment -Chapter 155.32 • C-4 Zoning Maps Depicting Setbacks • Planning Committee Recommendations • Memorandum -City Attorney Dan Fluegel ~ April 3, 2008 • Planning Committee Minutes ~ June 19, 2008 • Planning Committee Minutes ~ May 29, 2008 • Planning Commission Minutes ~ August 25, 2008 PLANNING COMMITTEE OF CITY COUNCIL On August 4, 2008 the City Council accepted the report of the Planning Committee of City Council and directed the Planning Commission to review ordinance changes. The Committee was formed in April 2008 and was directed to examine changes to the adult use ordinance. The Committee met three times between May and July. Citizens United, a group consisting of interested Hastings residents attended the meetings and provided input. The Planning Committee recommends the following: • The Hastings Industrial Park should not be rezoned to allow adult uses. Prohibiting adult uses city wide is not recommended; the risk of losing a legal challenge is too great. • Doing nothing is not an option; changes to the adult use ordinance are necessary. Regulations within the existing C-4 Zoning District must be strengthened. • The City can further regulate the business operations of adult uses while preserving First Amendment free speech protections. ADULT USE ORDINANCE CHANGES Components of adult use ordinances from various Minnesota cities were reviewed. Selection was based on League of Minnesota Cities recommendations and included regulations that had survived legal challenge. Please see attachment for the Committee's recommendations. BACKGROUND Changes to the adult use ordinance have been under consideration over the past year. The following has taken place: • Potential Adult Use Inquiry -.November, 2006. The City of Hastings received questions from a potential adult use operator within a vacant storefront of Westview Shopping Center, a C-4 zoned property. Under City Code, adult uses are allowed by a special use permit only within the C-4 -Regional Shopping Center District. • Adult Use Moratorium Enacted -December, 2006. The City Council enacted a one year moratorium on the issuance of special use permits for adult uses. Staff is directed to research the issue and review ordinance changes with the Planning Commission. • Planning Commission Review -Fall 2007 -Spring 2008. The Planning Commission me_t several times to review potential changes to the City Code regardirig adult uses. Eliminating adult uses from the C-4 district and adding them to the I-2 -Industrial Park Storage\Service District is recommended. Industrial Park Rezoning -March, 2008. The Planning Commission conducted a public hearing to consider amending the City Code to eliminate adult uses from the C-4 district and add them to the I-2 District. The public hearing was attended by approximately 40 individuals. Those in attendance did not support the changes. The Planning Commission tabled action on the ordinance change and directed staff to recommend adoption of a moratorium to continue research and discussion. Adult Use Moratorium Adopted -April, 2008. The City council adopts a new moratorium ordinance establishing a one year prohibition on issuance of special use permits for adult uses in the C-4 district. Adult Use Public Meeting -April, 2008. The City held a public meeting to review the legal obligations for allowing adult uses. Approximately 60 people attended the meeting. Those in attendance questioned the need to allow adult uses anywhere within the City. Referred to Planning Committee of City Council -May, 2008. Mayor Hicks directed the Planning Committee of City Council to review potential ordinance changes and report back to the City Council. EXISTING CITY ORDINANCE Hastings City Code Chapters 114 and 155.32 regulate adult uses within the City of Hastings. Adult Uses are allowed within the C-4 -Regional Shopping Center District upon approval of a Special Use Permit by the City Council. The C-4 District encompasses highly visible commercial areas along Highway 55 including Cub, Wal- Mart, Target, and Westview Mall, as well as Coborn's Grocery Store on Highway 316. Adult uses are not allowed in any other districts within the City. Please see attached ordinance sections and zoning map for further information. LEGAL AUTHORITY Legal authority in regulating adult uses comes from numerous sources including the First Amendment to the Constitution of the United States, federal and state judicial rulings, state statutes and other local ordinances including: • First Amendment Protection The Supreme Court of the Unites States has determined that many forms of adult uses constitute expressive speech or conduct which is subject to free speech protections under the First Amendment. When government regulations are enacted for the purpose of restraining speech or expressive conduct based on its content, those restrictions are presumed to violate the First Amendment. Regulations that prohibit constitutionally protected adult uses based on the content of the speech (or activity) will almost always-be found unconstitutional and unenforceable. • Minnesota Statute 617.242 -Adult Entertainment Establishments State Statute 617.242 became effective in May, 2006 and established certain restrictions for adult entertainment establishments. The law allows cities to entirely prohibit adult entertainment establishments if a similar establishment currently operates within 50 miles. The statute was challenged in federal court. The court issued an injunction prohibiting enforcement of the statute's provisions. Although the opinion does -not in itself strike down the statute altogether and the statute has not since been repealed, there are serious doubts about the statute's constitutionality. The City Attorney and League of Minnesota Cities Insurance Trust both urge cities not to rely on the statute. • Distinction Between Obscene Acts and Constitutionally Protected Adult Uses Activities and materials which fall within the definition of obscenity can be completely prohibited and are not subject to First Amendment protections. Minnesota State Statutes 617.241 makes it a crime to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute or attempt to distribute any obscene material or to produce, present, participate in, or direct an obscene performance. Please see City Attorney Dan Fluegel's April 3, 2008 Memorandum for further information. Proposed Adult Use Ordinance Changes Planning Committee of City Council • Accessory Adult Use o <= 10% of floor area (350SgFt max) o <= 20% of gross receipts o Do not involve any activity except sale or rental of merchandise o Separate room in clear view of manager o No internal or external advertising of materials or products • Hours of operation o Prohibited from 1 am to Sam Monday through Saturday _ _ _ o__Prohibited from 1 am and 12 noon on Sunday. o (Further restrictions on hours were reviewed and not recommended based on increased difficulty in proving harmful secondary affects different Phan a liquor license.) • Off Site Viewing o Must prevent off site viewing of materials and activities • Signage o No message or images which identifies sexual activities or anatomical areas o No merchandise, photos or pictures of products o No window displays o Activities and products cannot be visible outside • Liquor o Sale and consumption prohibited • Nudity o Full nudity is only allowed in a modeling class which meets the requirements • Layout o Customer entrances must be visible from right-of-way o Must be designed so management must be able to see patrons at all time o Illumination must be adequate to observe location and activities • Contact o No soliciting, payments, exchange of gratuity, exchange of money or any other items between performers, patrons, or others involved in live entertainment o No fondling, caressing, or contact of any type between performers and patrons 0 10' between performer and patron o Performer must be on a stage/ platform elevated at least 2' Booths o Booths, partitions, and curtains are prohibited • Operators License o Required for all owners and spouses • Ownership description • Prior names • Current and prior addresses • All businesses within 2 yrs • Convictions of a felony, crime or violation or ordinance (except traffic) • Copy of partnership agreement • Name of manger, proprietors and agents • Site plan • Floor plan • Revocation of previous adult licenses • Transfer of license prohibited o Denial if owners or spouse: • Under 21 • Non proprietor of business _ Violation of adult ordinance in last year • Inadequate info • False info • Convictions for gross misdemeanor or felony related to sex offenses, obscenity or adult establishments • Denial, suspension, or revocation of license in other MN City in last 12 mo. • Not zoned correctly • Current license as a tanning, tattoo, pawnshop, liquor establishment, or therapeutic massage • Failure to pay fee • Not US Citizen 0 60 day suspension ^ Violation of ordinance or state law ^ Sale of alcohol ^ Refusal of inspection ^ Gambling ^ Delinquent taxes ^ Delinquent fees o Revocation ^ Suspend in last 14 months ^ False info ^ Use or sale of controlled substances ^ Prostitution ^ Illegal distribution of obscene materials ^ Operation during suspension ^ Certain convictions ^ Two or more certain offences within a 12 month period ^ Allowed specified sexual activities o Fees ^ $2,000 annually plus escrow for costs incurred to research and perform background checks Employee license o Proof of age o Background check o fee o License revoked if caused an operator license to be suspended or revoked Where allowable o C-4 Regional Shopping center • Setbacks • 500' from residentially zoned property • 500' from church, school, library, park/ public recreation (750 foot setback was reviewed; available land would not meet the five percent availability or commercial land) • 500' from another adult use CITY OF HASTINGS, MINNESOTA ORDINANCE NO. ,THIRD SERIES AN ORDINANCE OF THE CITY OF HASTINGS, MINNESOTA AMENDING CHAPTER 114 OF THE HASTINGS CITY CODE PERTAINING TO MASSAGE AND ADULT USES AND AMENDING PROVISIONS OF THE ZONING CODE CHAPTER I SS PERTAINING TO ADULT USES BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HASTINGS AS FOLLOWS: Chapter 114 of the Hastings City Code is hereby amended and Sections 114.20 through 114.27, inclusive, are deleted in their entirety and replaced as follows: Section 114.20 Authority, Purpose and Intent. (A) Authori .The United States Supreme Court has ruled that sexually-explicit speech, including nude dancing, is entitled to some level of protection under the First Amendment to the United States Constitution. As a result, municipalities may not ban adult establishments. However, the Supreme Court has ruled that cities may adopt content-neutral zoning and licensing provisions to regulate and control the adverse _ secondary effects of adult establishments on the community. (B) Findings of the City Council. The Minnesota Attorney General's Office and the cities of St. Paul, Alexandria, and Rochester, Minnesota, as well as St. Croix County, Wisconsin have conducted studies of the impact of adult establishments on their respective communities. These studies have concluded that adult establishments have an adverse impact on the surrounding neighborhoods. Those impacts include increased crime rates, lower property values, increased transiency, neighborhood blight and potential health risks. The City Council of the City of Hastings is relying on the studies, many of which were conducted in larger cities, recognizing that the same or similar adverse impacts could occur in a smaller city such as the City of Hastings. The findings are based on the experiences of other cities where such businesses have located. Based on these studies, the City Council makes the following findings regarding the need to regulate adult establishments: 1. Adult establishments have adverse secondary impacts of the types set forth above. 2. The adverse impacts caused by adult establishments tend to diminish if adult establishments are governed by location and licensing requirements. 3. The city may adopt regulations to promote the public health, safety, morals and general welfare. 4. The public health, safety, morals and general welfare will be promoted by regulations governing adult establishments. 5. Adult establishments can contribute to increased criminal activity and police calls in the area in which they are located, taxing law enforcement services. 6. Adult establishments can be used as fronts for prostitution and other criminal activity. The experience of other cities indicates that the proper management and operation of such businesses can, however, minimize this risk. 7. Adult establishments can cause or contribute to public health problems by the presence of live adult entertainment in conjunction with food and/or drink on the same premises. 8. Many members of the public perceive areas within which adult establishments are located as less safe than other areas that do not have such uses. 9. The adverse impact that adult establishments have on the surrounding area diminishes as the distance from the adult establishments increases. 10. A reasonable licensing procedure is an appropriate mechanism to place the burden of reasonable regulation on the owners, operators, employees and performers of the adult establishment. A licensing procedure will place an incentive on the operators to see that the adult establishment is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the City. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually- oriented business, fully in possession and control of the premises and activities occurring therein. 11. The fact that an applicant for an adult use license has been convicted of asexually-related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this Ordinance. 12. The bamng of individuals with sexually-related criminal convictions from the management and operation of adult establishments for a period of years serves as a deterrent to and prevents conduct which may lead to the transmission of sexually- transmitted diseases. 13. The general health, safety, and welfare of the community is promoted by prohibiting - -nudity in adult-establishments. This prohibition is based on concerns of potential adverse effects such as prostitution, the transmission ofsexually-transmitted diseases, exposure to minors, obscenity and unsanitary conditions in public areas. 14. Small cities experience many of the same adverse impacts of adult establishments present in larger communities. (C) Pu~ose. It is the purpose of this Ordinance to regulate adult establishments to promote the health, safety, morals, and general welfare of the citizens of the City and to establish reasonable and uniform regulations to: 1. Prevent criminal activity within the City; 2. Allow for efficient and effective law enforcement services in the City; 3. Prevent deterioration of neighborhoods and its consequences adverse effect on real estate values of properties within the neighborhood. 4. Locate adult establishments away from residential areas, schools, parks and places of worship; 5. Provide acontent-neutral, objective, licensing scheme that allows the City to monitor adult establishments for violations of building and health codes; and 6. Prevent ownership of adult establishments by persons with prior, relevant criminal convictions. (D) Reasonable Op ortunity. The provisions of this Ordinance do not prohibit adult establishments from having a reasonable opportunity to locate in the city. This Ordinance is not for the purpose of, nor is it intended to, impose a limitation or restriction on the content of any communicative materials, including adult-oriented materials. Similarly, it is neither the intent nor effect of this Ordinance to restrict or deny access by adults to adult-oriented materials protected by the First Amendment or to deny access by distributors or exhibitors ofadult-oriented entertainment to their intended market. Section 114.21 Definitions. For the purposes of this Ordinance the terms defined in this section have the meanings given them. (A) "Adult Establishment" means: 1. any business that devotes a substantial or significant portion of its inventory, stock in trade, or publicly-displayed merchandise, or devotes a substantial or significant portion of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to, or derives a substantial or significant portion of its gross revenues from items, merchandise, devices or other materials distinguished or characterized by an emphasis on material depicting, exposing, simulating, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas; or 2. any business that engages in any Adult Use as defined in section 114.21(B). (B) "Adult Use" means any of the activities and businesses described below: 1. "Adult Body Painting Studio." An establishment or business that provides the service of applying paint, ink, or other substance, whether transparent ornon-transparent, to the body of a patron when the person is nude. 2. "Adult Bookstore." An establishment or business used for the barter, rental, or sale of items consisting of printed matter, pictures, slides, records, audio tape, videotape, movies, or motion picture film if a substantial or significant portion of its inventory, stock in trade, orpublicly-displayed merchandise consists of, or if a substantial or significant portion of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) is devoted to, or if a substantial or significant portion o~ its -gross revenues is derived from items, merchandise, devices or materials that are distinguished or characterized by an emphasis on material depicting, exposing, simulating, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas. 3. "Adult Cabaret." A business or establishment that provides dancing or other live entertainment distinguished or characterized by an emphasis on: (a) the depiction of nudity, Specified Sexual Activities or Specified Anatomical Areas; or (b) the presentation, display, or depiction of matter that seeks to evoke, arouse, or excite sexual or erotic feelings or desire. 4. "Adult Companionship Establishment." A business or establishment that provides the service of engaging or listening to conversation, talk, or discussion distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. "Adult Conversation/Rap Parlor." A business or establishment that provides the services of engaging or listening to conversation, talk, or discussion distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. "Adult Health/Sport Club." A health/sport club that is distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. "Adult Hotel or Motel." A hotel or motel that presents material distinguished or characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas. "Adult Massage Parlor/Health Club." A massage parlor or health club that provides massage services distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. "Adult Modeling Studio." A business or establishment that provides live models who, with the intent of providing sexual stimulation or sexual gratification, engage in Specified Sexual Activities or display Specified Anatomical Areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted. 10. "Adult Motion Picture Arcade." Any place to which the public is permitted or invited where coin or slug-operated or electronically, electrically, or mechanically controlled or operated still or motion picture machines, projectors, or other image-producing devices are used to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing Specified Sexual Activities or Specified Anatomical Areas. 11. "Adult Motion Picture Theater." A motion picture theater that as a prevailing practice presents material distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas for observation by patrons. 12. "Adult Novelty Business." An establishment or business that devotes a substantial or significant portion of its inventory, stock in trade, orpublicly-displayed merchandise or devotes a substantial or significant portion of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to, or derives a substantial or significant portion of its gross revenues from items, merchandise, or devices that are distinguished or characterized by an emphasis of material depicting or describing Specified Sexual Activities or Specified Anatomical Areas, or items of merchandise or devises that simulate Specified Sexual Activities or Specified Anatomical Areas, or are designed for sexual stimulation. 13. "Adult Sauna." A sauna that provides a steam bath or heat bathing room used for the purpose of bathing, relaxation, or reducing, if the service provided by the .sauna is - distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. 14. "Adult Steam Room/Bathhouse Facility." A building or portion of a building used for providing a steam bath or heat bathing room used for the purpose of pleasure, bathing, relaxation, or reducing, if the service provided by the steam room bathhouse facility is distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. (C) "Nude" or "Specified Anatomical Areas" means: 1. Less than completely and opaquely covered human genitals, pubic regions, buttocks, anuses, or female breasts below a point immediately above the top of the areola; and 2. Human male genitals in a discernibly turgid state, even if completely opaquely covered. (D) "Specified Sexual Activities" means: 1. An act of sexual intercourse, normal or perverted, actual or simulated, including genital- genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal; 2. Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing costume or the condition of being fettered, bound, or otherwise physically restricted on the part of one so clothed; 3. Masturbation or lewd exhibitions of the genitals including any explicit, close-up representation of a human genital organ clothed or unclothed; and 4. Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or breasts of a female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification. (E) "Substantial or Significant Portion" means 10% or more of floor area or 350 square feet, whichever is less, or 20% of gross receipts. (F) "Premises" means the real property and all building and structures located on the real property. 4 (G) "Accessory Adult Establishment" means any business which maintains any inventory, stock in trade, orpublicly-displayed merchandise, or devotes any portion of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to, or derives any portion of its gross revenues from items, merchandise, devices or other materials distinguished or characterized by an emphasis on material depicting, exposing, simulating, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas, and which is not an Adult Establishment as defined in 114.21(A) above. Section 114.22 Application of this Ordinance. (A) Other Laws. No Adult Establishment or Accessory Adult Establishment shall engage in any activity or conduct or permit any other person to engage in any activity or conduct in the establishment that is prohibited by an ordinance of the City of Hastings, the laws of the State of Minnesota, or the laws of the United States of America. Nothing in this Ordinance shall be construed as authorizing or permitting conduct that is prohibited or regulated by other statutes or ordinances, including but not limited to statutes or ordinances prohibiting the exhibition, sale, or distribution of specified materials to minors. (B) Existing Adult Establishments. Except as otherwise provided in this Ordinance, existing Adult Establishments and Accessory Adult Establishments must comply with all - - -requirements of this Ordinance immediately upon its effective date. - Section 114.23 Hours of Operation. No Adult Establishment shall be open to the public from the hours of 1:00 a.m. until 8:00 a.m. weekdays and Saturdays, and from the hours of 1:00 a.m. to 12:00 p.m. (noon) on Sundays. Section 114.24 Operation. Adult Establishments and Accessory Adult Establishments are subject to the following business regulations. (A) Off-site Viewing. An Adult Establishment or Accessory Adult Establishment must prevent off-site viewing of its merchandise or any materials depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas" by any visual or auditory media, including display, decoration, sign, show window, sound transmission or other means. (B) Prohibition on Liquor. 1. Adult Establishments shall not sell or dispense intoxicating liquor or 3.2 percent malt liquor nor shall the Adult Establishment be located in a building or on a premises that contains a business that sells or dispenses intoxicating liquor or 3.2 percent malt liquor. 2. The sale and consumption of alcohol is prohibited on the premises of an Adult Establishment, including, but not limited to, any parking areas or lots that are owned or leased by the Adult Establishment or its owner, or used by patrons when they are at the Adult Establishment. 3. No Adult Establishments may be operated in a building or structure lying immediately adjacent to, or having a common wall with, a business that sells or dispenses intoxicating liquor or 3.2 percent malt liquor. (C) Entrances. All entrances to an Adult Establishment, with the exception of emergency fire exits that are not useable by patrons to enter the business, shall be visible from a public right-of--way. (D) Layout. The layout of any display areas shall be designed so that the management of the Adult Establishment and any law enforcement personnel inside the store can observe all patrons while they have access to any merchandise offered for sale or viewing including but not limited to books, magazines, photographs, video tapes, or any other materials, or any live dancers or entertainers. Booths, partitions and curtains which interfere with such observations are prohibited. Accessory Adult Establishments must maintain all inventories of items, merchandise, devices or other materials distinguished or characterized by an emphasis on material depicting, exposing, simulating, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas in a separate room in clear view of management personnel to prevent access by minors. (E) Illumination. Illumination of the premises exterior of Adult Establishments shall be adequate to observe the location and activities of all persons on the exterior premises. (F) Si ns. Signs for Adult Establishments shall not contain representational depiction of an adult nature or graphic descriptions of the adult theme of the operation. Interior and exterior advertising of Accessory Adult Establishments is prohibited. An Adult Establishment must prominently display at the entrance of the business, or no more than two feet from the door-opening device of the establishment, a sign that states "This business sells or displays materials containing adult themes. Persons under eighteen (18) years of age shall not enter." The sign must contain letters between three-eighths (3/8) inch and two (2) inches in height. (C-} Access by Minors-. No minor shall be permitted-on the premises of an Adult Establishment. Adult goods or materials may not be offered, sold, transferred, conveyed, given or bartered to a minor, or displayed in a fashion that allows them to be viewed by a minor, whether or not the minor is on the licensed premises. (H) Additional Conditions for Adult Cabarets. The following additional conditions apply to adult cabarets: 1. No dancer, live entertainer or performer shall be under 18 years old. 2. All dancers, live entertainers and performers must be licensed pursuant to this Ordinance. 3. All dancing or live entertainment shall occur on a platform intended for that purpose and which is raised at least two feet from the level of the floor and which provides at least 10 feet of separation between the patrons and all dancers, live entertainers and performers. 4. No dancer or performer shall fondle, caress, or touch any patron or other dancer or performer and no patron shall fondle, caress, or touch any dancer or performer. 5. All soliciting, payment and exchange of gratuity, exchange of money or any other items between performers, patrons, or others involved in live entertainment is prohibited. (I) No Nudity. No person maybe nude on the premises of any Adult Establishment or Accessory Adult Establishment. Section 114.25 License Required. (A) License Required -Adult Establishment or Accessory Adult Establishment. It is unlawful for any person or entity to own, lease, rent, manage or operate an Adult Establishment or Accessory Adult Establishment without a valid license issued by the City pursuant to this Ordinance. (B) License Required -Dancer, Live Entertainer or Performer. It is unlawful for any person to perform as a dancer or live entertainer within an Adult Establishment without a valid license issued by the City pursuant to this Ordinance. (C) Existing Businesses. Within ten (10) working days of the effective date of this Ordinance, any existing Adult Establishment or Accessory Adult Establishment must 6 apply for a license from the City. Failure to apply for a license is a violation of this Ordinance and is subject to penalty under Section 114.36. An existing Adult Establishment or Accessory Adult Establishment may continue to operate pending review of the license application by the City. Section 114.26 License Applications. An application for an Adult Establishment or Accessory Adult Establishment license must be made on a form provided by the City. The completed application must contain the information in (A) to (E) below: (A) All applicants. For all applicants:. 1. Whether the applicant is a natural person, corporation, partnership, or other form of organization. 2. The legal description of the premises to be licensed, along with a sketch or diagram showing the floor plan of the premises. The floor plan of the premises shall detail all internal operations and activities, including a statement of the total floor space occupied by the business. The floor plan need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. 3. The name and street of the business. If the business is to be conducted under a designated name, or style other than the name of the applicant, a certified copy of the certificate required by Minn. Stat. §333.01 shall be submitted. 4: - Whether the applicant has- had a previous Adult Establishment or Accessory Adult Establishment license suspended or revoked. (B) Applicants who are natural persons. If the applicant is a natural person: 1. The name, place, and date of birth, street, city and mailing address, and phone number of the applicant. 2. Whether the applicant has ever used or has been known by a name other than the applicant's name, and if so, the name or names used and information concerning dates and places where used. 3. The street and city addresses at which the applicant has lived during the preceding two years. 4. The type, name, and location of every business or occupation in which the applicant has been engaged during the preceding two years and name(s) and address(es) of the applicant's employer(s) and partner(s), if any, for the preceding two years. 5. Whether the applicant has ever been convicted of a gross misdemeanor or felony or any crime relating to sex offenses, obscenity offenses, or Adult Establishments. (C) Applicants that are partnerships. If the applicant is a partnership: 1. The name(s) and address(es) of the partnership, the name(s) and address(es) of all partners and all of the information concerning each partner that is required of applicants in paragraph (B) of this section. 2. Whether the partnership is general or limited. 3. A true copy of the partnership agreement shall be submitted with the application. If the partnership is required to file a certificate as to a trade name pursuant to Minn. Stat. §333.01, a certified copy of the certificate shall be attached to the application. (D) Corporate or other ap lip cants. If the applicant is a corporation or other organization: 1. The name of the corporation or business form, and if incorporated, the date and state of incorporation. A true copy of the Certificate of Incorporation, Articles of Incorporation or Association Agreement and Bylaws shall be attached to the application. If the applicant is a foreign 7 corporation, a Certificate of Authority as required by Minn. Stat. §303.06, shall be attached. If the entity is a limited liability company, then true and accurate copies of the Articles of Organization and any Membership Agreements shall be attached to the application. 3. The name of the manager(s), proprietor(s), or other agent(s) in charge of the business and all of the information concerning each manager, proprietor or agent that is required of the applicants in paragraph (B) of this section. 4. Accurate and complete business records showing the names, addresses, and dates of birth of all officers, directors and controlling stockholders for the business. 5. The name of the registered corporate agent and the address of the registered office for service of process. (E) Changes in information provided on the application. Changes in the information provided on the application or provided during the investigation must be brought to the attention of the City by the applicant or licensee. If such a change takes place during the investigation, it must be reported to the city clerk in writing. A failure by an applicant or licensee to report such a change may result in denial or revocation of a licensee. (F) License Application -Dancer. Live Entertainer or Performer. An application for a Dancer, Live Entertainer or Performer license must be made on a form provided by the City. The completed application must contain the following information: 1. Proof of the applicant's age. 2: The name, place, and date of birth; street; city and mailing address, and phone number of the applicant. 3. Whether the applicant has ever used or has been known by a name other than the applicant's name, and if so, the name or names used and information concerning dates and places where used. 4. The street and city addresses at which the applicant has lived during the preceding two years. 5. Whether the applicant has ever been convicted of a gross misdemeanor or felony or any crime relating sex offenses, obscenity offenses, or Adult Establishments. Section 114.27 Disqualifications and Requalifications. (A) The City will issue an Adult Establishment or Accessory Adult Establishment license to an applicant within 30 days of the application unless one or more of the following conditions exist: 1. The applicant is under age 21; 2. The applicant failed to supply all of the information requested on the license application; 3. The applicant gives false, fraudulent, or untruthful information on the license application; 4. The applicant has been convicted of a misdemeanor relating to sex offenses, obscenity offenses, or Adult Establishments, agross misdemeanor relating to sex offenses, obscenity offenses, or Adult Establishments, or a felony relating to sex offenses, obscenity offenses, or Adult Establishments. 5. The Adult Establishment or Accessory Adult Establishment is not in full compliance with the Hastings City Code and all provisions of state and federal law; 6. The applicant has not paid the required license fee; 7. The applicant has been denied a license by the City or any other Minnesota municipal corporation to operate an Adult Establishment, or such license has been suspended or revoked, within the preceding twelve (12) months; 8. The applicant is not the proprietor of the establishment for which the license is issued; or 9. The Adult Establishment premises holds an intoxicating liquor, beer or wine license, or a license as a tanning, tattoo, pawn shop or therapeutic massage premises. (B) An Adult Establishment or Accessory Adult Establishment license applicant may qualify for a license: 1. After one year has elapsed in the case of a previous license revocation; 2. After two years have elapsed since the date of conviction or the date of release from confinement in the case of a misdemeanor or gross misdemeanor offense; 3. After five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction, whichever is later, in the case of a felony offense; or 4. After five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is later, if the conviction is of two or more misdemeanor or gross misdemeanor offenses or a combination of misdemeanor or gross misdemeanor offenses occurring within any 24-month period. (C) The City will issue a Dancer, Live Entertainer or Performer license to an applicant within 30 days of the application unless one or more of the following conditions exist: 1. The applicant is under age 18; 2. The applicant failed to supply all of the information requested on the license application; 3. The applicant gives false, fraudulent, or untruthful information on the license application; 4. The applicant has been convicted of a misdemeanor relating to sex offenses, obscenity - offenses; or Adult Establishments; a-gross misdemeanor relating to sex offenses, obscenity offenses, or Adult Establishments, or a felony relating to sex offenses, obscenity offenses, or Adult Establishments; 5. The applicant has not paid the required license fee; or 6. The applicant is shown to have committed an act which resulted in suspension or revocation of an Adult Establishment or Accessory Adult Establishment license. (D) A Dancer, Live Entertainer or Performer license applicant may qualify for a license: 1. After one year has elapsed in the case of a previous license revocation; 2. After two years have elapsed since the date of a conviction or the date of release from confinement in the case of a misdemeanor or gross misdemeanor offense; 3. After five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction, whichever is later, in the case of a felony offense; or 4. After five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is later, if the conviction is of two or more misdemeanor or gross misdemeanor offenses or a combination of misdemeanor or gross misdemeanor offenses occurring within any 24-month period. Section 114.28 Expiration and Renewal. (A) Expiration. All licenses issued pursuant to this Chapter expire at the end of the calendar year. (B) Renewal. A licensee may renew a license by completing an application as provided in section 114.26. Section 114.29 Suspension. (A) Causes of Suspension. The City may suspend a license for a period not to exceed 60 days if it determines that the licensee or an employee of a licensee has: 1. Violated or is not in compliance with any provision of this Ordinance; 9 2. Allowed or engaged in the sale or use of alcoholic beverages while on the Adult Establishment premises other than at an Adult Hotel or Motel; 3. Refused to allow an inspection of the Adult Establishment or Accessory Adult Establishment as authorized by this Ordinance; or 4. Knowingly permitted unlawful gambling by a person on the Adult Establishment premises. (B) Notice. A suspension by the City shall be preceded by written notice to the licensee and a public hearing. The notice shall give at least 10 days' notice of the time and place of the hearing and shall state the nature of the charges against the licensee. The notice may be served upon the licensee personally, or by leaving the same at the licensed business premises with the person in charge thereof, or by mailing the notice by U.S. Mail to the last known address of the owner or agent authorized to receive legal notices for the business, as listed on its license application. Section 114.30 Revocation. (A) Suspended Licenses. The City may revoke a license if a cause of suspension in Section 114.29 occurs and the license has been suspended at least once before within the preceding 14 months. (B) Causes of Revocation. The City may revoke a license if it determines that: 1. A licensee gave false or misleading information in the material submitted to the City _ _ ..... _. _ .. during the-application process; _ . _ _ _ . 2. A licensee or an employee knowingly allowed possession, use, or sale of controlled substances on the premises; 3. A licensee or an employee has knowingly allowed prostitution on the premises; 4. A licensee or an employee knowingly operated the Adult Establishment or Accessory Adult Establishment during a period of time when the licensee's license was suspended; 5. A licensee has been convicted of an offense listed in the applicable provisions of section 114.27, for which the time period required in section 114.27 has not elapsed; or 6. Except in the case of an Adult Hotel or Motel, a licensee or an employee knowingly allowed an act of sexual intercourse, sodomy, oral copulation or masturbation to occur in or on the licensed premises. (C) Appeals. The fact that a conviction is being appealed shall have no effect on the revocation of the license. (D) Granting; a License After Revocation. When the City revokes a license, the revocation shall continue for one year and the licensee shall not be issued an Adult Establishment license, an Accessory Adult Establishment license, or a Dancer, Live Entertainer or Performer license for one year from the date revocation became effective. If, subsequent to revocation, the City finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license is revoked due to a criminal conviction under the applicable provisions of section 114.27, an applicant may not be granted another license until the appropriate number of years required under section 114.27 have elapsed. Section 114.31 Procedures for Appeal. Non-renewals and revocation of all licenses issued pursuant to this Chapter are governed by the following: (A) Notice and Hearin. In the event that the City proposes not to renew or revoke a license, the City will notify the licensee in writing of the basis for the action. The council will hold a hearing for the purpose of determining whether or not to renew or revoke the 10 license. The hearing must be held within 30 days of the date of the notice. The city council must determine whether or not to renew or revoke a license within 30 days after the close of the hearing or within 60 days of the date of the notice, whichever is sooner. The council must notify the licensee of its decision within that period. (B) Revocation. If the council determines to revoke a license, the revocation is not effective until 15 days after notification of the decision to the licensee. If, within that 15 days, the licensee files and serves an action in state or federal court challenging the council's action, the revocation is stayed until the conclusion of such action. (C) Non-renewal. If the city council determines not to renew a license, the licensee may continue its business for 15 days after receiving notice of such non-renewal. If the licensee files and serves an action in state or federal court within the 15 days for the purpose of determining whether the City acted properly, the licensee may continue in business until the conclusion of the action. (D) Prompt Judicial Review. After denial of an application or a renewal of an application, or suspension or revocation of any license, the applicant or licensee may seek prompt judicial review of such action in any court of competent jurisdiction. The court shall promptly review such action. Section 114.32 Posting. The license, if granted, must state on its face the name of the person or entity to whom it is granted, the expiration date, and the address of the Adult Establishment or Accessory Adult Establishment, if applicable. The license must be posted in a conspicuous place at or near the entrance to the Adult Establishment or Accessory Adult Establishment. Section 114.33 Fees. (A) The annual license fee for Adult Establishments and Accessory Adult Establishments is $2,000.00. The annual fee for a Dancer, Live Entertainer or Performer license is $100.00. If eight (8) months of any licensing year have elapsed when an application is made, the fee shall be reduced to one-half of the regular amount. The fee is non- refundable. The City may also require the applicant to escrow additional funds sufficient for the City's cost of research and performing background checks. Section 114.34 Inspections: (A) Access. An applicant or licensee shall permit health officials, representatives of the police department, f°ire department, and building inspector, to inspect the premises of an Adult Establishment or Accessory Adult Establishment for the purpose of ensuring compliance with the law, at any time it is occupied or open for business. The licensee is at all times responsible for the conduct, activity and operation of the business. (B) Refusal to Permit Inspections. Refusal to permit a lawful inspection of the premises by health officials, representatives of the police department, fire department, or building inspector at any time it is occupied or open for business is a violation of this Ordinance. Refusal to permit inspections may result in non-renewal, suspension or revocation of the license. (C) Exceptions. The provisions of this section do not apply to areas of an Adult Hotel or Motel that are currently being rented by a customer for use as permanent or temporary habitation. Temporary habitation is defined as a period of time of at least 12 hours. 11 Section 114.35 Transfer of License. A licensee shall not transfer a license to another, nor shall a licensee operate an Adult Establishment or Accessory Adult Establishment under the authority of a license at any place other than the address designated in the application. Section 114.36 Penalty. Any person violating any provision of this Ordinance shall be guilty of a misdemeanor, and upon conviction shall be subject to the penalties for a misdemeanor as prescribed by state law. Each day the violation continues shall be considered a separate misdemeanor offense punishable by a separate misdemeanor penalty. The City may also enforce any provision of this Ordinance by mandamus, injunction or any other appropriate civil remedy in any court of competent jurisdiction. Section 114.37 Severability. Every section, provision, or part of this Ordinance is declared severable from every other section, provision or part thereof to the extent that if any section, provision, or part of this Ordinance be held invalid by a court of competent jurisdiction it shall not invalidate any other section, provision, or part thereof. Further, Chapter 155 of the Hastings City Code is hereby amended and Section 155.32 is deleted in its entirety and replaced as follows: 155.32 C-4 REGIONAL SHOPPING CENTER (A) Intent. The intent of this chapter in establishing a regional shopping center district is in recognition of future needs for one or more large commercial areas to serve the city and surrounding areas. (B) Uses permitted. All uses permitted in C-3 Community Regional Commerce District. (C) Uses by special permit. (1) All uses permitted by special use in the C-3 Community Regional Commerce District and the following. (2) Adult Establishments and Accessory Adult Establishments (as defined in Chapter 114) subject to the following minimum requirements: (a) Adult Establishments and Accessory Adult Establishments shall be located at least 500 feet away from any residential property; (b) Adult Establishments and Accessory Adult Establishments shall be located at least 500 feet away from any church, school, library, park and public recreation area; (c) Adult Establishments and Accessory Adult Establishments shall be located at least 500 away feet from any other Adult Establishment or Accessory Adult Establishments; and (d) Adult Establishments and Accessory Adult Establishments shall obtain all city licenses required in Chapter 114 before commencing operation. 12 (3) Towers as regulated by § 155.07. (Prior Code, § 10.21) (4) (a) Temporary auto sales may be allowed to support the activities of anon-profit community organization (such as a fundraiser for a sports team or school). Each auto dealership may be allowed 1 sale per year, with the sale not to exceed 14 calendar days per year. Each parcel of land in the C-4 district is allowed 1 sale per year. If a business consists of more than 1 parcel, only 1 sale may be allowed. (b) The following shall be considered in granting a special use permit: 1. The effect on the total number of parking spaces at the business the sale is held. 2. The effect of the ingress and egress at the parking lot. 3. The effect on accessibility of emergency services. 4. The effect on neighboring businesses or residential areas from an increase in traffic. - (Am. Ord. 555, 2nd Series, passed 8-7-2006; Am. Ord. 2007-02, 3rd Series, passed 7-16-2007) Penalty, see § 10.99 13 Council member moved a second to this Resolution, and upon being put to a vote it was unanimously adopted by all Council members present. Adopted by the Hastings City Council on this day of 2008, by the following vote: Ayes Nays: Absent: CITY OF HASTINGS ATTEST: Paul J. Hicks, Mayor Melanie Mesko Lee, City Clerk - - I hereby certify that the above is a true and correct copy of the Resolution presented to and adopted by the City of Hastings, County of Dakota, Minnesota, on the day of 2008, as disclosed by the records of the City of Hastings on file and of record in the office. Melanie Mesko Lee, City Clerk 14 w `_ ~ ~'~ ~ L_ _ ~ ~ o ~ - ~ ~ -a _ c __ .~ '~, ~~ I ~ ~ ~ ~ ~ I --} s -~ _ - - -- r~ ~ ` >, ~~ __ _ S i '~ ~' W .,~,w - ~.i , \ ~ m C17 '~/,(~~ r i ~ ~ _ . _ ~>~ ~ ~ ~ ~ ~ _ ~ ;~ l ~ ~. ~ q3 . ~~ ~ J ~ ~ ,;~ ~~ ~ ~ i v~ ~ ~ ~ ~ ~ ~ __ r U t O ,t ~ i O f -~ ~\ \ 1 C7 N ~ ~L ~M~M~~ ~L ~ L c~YI FYI ~ m ~ U 0 L ~.} '*'~ \ ~a/ 4~ a ~~~~ 0 w -- o~ m ~~.,, ~~ `,, o-n n ~ .. __ J~ ~~ ~~~~ ~~ ~~-----~ ffit k- V) Q \~ `~ ~l Oj~~fj'1/ i / i "~~~I o~ 0 U U3 w c~ a a~ 0 L U C U3 O Z Y-1 -~ ;~~ r 2i0 ANb'~~Il ~II i r~ L .~}.y{1 1~ w J m ~' ~ ;x ~i U ,~ ~.., p, .,~ c°r~ U '~s ., -_. 2,, Proposed Adult Use Ordinance Changes Planning Committee of City Council • Accessory Adult Use o <= 10% of floor area (350SgFt max) o <= 20% of gross receipts o Do not involve any activity except sale or rental of merchandise o Separate room in clear view of manager o No internal or external advertising of materials or products • Hours of operation o Prohibited from 1 am to Sam Monday through Saturday o Prohibited from 1 am and 12 noon on Sunday. o (Further restrictions on hours were reviewed and not recommended based on increased difficulty in proving harmful secondary affects different than a liquor license.) • Off Site Viewing o Must prevent off site viewing of materials and activities • Signage o No message or images which identifies sexual activities or anatomical areas o No merchandise, photos or pictures of products o No window displays o Activities and products cannot be visible outside • Liquor o Sale and consumption prohibited • Nudity o Full nudity is only allowed in a modeling class which meets the requirements • Layout o Customer entrances must be visible from right-of-way o Must be designed so management must be able to see patrons at all time o Illumination must be adequate to observe location and activities • Contact o No soliciting, payments, exchange of gratuity, exchange of money or any other items between performers, patrons, or others involved in live entertainment o No fondling, caressing, or contact of any type between performers and patrons 0 10' between performer and patron o Performer must be on a stage/ platform elevated at least 2' • Booths o Booths, partitions, and curtains are prohibited Operators License o Required for all owners and spouses ^ Ownership description • Prior names • Current and prior addresses • All businesses within 2 yrs • Convictions of a felony, crime or violation or ordinance (except traffic) • Copy of partnership agreement • Name of manger, proprietors and agents • Site plan • Floor plan • Revocation of previous adult licenses • Transfer of license prohibited o Denial if owners or spouse: • Under 21 • Non proprietor of business • Violation of adult ordinance in last year • Inadequate info • False info • Convictions for gross misdemeanor or felony related to sex offenses, obscenity or adult establishments • Denial, suspension, or revocation of license in other MN City in last 12 mo. • Not zoned correctly • Current license as a tanning, tattoo, pawnshop, liquor establishment, or therapeutic massage • Failure to pay fee • Not US Citizen 0 60 day suspension ^ Violation of ordinance or state law ^ Sale of alcohol ^ Refusal of inspection ^ Gambling ^ Delinquent taxes ^ Delinquent fees o Revocation ^ Suspend in last 14 months ^ False info ^ Use or sale of controlled substances ^ Prostitution ^ Illegal distribution of obscene materials ^ Operation during suspension ^ Certain convictions ^ Two or more certain offences within a 12 month period ^ Allowed specified sexual activities o Fees. ^ $2,000 annually plus escrow for costs incurred to research and perform background checks Employee license o Proof of age o Background check o fee o License revoked if caused an operator license to be suspended or revoked • Where allowable o C-4 Regional Shopping center • Setbacks • 500' from residentially zoned property • 500' from church, school, library, park/ public recreation (750 foot setback was reviewed; available land would not meet the five percent availability or commercial land) • 500' from another adult use Donald J. Fluegel Daniel J. Flue,el Sean R. I<4cCarthy FLUEGEL 1.7'1W FIRM P.A. Attorneys At Law 1303 south Fronta~~e Koad, Suite 5 Hastings. N1N X5033-2477 Telephone 6> I -435-9777 Fax fi51-435-9771 MEMORANDUM TO: HONORABLE MAYOR AND CITY COUN MEMBERS FROM: DANIEL J. FLUEGEL, CITY ATTORNEY DATE: APRIL 3, 2008 RE: ADULT USES In drafting and enacting an Adult Use Ordinance, the City must take into account legal authority from numerous sources including the First Amendment to the Constitution of the United States, federal. and state judicial rulings, state statutes and other local ordinances that impact the adult uses being regulated. Because the legal authority is so extensive, I will attempt to provide some guidance on the general legal concepts that govern adult use restrictions and also respond to some of the questions and connnents that have been raised by individuals in the Community. I am providing information on the following three topic areas: (1) Application of First Amendment Rulings to Adult Uses; (2) Minnesota Statutes §617.242 Adult Entertaimnent Establishments; and (3) Distinction between Obscefuty and Protected Adult Uses. Application of First Amendment to Adult Uses The Supreme Court of the United States has determined that many fornis of adult uses constitute expressive speech or conduct which is subject to free speech protections under the First Amendment. There is a distinction between these protected activities and "obscene" activities or content and that distinction is discussed in more detail below. When govennnent regulations are enacted for the purpose of restraining speech or expressive conduct based on its content, those restrictions are presumed to violate the First Amendment. Regulations that prohibit constitutionally protected adult uses based on the content of the speech (or activity) will almost always be found unconstitutional and unenforceable. Cities have been successful by imposing restrictions that are not intended to directly regulate the speech or expressive activity, but instead are intended to prevent the negative secondary elfecis that have been proven to result from these adult uses. Undesirable secondary effects of adult uses have been found to include increased crime, declining property values, declining retail trade, and a negative impact on the quality of life in the cofnmuf>ity. Because a city has a substantial governmental interest in preventing these undesirable secondary effects of adult uses, the city may impose content-neutral restrictions on the time, place and manner in which the adult uses can be conducted. However, in imposing those restrictions, the regulations must always provide business owners reasonable opportunities to open and operate adult use businesses ' Also admitted to practice in Wisconsin Honorable Mayor and City Council Members Page 2 of 4 Apri13, 2008 within the city. If no reasonable alternative avenues for this constitutionally protected speech or conduct are available within a city, the ordinance imposing the restrictions will likely be found unconstitutional. Defining what activities fall within the definition of constitutionally protected free speech can be difficult but generally if the adult use does not constihite obscene activity as discussed below, it will most likely be considered a constitutionally protected activity. It is therefore my opinion that any city ordinance which, as applied, prevents all reasonable opportunities for an adult use business to locate within the City, will be found unconstitutional and unenforceable if challenged. The current Adult Use Ordinance for the City of Hastings allows adult use-principal by special use permit within the C-4 Regional Shopping Center zoning district. Adult use-principal is a prohibited use in all other zoning districts within the City. The normal requirements of an application for a special use permit apply and there are additional proximity restrictions on adult uses in the current Ordinance. A public hearing is required before issuance of any special use permit. in addition, businesses must obtain a license from the City before operating an adult use. Also, the current City Ordinance regulating alcoholic beverages and liquor licenses prohibits nudity within any premises licensed for liquor sale or distribution. If the interim ordinance (moratorium) currently before the City Council is enacted, no special use permits for adult uses may be issued during the term of the moratorium. The cun-ent plamling process relating to the adult use ordinance began many months ago after staff questioned whether or not the C-4 zoning district was an appropriate area in which to allow adult uses. I know there have been numerous and very legitimate ideas discussed which suggest some areas maybe more appropriate than others for this type of use. hlitially, staff believed there may be benefit from keeping these types of uses away from the Highway 55 Con-idor as a major roadway. There have also been discussions suggesting that having the adult uses in a more visible location would be preferred. That is probably a political question and not a legal question. As part of these discussions, staff researched the question of how much area would be needed ~~~here adult uses are allowed to satisfy the reasonable opportunity requirement. As part of that process, I gave to the Planning Department an opinion that the area where adult uses are allowed should probably not be less than 6 to 7 percent of the total commercial property contained within the City. I based the opinion on my review of many federal and Minnesota judicial decisions. There is no "bright line" test to determine how much area must be allowed for these uses within a city. However, the various cases suggest that restricting adult uses to less than 5 percent of commercial area within the City may not be considered as allowing reasonable opportunity for a business to locate within the City. There are cases that specifically found ordinances allowing adult uses in approximately 6 percent to 7 percent of the conunercial areas are enforceable. Again, the exact percentage is not a "safe harbor" for ordinances. Instead, a court would look at whether the ordinance allows a reasonable opportunity for a new business to locate within the City based on the ordinance restrictions as well as factors including proximity restrictions, Honorable Mayor and City Council Members Page 3 of 4 April 3, 2008 limited access, lack of utility services, proximity to heavy industrial uses, and other factors that would practically prevent a business From selecting a viable location for an adult use within the allowed areas. Based on the foregoing, it is my opiluon and recommendation to the City Council that any adult use ordinance needs to allow constitutionally protected adult uses within some location in the City of Hastings and application of the ordinance, including application of all proximity reduirements, needs to allow adult use business owners a reasonable and viable opportunity to locate adult use businesses within the City. Minnesota Statute X617.242 -Adult Entertainment Establishments I la~ow Dave Osberg forwarded to the Council the Minnesota League of Cities Memorandum on regulation of adult uses which very clearly describes the serious doubts that exist oil this Statute's constitutionality. I am attaching a copy of that Memorandum and the statute for any parties who did not receive it. Essentially, this statute became effective May, 2006 and _ established under state law certain restrictions for adult entertainment establislnnents. The statute does not regulate all adult uses but instead only adult entertainment establishments which generally would include live performances that depict sexual conduct or nudity. After the statute became effective, an adult entertainment establishment filed a motion in federal court seeking an injunction preventing the City of Duluth from enforcing its own ordinance as well as the Mimlesota Statute regulating adult entertainment establishments. The opinion of the federal court (copy attached) was issued in August, 2006 and the court issued an injunction prohibiting the City of Duluth from enforcing provisions of this statute. Although the opinion does not in itself strike down the statute altogether and the statute has not since been repealed, there are serious doubts about the stahrte's constitutionality and as noted in the Memorandum from the League, cities should not rely on the statute to regulate adult use establishments. There are specific statements in the federal court opiluon indicating that nude dancing is expressive conduct protected by the First Amendment. Through the application of either the city ordinance or the state statute, there were not sites available for location of an adult entertainment establishment within the city. The business then faced the choice of abandoning its constihitionallyprntected activity or facing possible criminal prosecution. With no reasonable alternative avenues for the constitutionally protected activity, the ordinance and the statute likely violated the First Amendment protections. Based on the foregoing, my review of the authorities cited, and the opinion provided fi-om the League of Minnesota Cities and other attorneys, I recommend that any adult use ordinance enacted by the City of Hastings not rely on the provisions of Minnesota Statutes 5617242 and that any new ordinance specifically "opt out" of regulations tinder the Statute. Honorable Mayor and City Council Members Page 4 of 4 April 3, 2008 Distinction between Obscene Acts and Constitutionally Protected Adult Uses 1 think it is important that the Council and members of the Community keep in mind that activities and materials which fall within the definition of obscenity can be completelyprohibited and are not subject to the First Amendment protections. Minnesota Statutes $617.241 makes it a crime to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute or attempt to distribute any obscene material or to produce, present, participate in, or direct an obscene performance. The definition of obscene is also included in that statute (a copy attached). As you will see, it is difficult to apply the definition of obscene. The definition incorporates application of "contemporary community standards" and 1 saw that phrase referenced in one of the recent emails from a member of the Community. While the concept of contemporary community standards would apply in a tlzal against a person charged with displaying obscene materials or perforniances, I caution the City Council on blending this concept into the City's ability to regulate adult uses. An attempt by a governing body to expand the definition of obscenity so that nearly all adult uses and adult entertainment activities would be prohibited would, in my opinion, likely be overturned if challenged. Federal and state courts have consistently determined that many adult uses, including live entertainment,.simply do not constitute obscene material or _ performances. Summary It is my opinion that the City proceed with enacting the interim ordinance (moratorium) to allow additional time for the plaimling process. Throughout that process, additional input can be obtained from the public. Based on that input and all other information available, staff and the Council can proceed with examining the existing Adult Use Ordinance to determine if any changes should or should not be made. If the Council considers changing the locations where adult uses will be allowed, it is my recommendation that specific findings be made confirming the restrictions will allow a reasonable opportunity for adult use businesses to locate within the City. The Council may wish to consider modifications to the Ordinance adding specific restrictions on live performances and I know the Plaiming Department is compiling information on possible restrictions from other city ordinances. I strongly reconunend the City not rely on the provisions of Minnesota Statutes X617.242. jJEAGUEor I CONNECTING & INNOVATfNG j~INNESOTA ~Iticc ~ ~, 3 CIT1 ES RISK MANAGEMENT INFORMATION STRIP CLUBS: THE BARE ESSENTIALS REGULATION OF AD UL T USES B Y MINNESOTA CITIL'S Regulation of adult uses-such as adult cabarets (i.e. strip clubs), adult bookstores, and adult theaters--can present significant challenges for Minnesota cities. Adult uses have constitutional free speech protections which complicate efforts to regulate them. In addition, adult use owners have a substantial financial interest in opening and operating adult uses. As a result, attempts by cities to regulate adult uses are often met with costly legal challenges. Cities often fail to recognize the need to regulate adult uses. The city may be taken by surprise when an adult use establishment opens shop and the appropriate measures may not be in place to properly regulate the adult use. This may leave the city scrambting to respond to an unsatisfactory situation. However, attempting to regulate an adult use after it has already moved in is problematic. The adult use may locate in an especially objectionable part of the city and it will be more difficult to remove or regulate the adult use once it is established. 1n addition, the city is more likely to become involved in litigation if it tries to regulate an adult use that has already opened its doors. Therefore, having a regulatory scheme in place prior to the opening of an adult use in your city is the best way to insure the city can control its harmful effects. Adult Uses and the First Amendment The First Amendment protects freedom of speech and expression. Adult uses-including adult cabarets, adult book stores, and adult theaters-are entitled to First Amendment protection. Adult books, magazines, and movies contain First Amendment protected speech. The United States Supreme Court has also found that adult dancing involves "expressive conduct" falling "within the outer ambit of the First Amendment's protection." Cities must be especially careful when regulating adult uses because these uses are protected by the First Amendment. A regulation that is enacted for the purpose of restraining speech on the basis of its content presumptively violates the First Amendment. Therefore, cities cannot prohibit adult uses because of their explicit nature. Such a regulation would be an unconstitutional prior restraint on the content of First Amendment protected speech. An adult use regulation that violates the First Amendment will be struck down, and the city will be left without a means of regulating the adult use. This material is provided as general Information and Is not a substitute for legal advice. Consult your attorney for advice concerning specific s~tuat~ons~ LEAGUE OE MINNESOTA Cll IES iasu~n.~r.~nv.wi.~Vi.sr rn;v,.i~;5tl2iil-1200 r:~x i(:51)281 IZ~)<s 1 NSURANCE TRUST :l. rnui_ :~~h rrs.a~~o.,•~ ~~~,.t ta,a rti00~ 92>-1122 :pia ~~•s,~~:.,n,t c>ac However, not all regulation of adult uses is proscribed by the First Amendment. Municipal regulation of adult uses will be found constitutional if the city can show that the regulation: 1) is a content-neutral tune, place, and manner regulation; 2) is designed to serve a substantial government interest; and 3) does not unreasonably limit alternative avenues of communication. A city ordinance regulating adult uses will be considered content-neutral if its purpose is not to regulate the content of the protected speech, but instead to lessen the negative "secondary effects" attributable to adult uses. These secondary effects may include prostitution and other criminal activity, drug use, increased incidence of sexually transmitted disease, decreases in neighboring property values, and blight. Cities have a legitimate interest in regulating the secondary effects of adult uses. Prior to enacting an ordinance that regulates adult uses, a city must engage in legislative fact- finding that establishes the negative secondary effects of adult uses. Cities may rely on studies conducted by other cities to establish the secondary effects of adult uses, as long as the evidence relied upon by the city is reasonably believed to be relevant to the problem addressed by the zoning ordinance. Cities may also compile their own city-specific data, such as police reports and crime statistics to justify their zoning regulations. Failure to conduct the requisite fact-finding may result in the ordinance being struck down. What Can Cities Do To Regulate Adult Uses? There are several ways cities can regulate adult uses without running afoul of the First Amendment. Cities can regulate adult uses through zoning ordinances, licensing ordinances, and prohibitions against public nudity. Zoning Cities may regulate adult uses through zoning ordinances. A zoning ordinance may regulate adult uses by dispersing them or concentrating them into a particular area. Some zoning ordinances do both. A zoning ordinance that concentrates adult uses into a particular zone allows for focused law enforcement and prevents the secondary effects of adult uses from spreading into other parts of the city. A zoning ordinance that disperses adult uses spreads them out, thereby minimizing the secondary effects of adult uses. An ordinance that disperses adult uses might require that adult uses be "750 feet from other sexually oriented businesses, single or multi-family dwellings, churches, schools, bars, and public parks." Whether a zoning ordinance disperses or concentrates adult uses, the zoning ordinance may not deny a reasonable opporhmity to open and operate an adult use somewhere in the city because under the First Amendment, the zoning ordinance must not unreasonably limit alternative avenues of communication. A city's zoning ordinance may also include provisions for amortization of nonconforming adult uses. A nonconforming use is one that was lawful at the time of its inception, but no longer complies with the current zoning ordinance. Amortization provides a grace period during which the time and money spent on a nonconforming land use can be recouped prior to ternlination of the use. Amortization of adult uses is authorized by Minn. Stat. ~ 46?.357 subd. 1 e (b). The amortization period must be reasonable. Moratoria State law authorizes cities to enact interim land use ordinances. The interim ordinances may place a moratorium of limited duration on particular land uses for the purpose of conducting studies to support a zoning amendment. However, moratoria on adult uses raise serious First Amendment problems. Moratoria that prevent adult uses from opening anywhere in the city ]lave been struck down because they unreasonably limit alternative avenues of communication. In addition, moratoria that prohibit adult uses have been held to be unconstitutional prior restraints on speech. A city considering enacting a moratorium on adult uses should be aware that the moratorium is particularly susceptible to legal challenge. If after consulting the city attorney the city council detennines it is necessary to enact a moratorium on adult uses, then the city should take a number of steps to make it more likely the moratorium will withstand a legal challenge. The moratorium ordinance: I) should be as short in duration as possible, 2) include findings based upon review of secondary effects studies, 3) include precise definitions of the adult uses regulated by the moratorium, and 4) define a temporary location for adult uses to operate during the moratorium. Again the city is cautioned that even these steps may not be enough to save a moratorium from a First Amendment challenge. Licensing A licensing ordinance is a prior restraint on speech and bears a heavy presumption against validity. Nevertheless, cities may impose reasonable licensing requirements on adult uses to control their secondary effects. Because adult businesses are protected by the First Amendment, licensing ordinances must contain narrow, objective, and definite standards that limit the discretion of the licensing authority. Protected speech may not be censored simply because the licensing authority disapproves of its content. The licensing ordinance must also set a reasonable and definite deadline for approval, and provide for prompt judicial review of the licensing authority's decision. A licensing ordinance that allows administrative delay to restrain speech will be found unconstitutional. Licensing ordinances requiring that applicants disclose their Warne, age, and criminal history and providing for background checks on applicants have been upheld as substantially related to the legitimate government interest of guarding against the secondary effects of adult businesses. Licensing ordinances disqualifying applicants who have been convicted of certain sex crimes have also been upheld. The ordinance should enumerate the disqualifying crimes and set a reasonable limit on the period of disqualification. Licensing ordinances setting a minimum distance between dancers and patrons and preventing the exchange of money between dancers and patrons have been upheld as furthering the legitimate government interest of preventing crime. Cities may impose license fees for the issuance of an adult use license. The amount of the fee must be reasonably re]ated to the costs of administering the licensing ordinance. Pr-ohibitioi~ orr Public Nudity The United States Supreme Court has upheld city ordinances prohibiting public nudity and requiring exotic dancers to wear "pasties" and a "g-string" when performing. In addition, cities may prohibit the sale of liquor in establishments where totally nude dancing occurs. In both cases, the city should be able to show that the regulation was necessary to prevent the negative secondary effects of the prohibited conduct. Minn. Stat. § 617.242 In 2006, the State Legislature adopted Minn. Stat. § 617.242. The statute is intended to help municipalities address the opening and operation of strip clubs. However, there are serious doubts about the statute's constitutionality. Therefore, cities are cautioned not to rely on Minn. Stat. § 617.242 to regulate strip clubs. The statute regulates "adult entertainment establishments." Adult entertainment establishments are defined in the statute as "a business open only to adults and that presents live performances that are distinguished or characterized by an emphasis on the depiction of sexual conduct or nudity." The statute does not regulate other adult uses, such as adult book stores or adult theatres. The stahrte requires an adult entertainment establishment to provide written notice to a municipality 60 days prior to applying for a permit to operate the establishment in the municipality. If the municipality has no permit requirement, the adult entertainment establishment must give written notice to the municipality 60 days prior to conmiencing operation of the adult entertainment establishment. Upon receipt of the notice, the officer receiving the notice on behalf of the municipality must acknowledge receipt of the notice by certified mail, return receipt requested, and notify the governing body of the notice. The governing body may conduct public hearings on the proposed operation of the adult entertainment establishment and must give written notice by ordinary mail of the hearings to the operator of the proposed adult entertainment establishment. The stahrte prohibits persons convicted of certain sex crimes from operating or managing an adult entertainment establishment for three years after discharge of the sentence. The disqualifying sex crimes include: prostitution, criminal sexual conduct, solicitation of children, indecent exposure, distribution or exhibition of obscene materials and performances, and possession of pornographic work involving minors. Under the statute, a municipality is not required to provide, by zoning or otherwise, for a location within the city for an adult entertainment establishment to operate if another adult entertainment establishment already exists within 50 miles of the municipal boundaries. Tlie statute also limits hours and days of operation for adult entertainment establishments. In cities that do not regulate hours of operation, adult entertainment establishments are prohibited from operating before 10:00 a.m. or after 10:00 p.m., Monday through Saturday, and may not be open for business on Sundays or legal holidays. In addition, under the statute, an adult entertainment establishment may not operate in the same building as, or within 1,500 feet of, another adult entertainment establishment; within 500 feet of residential property; or within 2,800 feet of a elementary or secondary school, church, synagogue, mosque, or other place of worship. The statute applies to all municipalities that have not enacted an ordinance or regulation governing adult entertainment establishments. However, a municipality may adopt an ordinance or regulation that is consistent with the stahite, supersedes the statute, or is more restrictive than the statute. In addition, a municipality may adopt an ordinance or regulation that provides that the statute does not apply in the municipality. The statute also provides that if a municipality enacts an ordinance or regulation that only regulates a portion of the operation of an adult entertainment establishment, the statute applies to the remainder of the operation not regulated by the municipal ordinance or regulation, unless the ordinance or regulation provides otherwise. One federal district court, ruling on a motion to enjoin the statute's application, has already held that several of the statute's provisions are likely unco~istittttional. The court found that the statute's notice, distance, and hours of operation provisions likely violate the First Amendment. The court's decision was not a final judgment on the constitutionality of the statute, but it does raise serious doubts. There are a number of reasons why cities should not rely on Minn. Stat. § 617.242 alone to regulate adult uses. First, and most importantly, there are serious questions about the constitutionality of the statute. Second, the statute only applies to "adult entertainment establishments;" however the city will likely want to regulate other types of adult uses like adult bookstores and adult theaters. Third, it is unclear how the statute applies to adult entertainment establishments in existence prior to its enactment. And fourth, the general provisions of the statute may not meet the unique needs of any particular city. As a result, cities should not rely on the provisions of Minn. Stat. § 617.242 to regulate adult entertaimnent establishments. The better approach is to adopt the zoning and licensing regulations discussed in the previous section which have proven effective. Cities should also consider whether to opt out of the statute to avoid any unintended conflicts that may arise between the statute and local ordinances or regulations. Conclusion The best way to control the negative secondary effects of adult uses is to enact adult use regulations before an adult business opens up shop in the city. Cities have a number of effective tools at their disposal to regulate adult uses, including zoning ordinances, licensing ordinances, and prohibitions on public nudity. However, First Amendment protection complicates regulation of adult uses. A regulation that violates the First Amendment will be struck down. Therefore, it is imperative that the city work closely with the city attorney to craft adult use regulations that will withstand constihitional muster and protect the city's interests. James Monge 040107 Page 1 of 4 V1~stlaw M.S.A. § 617.242 r Minnesota Statutes Annotated Currentness Crimes, Criminals (Ch. 609-62~) tii Chapter 617. Abortion; Obscenity; Houses of Ill-fame (Refs & Annos) R~ Obscenity -+617.242. Adult entertainment establishments Subdivision 1. Definitions. For purposes of this section: (1) "adult entertainment establishment" means a business that is open only to adults and that presents live per- formances that are distinguished or characterized by an emphasis on the depiction of sexual conduct or nudity; (2) "sexual conduct" has the meaning given in section 617.241; and (3) nudity has the meaning given in section 617.292, subdivision 3. Page I Subd. 2. Notice to local government unit. A person must not operate an adult entertainment establishment at a location where this type of establishment was not previously located unless, at least 60 days before submitting a permit application for operation of the establishment or, if a permit is not required, at least 60 days before begin- ning operation of the establishment, the person gives written notice by certified mail to the chief clerical officer of the statutory or home rule charter city in which it will be located of the date on which the person intends to begin operation of the establishment. If the adult entertainment establishment is proposed to be located outside the boundaries of a statutory or home rule charter city the notice must be given to the clerk of the town board and the county auditor of the county in which the establishment is proposed to be located. Upon receipt of the notice, the officer must acknowledge receipt of the notice by certified mail, return receipt requested, addressed to the person, and notify the governing body or town board of the receipt of the notice. The governing body or town board may conduct hearings on the proposed operation of the adult entertainment establishment and must give written notice by ordinary mail to the operator of the establishment of any hearings. Subd. 3. Zoning; adult entertainment establishments. If an adult entertainment establishment is located with- in 50 miles of a statutory or home rule charter city or town, the governing body of the city or the town board is not required to provide by zoning or otherwise for a Location within the city or town limits in which an adult en- tertainmentestablishment may be located. If an adult entertainment establishment is located within 50 miles of the boundaries of a county, the county board is not required to provide by zoning or otherwise for a location within the county limits in which an adult entertainment establishment may be located. Subd. 4. Proximity. An adult entertainment establishment may not operate in the same building as, or within 1,500 feet from, another adult entertainment establishment; within 500 feet of residential property, regardless of how the property is zoned; or within 2,800 feet of a public or private elementary or secondary school or a church, synagogue, mosque, or other place of worship. Distances are measured between the closest property lines. Subd. 5. Hours and days of operation. An adult entertainment establishment located in a statutory or home rule city, town, or county that does not regulate hours of operation may not be open for business before 10:(>n © 2008 Thomson/West. No Claim to Orig. US Gov. Works. htto://web2.westlaw.com/orintlnrintstream.asox?nrft=HTMLE&destination=atn&sv=Snlit&... 3/7/2~OR Page 2 of 4 Page 2 M.S.A. § 617.242 a.m. or after 10:00 p.m. on Mond:ty through Saturday and may not be open for business on a Sunday or legal holiday. Subd. 6. Restrictions on ownership or management by persons convicted of certain crimes. A person who has been convicted of one of the following offenses may not operate or manage an adult business establishment for three years after discharge of the sentence for the offense, or a similar offense in another state or jurisdiction: (1) prostitution under section 609.321; 609.324; or 609.3242; (2) criminal sexual conduct under sections 609.342 to 609.3451; (3) solicitation of children under section 609.352; (4j indecent exposure under section 617.23; (5) distribution or exhibition of obscene materials and performances under section 617.241; (6) use of a minor in a sexual performance under section 617.246; or (7) possession of pornographic work involving minors under section 617.247. Subd. 7. Local regulation allowed. If a county, town, or statutory or home rule charter city does not enact an ordinance or regulation governing adult entertainment establishments, this section applies in the county, town, or city. A county, town, or city may adopt an ordinance or regulation that is consistent with this section, that super- sedes or is in whole. or in part more restrictive than this section, or that provides that this section does not apply in the county, town, or city, and the county, town, or city ordinance applies. If a county, town, or city adopts an ordinance that only regulates a portion or facet of the operation of an adult entertainment establishment, this sec- tion applies to the remainder of the operation that is not regulated by the county, town, or city ordinance, unless the ordinance provides otherwise. CREDIT(S) Laws 2006, c. 240, § 2, eff. May 27, 2006. VALIDITY <Section 617.242 was held unconstitutional in the case of Northshor Experience, Inc. v. City of Duluth, MN, D.Minn.2006, 442 F.Supp.2d 713. See Notes of Decisions.> RULES OF CRIMINAL PROCEDURE <Section 480.059, subd. 7, provides in part that statutes which relate to substantive criminal law found in chapter 617 remain in full force and effect notwithstanding the Rules of Criminal Procedure.> HISTORICAL AND STATUTORY NOTES 2008 Electronic Update 2006 Legislation © 2008 Thomson/V~iest. No Claim to Orig. US Gov. Works. http://web2.westlaw.comlgrint/grintstream. asgx?grft=HTMLE&destination=atn&sv=Snl it&... 3/7/2(1(78 Page 3 of 4 M.S.A. § 617.242 Laws 2006, c. 240, § 1, provided: Page 3 "The purpose of this act is to establish requirements governing adult entertainment establishments in order to protect the public health, safety, and welfare and to prevent criminal activity. The legislature finds that: "(1) adult entertainment establishments can contribute to an increase in criminal activity in the area in which these businesses are located, increasing the demands on crime-prevention programs and law enforcement ser- vices; "(2) adult entertainment establishments can be used as fronts for prostitution and other criminal activity and the proper management and operation of these businesses can minimize this risk; "(3) adult entertainment establishments can increase the risk of exposure to communicable diseases and facilitate the spread of communicable diseases by virtue of the design and use of the premises, endangering not only the patrons of these establishments but also the general public; "(4) adult entertainment establishments can cause or contribute to public health problems by the presence of live adult entertainment in conjunction with food or drink on the same premises; "(5) a regulatory scheme as prescribed in this act can aid in monitoring adult entertainment establishments for adverse secondary effects on the communities in which they are located; and "(6) adult entertainment establishments diminish property values and potentially endanger youth if located near schools, churches, or commercial areas." CROSS REFERENCES Ownership restriction on adult business establishments, see § 609B.545 NOTES OF DECISIONS In general 2 Injunctive relief 3 Validity 1 I. Validity Statute providing that adult entertainment establishment may not operate in the same building as, or within 1,500 feet from, another adult entertainment establishment, within 500 feet of residential property, regardless of how the property is zoned, or within 2,800 feet of a public or private elementary or secondary school or a church violated the First Amendment because it provided no reasonable alternative avenues for communication; adult establishment's expert opined that, under the statute, approximately 4.34 percent of city was available for adult entertainment, and based on his first-hand inspection of those sites, expert represented that available land was occupied by airport or was heavily industrial, either lacking infrastructure and inaccessible or occupied by an existing heavy industrial use. Northshor Experience, Inc. v. City of Duluth, MN, D.Minn.2006, 442 F.Supp.2d 713. Constitutional Law E~ 2209; Zoning And Planning ~ 76 2. In general O 2008 Thomson/West. No Claim to Orig. US Gov. Works. http://web?.westlaw.cotn/print/printstream.aspx?pt~ft=HTMLE&destination=atD&sv=SDlit&... 3/7/2008 Page 4 of 4 M.S.A. § 617.242 Page 4 Statute regulating adult entertainment businesses had to allow reasonable alternative avenues for communica- tion, and in order to determine existence of reasonable alternatives, court would examine amount of land in city open for use for adult sites after application of statute, and land did not need to be commercially viable for adult entertainment when there was ample, accessible real estate, including commercial property accessible by roads, and thus, while land need not be available to establishment at bargain prices, property was not potentially avail- able when it was unreasonable to believe that it would ever become available to any commercial enterprise. Northshor Experience, Inc. v. City of Duluth, MN, D.Minn.2(>U6, 442 F.Supp.2d 713. Constitutional Law ~ 2215; Zoning And Planning E~ 76 3. Injunctive relief Because city did not object to request by adult entertainment establishment to waive the security requirement, district court would exercise its discretion to waive the security requirement in connection with establishment's request for preliminary injunction against city, enjoining enforcement of statute and ordinance regulating adult entertainment establishments. Northshor Experience, Inc. v. City of Duluth, MN, D.Minn.2006, 442 F.Supp.2d 713. Civil Rights ~ 1457(7) Adult entertainment establishment was entitled to preliminary injunction and temporary restraining order against city, enjoining enforcement of statute regulating adult entertainment establishments; adult entertainment estab- lishment demonstrated a likelihood of success on the merits of its claim that statute violated First Amendment _ because there were no available sites for location of an adult entertainment establishment within city, and estab- lishment faced the choice of abandoning its constitutionally protected activity or facing possible criminal pro- secution. Northshor Experience, Inc. v. City of Duluth. MN, D.Minn.2006, 442 F.Supp.2d 713. Civil Rights E~ 1457(7) M. S. A. § 617.242, MN ST § 617.242 Current with laws of the 2008 Regular Session through Chapter I S t Copr. ©2008 Thomson/West END OF DOCUMENT © 2008 Thomson/VVest. No Claim to Orig. US Gov. Works. http:/hveb2. westlaw.com/print/printstream. aspx'?prft=HTN1LE&destination=atp&sv=Split&... 3/7/2008 Page 1 of 11 ~n~sc?aw 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) c Northshor Experience, Inc. v. City of Duluth, MN D.Minn.,2006. United States District Court,D. Minnesota. NORTHSHOR EXPERIENCE, INC., A Minnesota corporation; and Entertainment Concepts, L.L.C., a Minnesota limited liability company; Plaintiffs, v. CITY OF DULUTH, MINNESOTA, a municipal corporation; and City of Minneapolis, a municipal corporation; Defendants. No. 06-29981bIJD/AJB. Aug. 2, 2006. Background: Adult entertainment establishment filed motion for preliminary injunction and tempor- ary restraining order, requesting that the court en- join city from enforcing statute and city ordinance regulating adult entertainment establishments. Holdings: The District Court, Davis, J., held that: (1) adult entertainment establishment was entitled to preliminary injunction and temporary restraining order against city, enjoining enforcement of ordin- ance; (2) because city did not comply with the Minnesota Municipal Planning Act (MPA) when enacting or- dinance, ordinance was invalid and unenforceable; and (3) statutory provision governing distance restric- tions violated the First Amendment. Motion granted. West Headnotes [1] Injunction 212 X138.1 2 l2 Injunction 212IV Preliminary and Interlocutory Injunctions 212IV(A) Grounds and Proceedings to Pro- cure 212IV(A)2 Grounds and Objections Page 1 212k138.1 k. In General. Most Cited Cases When considering whether to grant preliminary in- junctions or temporary restraining orders, court must consider: (1) the threat of irreparable harm to the moving party if an injunction is not granted; (2) the harm suffered by the moving party if injunctive relief is denied as compared to the effect on the non-moving party if the relief is granted; (3) the public interest; and (4) the probability that the mov- ing party will succeed on the merits. [2] Zoning and Planning 414 X191 414 Zoning and Planning 414III Modification or Amendment 414III(B) Manner of Modifying or Amending 414k 191 k. In Generat. Most Cited Cases Zoning ordinance amendments enacted in violation of the Minnesota Municipal Planning Act (MPA) are invalid. M.S.A. § 462.357. [3] Civil Rights 78 X1457(4) 78 Civil Rights 78III Federal Remedies in General 78k 1449 injuncaion 78k 1457 Preliminary Injunction 78k1457(4) k. Property and Housing. Most Cited Cases Adult entertainment establishment was entitled to preliminary injunction and temporary restraining order against city, enjoining city from enforcing city ordinance which applied certain distance re- strictions to adult entertainment establishments; or- dinance was invalid because city did not comply with Minnesota Municipal Planning Act (MPAj when enacting it, and without injunction, adult en- tertainment establishment faced the choice of re- fraining from its constitutionally protected First Amendment activity of nude dancing or facing pos- sible criminal prosecution, and public interest favored protecting First Amendment expression. U.S.C.A. Const.Amend. I ; M.S.A. § 462.357. O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.cotn/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 2 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 7l3) [4] Zoning and Planning 414 ~7b 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(Bj Regulations as to Particular Matters 414k76 k. Particular Uses. Most Cited Cases City ordinance which applied certain distance re- strictions to adult entertainment establishments and which regulated the location and uses of buildings on the earth's surface and established standards and procedures regulating such uses was a "zoning or- dinance" within meaning of Minnesota Municipal Planning Act (MPA), and because city did not com- ply with the MPA when enacting ordinance, ordin- ance was enacted in violation of the MPA and was invalid and unenforceable. M.S.A. § 462.357(1). [5] Constitutional Law 92 X2201 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(Y) Sexual Expression 92k2201 k. Nude Dancing in General. Most Cited Cases (Formerly 92k90.4(3)) Nude dancing is expressive conduct protected by the First Amendment. U.S.C.A. Const.Amend. I . [b] Civil Rights 78 ~~1457(1) 78 Civi] Rights 78III Federal Remedies in Genera( 78k 1449 Injunction 78k 1457 Preliminary Injunction 78k 1457(1) k. In General. Most Cited Cases Loss of First Amendment freedoms constitutes an "irreparable injury" in the context of deciding whether to grant preliminary injunction. U.S.C.A. Const.Amend. 1. [7] Civil Rights 78 X1457(7) 78 Civil Rights 78III Federal Remedies in General Page 2 78k 1449 Injunction 78k 1457 Preliminary Injunction 78k1457(7) k. Other Particular Cases and Contexts. Most Cited Cases Adult entertainment establishment was entitled to preliminary injunction and temporary restraining order against city, enjoining enforcement of statute regulating adult entertainment establishments; adult entertainment establishment demonstrated a likeli- hood of success on the merits of its claim that stat- ute violated First Amendment because there were no available sites for location of an adult entertain- ment establishment within city, and establishment faced the choice of abandoning its constitutionally protected activity or facing possible criminal pro- secution. U.S.C.A. Const.Amend. l; M.S.A. § 617.242. [8] Zoning and Planning 414 ~7b 414 Zoning and Planning 414II Validity of Zoning Regulations 4141I(B) Regulations as to Particular Matters 414k76 k. Particular Uses. Most Cited Cases Local government may use its zoning powers to limit the location of an adult entertainment estab- lishment, and such a zoning ordinance is valid if it (1 j is constructed without reference to content, (2) is designed to promote a substantial governmental interest, and (3) allows reasonable alternative aven- ues for communication. U.S.C.A. Const.Amend. 1. [9] Constitutional Law 92 X2213 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(Y) Sexual Expression 92k2203 Sexually Oriented Businesses; Adult Businesses or Entertainment 92k2213 k. Secondary Effects. Most Cited Cases (Formerly 92k90.4(3)) When a zoning ordinance restricts the location of a specific adult use, such as nude dancing, and treats 2008 Thomson/Vb'est. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx`?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 3 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) that use differently than other entertainment estab- lishments, it may nevertheless be content-neutral if it is not aimed at the content of the speech, but rather at the secondary effects of the businesses nn the surrounding community. U.S.C.A. Const.Amend. I . [10] Constitutional Law 92 X2213 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and P1"eSS 92XVIII(Y) Sexual Expression 92k2203 Sexually Oriented Businesses; Adult Businesses or Entertainment 92k2213 k. Secondary Effects. Most Cited Cases (Formerly 92k90.4(3)> When municipality enacts ordinance that restricts location of specific adult use, such as nude dancing, municipality may rely on any evidence that is reas- onably believed to be relevant for dentonstratina a ci~nnection between speech and a substantial, inde- pendent government interest, but this is not to say that a municipality can get away with shoddy data or reasoning. U.S.C.A. Const.Amend. 1. [11] Constitutional Law 92 X2209 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(Y) Sexual Expression 92k2203 Sexually Oriented Businesses; Adult Businesses or Entertainment 92k2209 k. Geographic Restrictions in General. Most Cited Cases (Formerly 92k90.4(3)) When municipality enacts ordinance that restricts location of specific adult use, such as nude dancing. municipality's evidence must fairly support muni- cipality's rationale for its ordinance, and plaintiffs must cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, and Page 3 if plaintiffs succeed in casting doubt on a municip- ality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance. U.S.C.A. Const.Amend. I . [12] Constitutional Law 92 X2213 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(Y) Sexual Expression 92k2203 Sexually Oriented Businesses: Adult Businesses or Entertainment 92k2213 k. Secondary Effects. Most Cited Cases (Formerly 92k90.4(3)) In terms of demonstrating that secondary effects pose threat that justifies regulation of specific adult use, such as nude dancing, city need not conduct new studies or produce evidence independent of that already generated by other cities to demon- strate problem of secondary effects, so long as whatever evidence city relies upon is reasonably believed to be relevant to problem that city ad- dresses, and thus, generally, government does not need to study evidence of adverse secondary effects within itself, but may rely on previous findings from other jurisdictions: however, mere inclusion of a boilerplate finding that ordinance is designed to combat adverse secondary effects does not satis- fy content-neutrality test. U.S.C.A. Const.Amend. I . [13] Constitutional Law 92 ~~2212 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(Y) Sexual Expression 92k2203 Sexually Oriented Businesses; Adult Businesses or Entertainment 92k2212 k. Content Neutrality. Most Cited Cases (Formerly 92k90.4(3)) A content-neutral ordinance regulating adult enter- 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx'?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 4 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) tainment must allow reasonable alternative avenues for communication. U.S.C.A. Const.Amend. 1. [14] Constitutional Law 92 X2215 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(Y) Sexual Expression 92k2203 Sexually Oriented Businesses; Adult Businesses or Entertainment 92k2215 k. Availability of Other Sites. Most Cited Cases (Formerly 92k90.4(31) Zoning and Planning 414 X76 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(B) Regulations as to Particular Matters 414k76 k. Particular Uses. Most Cited Cases Statute regulating adult entertainment businesses had to allow reasonable alternative avenues for communication, and in order to determine existence of reasonable alternatives, court would examine amount of land in city open for use for adult sites after application of statute, and land did not need to be commercially viable for adult entertainment when there was ample, accessible real estate, in- cluding commercial property accessible by roads, and thus, while land need not be available to estab- lishment at bargain prices, property was not poten- tially available when it was unreasonable to believe that it would ever become available to any commer- cial enterprise. U.S.C.A. Const.Amend. I: M.S.A. § 6 l 7.242. [15] Constitutional Law 92 X2209 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(Yj Sexual Expression 92k2203 Sexually Oriented Businesses; Adult Businesses or Entertainment Page 4 92k2209 k. Geographic Restrictions in General. Most Cited Cases (Formerly 92k90.4(3)) Zoning and Planning 414 X76 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(B) Regulations as to Particular Matters 414k76 k. Particular Uses. Most Cited Cases Statute providing that adult entertainment establish- ment may not operate in the same building as, or within 1,500 feet from, another adult entertainment establishment, within 500 feet of residential prop- erty, regardless of how the property is zoned, or within 2,800 feet of a public or private elementary or secondary school or a church violated the First Amendment because it provided no reasonable al- ternative avenues for communication; adult esta_b- lishment's expert opined that, under the statute, ap- proximately 4.34 percent of city was available for adult entertainment, and based on his tirst-hand in- spection of those sites, expert represented that available land was occupied by airport or was heav- ily industrial, either lacking infrastructure and inac- cessible or occupied by an existing heavy industrial use. U.S.C.A. Const.Amend. 1; M.S.A. § 617.242. [16] Civil Rights 78 ~~1457(7) 78 Civil Rights 7MII Federal Remedies in General 78k 1449 Injunction 78k1457 Preliminary Injunction 78k1457(7) k. Other Particular Cases and Contexts. Most Cited Cases Because city did not object to reyuest by adult en- tertainment establishment to waive the security re- quirement, district court would exercise its discre- tion to waive the security requirement in connection with establishment's request for preliminary injunc- tion against city, enjoining enforcement of statute and ordinance regulating adult entertainment estab- lishments. Fed.Rules Civ.Proc.Rule 65(c), 28 U.S.C.A.; M.S.A. § 617?42. 2008 Thomson/West. No Claim to Orie. U.S. Govt. Works. http://web2.westlaw.com/ptintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 5 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) West Codenotes Held UnconstitutionalM.S.A. § 617.242(4). *716 Randall D.B. Tigue, Tigue Law Office, Min- neapolis, MN, for Plaintiffs. M. Alison Lutterman, Duluth City Attorney's Of- fice, Duluth, MN, for Defendant City of Duluth. Franklin E.L. Reed, Minneapolis City Attorney's Office, Minneapolis, i/fN, fvr Defendant City of Minneapolis. PRELIMINARY INJUNCTION DAMS, District Judge. I. INTRODUCTION This matter is before the Court on Plaintiffs' Motion for Preliminary Injunctive and Motion fvr Tempor- ary Restraining Order. [Docket No. 2] The Court heard oral argument on July 31, 2006. At oral argu- ment, Plaintiffs withdrew their motion fvr injunct- ive relief against the City of Minneapolis, so the Court now only addresses the remaining motion against the City of Duluth. II. BACKGROUND A. Plaintiff Northshor Experience, Inc. James Gradishar is the president of Plaintiff North- shor Experience, Inc. ("Northshor"). Northshor has a lease to operate the Northshor Theater on Superi- or Street in Duluth, Minnesota. It intends to feature live nude dance entertainment and wouid do so im- mediately but for the threat of arrest by Duluth po- lice ofticers. '~ B. 1~Iinnesota Statute On May 27, 2006, Chapter 240 of Sessions Laws 2006, coditied as Minnesota Statute § 617.242 ("the Statute") became effective. The Statute requires that an adult entertainment establishment, such as a business featuring live nude performances, provide notice to its Ivcal government of its intent to oper- ate sixty days before applying for a permit to oper- Page 5 ate or sixty days before opening fur business, if no permit is required. !d. subd. 2. Under subdivision 3, municipalities can refuse to permit an adult busi- ness to open as long as another adult business exists within fifty *717 miles of the local unit of govern- ment's boundaries. Under subdivision 4, an adult entertainment establishment is not permitted within 1,500 feet of another adult entertainment establish- ment, within 500 feet of residential property, re- gardless of its zoning, or within 2,800 feet of a school or place of worship. Subdivision 5 prohibits adult entertainment establishments from being open before 10:00 a.m. or after 10:00 p.m., Monday through Saturday, and prohibits operation on Sunday. The Statute provides for application to local gov- ernments: Local regulation allowed. If a county, town, or stat- utory or home rule charter city does not enact an or- dinance or regulation governing adult entertainment establishments, this section applies in the county, town, or city. A county, town, or city may adopt an ordinance or regulation that is consistent with this section, that supersedes or is in whole or in part more restrictive than this section, or that provides that this section does not apply in the county, town, or city, and the county, town, or city ordinance ap- plies. If a county, town, or city adopts an ordinance that only regulates a portion or facet of the opera- tion of an adult entertainment establishment, this section applies to the remainder of the operation that is not regulated by the county, town, or city or- dinance, unless the ordinance provides otherwise. Minn.Stat. § 617.242, subd. 7. C. Duluth Ordinance On July ]0, 2006, the Duluth City Council enacted Ordinance No. 9781, purportedly opting out of the Statute. However, Ordinance 9781 does apply cer- tain distance restrictions to adult entertainment es- tablishments that would prohibit Northshor from offering nude dancing in its current location. The O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.con~/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 6 of 11 442 F.Supp?d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) ordinance was enacted without a public hearing or action by the planning agency or planning commis- sion. It becomes effective on approximately August 21, 2006, thirty days after it was published. D. Procedural Background On July l3, 2006, Plaintiffs Northshor and Enter- tainment Concepts, L.L.C., tiled their Complaint against Defendants Duluth and Minneapolis in this Court. The Complaint alleges Count 1: Unconstitu- tional Statute; and Count 2: Illegal and Unconstitu- tional Ordinance. On that same day, Plaintiffs filed the current Motion for Preliminary Injunction and Temporary Restraining Order requesting that the Court enjoin Defendants from taking any action, civil, criminal, or administrative to enforce the pro- visions of the Statute, or Duluth City Ordinance No. 9781, against Plaintiffs for operating adult en- tertainment establishments within the State of Min- nesota. Because Plaintiffs have withdrawn their re- quest for an injunction against Minneapolis, the only remaining motion before the Court is North- shor's request for a preliminary injunction against Duluth. III. DISCUSSION A. Standard [ 1 ] The Eighth Circuit Court of Appeals has estab- lished the standard for considering preliminary in- junctions and temporary restraining orders. Dam- phase Sys. Inc. v. CL S~~s.. Inc.. 640 F.2d 109, 113 (8th Cir.1981) (e:n hcnrc j. 'This Court must consider (I) the threat of irreparable harm to the moving party if an injunction is not granted, (2) the harm suffered by the moving party if injunctive relief is denied as compared to the effect on the non-moving party if the relief is granted, (3j the public interest, and (4) the probability*718 that the moving party will succeed on the merits. /d. "[A] preliminary injunction motion is too early stage of the proceedings to woodenly assess Page 6 movant's probability of success on the merits with mathematical precision." Gcn. Mills. Inc. v. Kellogg Co., 824 F.2d 622, 624 (8th Cir.1987). "[W]here the balance of other factors tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation." Data- phnse Svs.. /nc.. 640 F.2d at 1 13. B. Duluth Ordinance 1. Success on the Merits [2][3] Northshor argues that Duluth unlawfully en- acted Ordinance 9781 because the ordinance is a zoning ordinance and must follow the procedural dictates of the Municipal Planning Act, Minn.Stat. § 462.357 ("MPA"). Under the MPA, a city cannot adopt a zoning ordinance or amendment without first holding a public hearing, with notice dissemin- ated ten days prior. Id. subd. 3. If an amendment to a zoning ordinance is not initiated by the planning agency, it must be referred to that agency fur study and recommendation, before it is enacted. /cI. subd. 4. "Coning ordinance amendments enacted in viola- tion of the IviPA are invalid. See, e:. g., DI ~Y1A Cnrp. i~. Ciry of St. Clotcd. 562 N.W.2d 312, 320 (Minn.Ct.App. l 997). Duluth responds that Ordinance 9781 is not a zon- ing ordinance under the MPA; thus, it was not re- quired to comply with the MPA's procedural re- quirements. Instead, it asserts that the ordinance is an exercise of its police powers to control public nuisance. Duluth argues that its ordinance is not a zoning ordinance because it does not implement a comprehensive plan or create zones or districts of uses. Alternatively, Duluth claims that, as a first class city, it is permitted to provide a different pro- cess for approval of zoning ordinances through the operation of its home rule charter. Minn.Stat. § 462.357. subd. 5. [4] The Court concludes that Duluth Ordinance 9781 is a zoning ordinance. The MPA itself ex- 2(K)8 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.cotn/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 7 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: ~t2 F.Supp.2d 7i3) plains the definition of zoning as follows: Authority for zoning. For the purpose of promot- ing the public health, safety, morals, and general welfare, a municipality may by ordinance regulate on the earth's surface, ... the location, ... of build- ings and other structures, ... the uses of buildings and structures for trade, industry, residence, recre- ation, public activities, or other purposes, and the uses of land for trade, industry, residence, recre- ation, ... and may establish standards and proced- ures regulating such uses.... The ordinance embody- ing these regulations shall be known as the zoning ordinance and shall consist of text and maps. Minn.Stat. § 462.357, subd. 1. Ordinance 9781 reg- ulates the location and uses of buildings on the earth's surface and establishes standards and pro- cedures regulating such uses. It is a "zoning ordin- ance" within the definition of the MPA. See also Fifth Colunvr v. Village of Valley View, Uhio. 100 F.Supp.2d 493,503-U6 (N.D.Ohio 1998) (holding that ordinance limiting placement of adult dancing establishments by imposing distance restrictions was a "zoning ordinance" subject to the procedural requirements of the state statute because the ordin- ance had "the actual and intended effect of limiting how a piece of property may be used. depending on its location;""police power includes the power to regulate land use through zoning and districting or- dinances," and the Supreme Court has characterized distance restrictions on *719 adult uses as "zoning ordinances"), ajfd.221 F.3d 1334 (6th Cir.2000) (table). Ordinance 9781 is a zoning ordinance, and there is no assertion that Duluth complied with the MPA when enacting it. Nor is there evidence that Duluth followed an approved procedure pursuant to Min- nesota Statute § 462.357, subd 5. Because the Or- dinance 9781 was enacted in violation of the MPA, it is invalid and unenforceable. The Court does not reach Northshor's claims that the ordinance is oth- erwise illegal and unconstitutional. Plaintiffs have demonstrated a likelihood of success on the merits. 2. Irreparable Harm Page 7 [5](6] Northshor has presented evidence that it is prepared to offer nude dancing but for the threat of enforcement of distance restrictions by Duluth. Nude dancing is expressive conduct protected by the First Amendment. BZAPS. Inc. v. City of Mmrkuto. 268 F.3d 603, 6U5 (8th Cir.2001). Without the injunction, Northshor faces the choice of refraining from its constitutionally protected activity or facing possible criminal prosecution. "Loss of first amendment freedoms constitutes an irreparable injury." Bukaka, Irrc. v. Corrnti~ of Beaton, 852 F.Supp. 807, 811 (D.Minn.1993) (citing Elrod v. Brrrrrs, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed2d 547 (1976) (plurality opinion)). The Court concludes that Northshor has demon- strated that it faces irreparable harm if the Court does not enjoin enforcement of Ordinance 9781. 3. Balance of the Harms The Court concludes that the balance of the harms weighs in favor of granting the preliminary injunc- tion. Duluth has an important interest in enforcing its zoning code to protect the welfare of its citizens. However, Northshor faces the suppression of its protected expression and has demonstrated a strong likelihood of success on its claim that the ordinance was unlawfully enacted. The Court concludes that Duluth cannot show that a short delay in enforcing the zoning ordinance, which Duluth represents would not have even gone into effect until late Au- gust, will cause particular harm at this point in time. 4. Public Interest The. public interest weighs in favor of granting the injunction. Duluth has demonstrated an important public interest in protecting the welfare of its resid- ents by enforcing its zoning code. However, the public interest favors protecting First Amendment expression. Mga Srrrrr, hrc. v. Courrtti of Beaton. 853 F.Supp. 1147, 1154 (.D.Minn.l994). Addition- 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. littp://web2.westlaw.com/print/printstream.aspx`?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 8 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) ally, through the MPA, the legislature has demon- strated the public's interest in following a clear pro- cedure for enacting zoning ordinances, which in- cludes notice to the public and the opportunity to comment on the proposed ordinance. Weighing the above factors, all of which weigh in favor of granting a preliminary injunction enjoining Duluth Ordinance 9781, the Court concludes that a preliminary injunction is warranted. C. Minnesota Statute 1. Success on the ivlerits a. Introduction [7) Because the Court enjoins Duluth Ordinance 9781, Duluth no longer has "an ordinance or regu- lation governing adult entertainment establish- ments," and, in the absence of such a regulation, the Statute applies. Ivlinn.Stat. § 617.242, subd. 7. Thus, the Court must consider Northshor's request to enjoin Duluth's enforcement of the Statute. *720 Northshor challenges three provisions of the Statute: 1) subdivisions 2 and 3, which require sixty days notice to the city prior to operating an adult enter- tainment establishment and permit local govern- ments to completely ban new operation of adult en- tertainment establishments if another adult enter- tainment establishment exits within fifty miles of the local government's boundaries; 2) subdivision 4, which provides: "An adult enter- tainment establishment may not operate in the same building as, ur within 1500 feet from, another adult entertainment establishment; within 500 feet of res- idential property, regardless of how the property is zoned; or within 2.800 feet of a public or private elementary or secondary school or a church, syn- agogue, mosque, or other place of worship. Dis- tances are measured between the closest property lines;" and 3) subdivision 5, which provides that an adult en- Page 8 tertainment establishment "may not be open for business before 10:00 a.m. or after 10:00 p.m. on Monday through Saturday and may not be open for business on a Sunday or legal holiday." b. Standard [8][9][10](11] Nude dancing is expressive conduct protected by the First Amendment. BZAPS, /nc. t~. City of Mnnknto, 268 F.3d 603, 605 (8th Cir.2001). However, a local government may use its zoning powers to limit the location of an adult entertain- ment establishment. /d. Such a zoning ordinance is valid if it I) "is constructed without reference to content;" 2) "is designed to promote a substantial governmental interest;" and 3) "allows reasonable alternative avenues for communication." Id. (citations omitted). When a zoning ordinance re- stricts the location of a specific adult use, such as nude dancing, and treats that use differently than other entertainment establishments, it may never- theless be content-neutral if it is not aimed at the content of the speech but rather at the secondary ef- fects of the businesses on the surrounding com- munity. City of Renton v. Playtime Thead-es. hzc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (I 986 ). ~~:~ municipality may rely on any evidence that is reasonably believed to be relevant for demonstrat- ing aconnection between speech and a substantial, independent government interest. This is no[ to say that a municipality can get away with shoddy data or reasoning. The municipality's evidence must fairly support the municipality's rationale for its or- dinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municip- ality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's taetual findings, the municipality meets the stand- ard ... If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the bur- den shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance. © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.coat/print/printstream.aspx'?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 9 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) Citti~ of Lor Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (citations omitted). [ 12] "[I]n terms of demonstrating that such second- ary effects pose a threat, the city need not conduct new studies or produce evidence independent of that already generated by other cities to demon- strate the problem of secondary effects, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." City of Erie v. Pap's A. M., 529 U.S. 277, 296, IZO S.Ct. 1382, l46 L.Ed.2d 265 (2000) (citation omitted). Thus, generally, the government*721 does not need to study evidence of adverse secondary effects within itself, but may rely on previous findings from other jurisdictions. However, the mere inclusion of a boilerplate find- ing that the statute is designed to combat adverse secondary effects does not satisfy the content- neutrality test. See Piaillips v. BoroaRir of Keyport, 107 F.3d 164, 175 (3d Cir.1997). c. Notice and Fifty-Mile Restrictions Under subdivisions 2 and 3 of the Statute, municip- alities, including Duluth, possess complete discre- tion to ban the operation of an adult entertainment establishment if another adult entertainment estab- lishment is located within the surrounding 7,850 miles. The Statute provides the vast majority of loc- al governments in Minnesota, including Duluth, the unbridled discretion to absolutely ban new adult en- tertainment. The Statute's requirement that an adult entertain- ment establishment tirst provide sixty days notice before operating combined with the Statute's provi- sion of unbridled discretion to local governments, such as Duluth, to prohibit that establishment from operating, appears to constitute an unlawful prior restraint, similar to a discretionary licensing scheme, and to substantially reduce the availability of protected sexually explicit speech. See, e. g., For- syth Cocent}', Cn. v. Nationalist Movement, 505 U.S. Page 9 123, 133 n. 10, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992j ("Accordingly, the success of a facial chal- lenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so."j; Exeactive Arts Studio, Inc. v. City of Granci Rapids, 391 F.3d 783, 797-98 (6th Cir.2004) (holding that adult book store ordinance failed constitutional scrutiny when it would "not only disperse adult bookstores, but severely limit their number"). The Court concludes that Northshor has demon- strated alikelihood of success on the merits of its claim that subdivisions 2 and 3 of the Statute viol- ate the First Amendment. d. Distance Restrictions [13][14)[15] Northshor also claims that the distance restrictions contained in subdivision 4 of the Statute violate the First Amendment because application of the Statute to Duluth provides no reasonable altern- ative avenues for communication. Acontent-neutral ordinance regulating adult entertainment must al- low reasonable alternative avenues for communica- tion. City of Rento~t v. Pla)'time Theatres, hu•., 475 U.S. 41, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In order to determine the existence of reasonable al- ternatives, the Court examines the amount of land in Duluth open for use for adult sites after applica- tion of subdivision 4 of the Statute. Icl. at 53, 106 S.Ct. 925. The land does not need to be "commercially viable" for adult entertainment when there is "ample, accessible real estate," in- cluding commercial property accessible by roads. Id. Thus, while land need not be available to North- shor "at bargain prices," id. at 54, 106 S.Ct. 925,"property is not `potentially' available when it is unreasonable to believe that it would ever be- come available to any commercial enterprise." To- panga Press, Inc. s. City of Los Angeles. 989 F.2d 1524, 1531 (9th Cir.1993). The Court must determ- 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.coat/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 10 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) ine whether, under the Statute, permissible sites for an adult entertainment establishment are part of an "actual market for commercial enterprises," and whether, after excluding those sites not part of the relevant real estate market, *722 there are an ad- equate number of potential sites. Id. at 1531-32. Northshor's' expert, Robert Bruce McLaughlin, opines that, under the Statute, approximately 4.34 percent of Duluth would be available for adult en- tertainment. Based on his first-hand inspection of those sites, Gradishar represents that the available land is occupied by the airport or is heavily indus- trial, either lacking infrastructure and inaccessible or occupied by an existing heavy industrial use, such as a manufacturing plant or mineral piles. Gradishar has also provided photographs of the available sites corroborating his affidavit. The affi- davit of Duluth Senior Planner Charles Froseth does not contradict Northshor's assertion that no commercial land is available for adult entertain- ment establishments in Duluth because Froseth only opines as to the existence of suitable sites under the less restrictive distance requirements in Duluth Or- dinance 9781. At this early stage in the litigation, based on the ad- missible evidence in the record, the Court con- cludes that, under the Statute, there are no available sites for location of an adult entertainment estab- lishment, such as Northshor, within Duluth. Thus, subdivision 4 of the Sta[u[e violates the First Amendment because it provides no reasonable al- ternative avenues for communication. See Univ. Bunks & Videos, /nc. v. Minnri-Dade Coiurrti~, 132 F.Supp.2d 1008, 1014 (S.D.Fla.2001) (noting that courts generally find that the number of sites is in- adequate if they occupy less than one percent of a city's acreage). e. Time Restrictions Plaintiffs assert that the Statute's restrictive hours of operations censor adult entertainment speech be- cause the majority of patrons of adult entertainment Page 10 establishments patronize them between midnight and 3:30 a.m. acid an adult entertainment establish- ment would fail if subject to the Statute's time re- strictions. (See Wise Aff. 9~y( 7-9; Peterson Aff. y[ 9.) The parties have presented no legislative history in- dicating that the hours of operation restriction is ne- cessary to combat adverse secondary effects. Only one study of the hours of operation of adult enter- tainment establishments has been cited to the Court, and that Phoenix, Arizona study does not support the time restrictions contained in the. Statute. (McLaughlin Aff. 9[9[ 53-54.) Duluth argues that it has presented evidence of the secondary effects associated with adult entertain- ment by presenting affidavits from local police of- ficers concluding that secondary effects exist. However, these affidavits have no connection to the particular time restrictions contained within the Statute. In fact, they make no mention of a connec- tion between secondary effects and hours of opera- tion. Thus, the Court concludes that Northshor is likely to succeed on its claim that the time restric- tions are not content-neutral because they were aimed at the content of the speech, not at the sec- ondary effects of adult entertainment businesses on the surrounding community. Cit}~ of Renton v. Play- time Thentres, hu•.. 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). At this stage, Northshor has shown that it is likely to succeed on its claim that the Statute was not designed to promote the substantial governmental interest of combating neg- ative secondary effects. Thus, Northshor has demonstrated a likelihood of success on the merits of its claim that the time restrictions contained in the Statute violate the First Amendment. The Court concludes that Northshor has demon- strated alikelihood of success on the merits of its claim that subdivisions 2, *723 3, 4, and 5 of the Statute are uncimstitutional. Because these provi- sions of the Statute are intemvined with the remain- ing provisions of the Statute, the Court concludes that Northshor has demonstrated a likelihood of success on the merits on its claim that the entire 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.cotn/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 11 of 11 442 F.Supp.2d 713 442 F.Supp.2d 713 (Cite as: 442 F.Supp.2d 713) Statute is unconstitutional. 2. Irreparable Harm Northshor has demonstrated that it faces irreparable harm if the injunction does not issue. Without the preliminary injunction, it must refrain from offering nude dancing. Northshor faces the choice of abandoning its constitutionally protected activity or facing possible criminal prosecution. As previously noted, "[l]oss of first amendment freedoms consti- tutes an irreparable injury." Bttktrkn, Irrc. v. Counr}~ of Benton, 852 F.Supp. 807, 811 (D.Minn.l993) (citing Elrod v. Burns. 427 t1.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion)). 3. Balance of the Harms and Public Interest The Court concludes that the balance of the harms weighs in favor of granting the preliminary injunc- tion. Duluth and the State of Minnesota have an im- portant interest in protecting the welfare of their citizens through zoning. However, Northshor faces the suppression of its protected expression and has demonstrated a strong likelihood of success on its claim that the Statute violates the First Amendment. Furthermore, the public interest favors protecting First Amendment expression. See Mga Susrr, Inc. v. County of Benton. 853 F.Supp. 1147, 1154 (D.Minn.1994). Weighing [he above factors. all of which weigh in favor of granting a preliminary injunction enjoining the Statute, the Court concludes that a preliminary injunction is warranted. D. Security Federal Rule of Civil Procedure 65(r) requires an applicant for a preliminary injunction to post secur- ity "in such sum as the court deems proper, for the payment of such costs and damages as may be in- curred or suffered by any party who is found to have been wrongfully enjoined or restrained." Page I l [ 16] Northshor requests that the Court waive the se- curity requirement because the preliminary injunc- tion will cause no harm to Duluth. See Brrknka. 852 F.Supp. at 813 (waiving security requirement when "no demonstrable harm will befall [county) if it is wrongfully restrained from enforcing the code pending the outcome of this action;""plaintiff seeks to vindicate important first amendment rights;" and "[r]equiring it to provide a security could prevent judicial review of the code's constitutionality"). Du- luth has not addressed this issue or attempted to quantify any dollar amount of harm that it may face from a wrongly issued injunction. Because Duluth has not objected to Northshor's request to waive the security requirement, the Court exercises its discre- tion to waive the security requirement in this case. Accordingly, based upon the files, records, and pro- ceedings herein, IT IS HEREBY ORDERED: I. Plaintiffs' Motion for Preliminay Injunction and Motion for Temporary Restraining Order [Docket No. 2] is GRANTED as follows: a. Plaintiffs' motion for a preliminary injunction and motion for temporary restraining order against Defendant City of Minneapolis is WITHDRAWN. b. Plaintiffs' motion for a preliminary injunction and motion for *724 temporary restraining order against Defendant City of Duluth is GRANTED. c. Defendant City of Duluth is restrained and en- joined from taking any action, civil, criminal, or ad- ministrative, to enforce the provisions of Session Laws 2006, Chapter 240, or Duluth City Ordinance No. 9781, against Plaintiff Northshor Experience, Il~c. 3. This Order is effective upon the date recited be- low and shall remain in effect until this action is terminated, or until otherwise ordered by the Court. 4. The security requirement of Federal Rule of Civil Procedure Rule 65(c) is waived. D.Minn.,2006. Northshor Experience, Inc. v. City of Duluth, MN 442 F.Supp.2d 713 END OF DOCUMENT 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=SpIit&... 4/3/2008 Page 1 of 7 V~t~aw M.S.A. § 617.241 C Minnesota Statutes Annotated Currentness Crimes, Criminals (Ch. 609-624) '~(~ Chapter 617. Abortion; Obscenity; Houses of II1-fame (Refs & Annos) '~(~ Obscenity Page 1 •617.241. Obscene materials and performances; distribution and exhibition prohibited; penalty Subdivision 1. Definitions. For purposes of this section, the following terms have the meanings given them: (a) "Obscene" means that the work, taken as a whole, appeals to the prurient interest in sex and depicts or de- scribes in a patently offensive manner sexual conduct and which, taken as a whole, does not have serious liter- ary, artistic, political, or scientific value. In order to determine that a work is obscene, the trier of tact must find: (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 cor~iuct specifically defined by clause (bj in a patently offensive manner: and (iii) that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (b) "Sexual conduct" means any of the following: (i) An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an anima(. (ii) Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergar- ments or in a sexually revealing costume or the condition of being fettered, bound, or otherwise physically re- stricted on the part of one so clothed or who is nude. (iii) Masturbation, excretory functions, or lewd exhibitions of the genitals including any explicit, close-up rep- resentation of a human genital organ. (iv) Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a hu- man male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification. (c) "Community" means the political subdivision from which persons properly qualified to serve as jurors in a criminal proceeding are chosen. (d) "Work" means "material" or "performance." (e) "Material" means a book, magazine, pamphlet. paper, writing, card, advertisement, circular, print, pictw•e, photograph, motion picture film, videotape, script, image, instrument, statue, drawing, or other article. (f) "Performance" means a play, motion picture, dance, or other exhibition performed before an audience 2008 Thomson/West. No Claim to Orig. liS Gov. Works. http://web2.westlaw.cotn/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Page 2 of 7 M.S.A. § 617.241 Page 2 Subd. 2. Crime. It is unlawful for a person, knowing or with reason to know its content and character, to: (a) exhibit, sell, print, offer to sell, give away. circulate, publish, distribute or attempt to distribute any obscene material; or (b) produce, present, participate in, or direct an obscene performance. Subd. 3. Penalty. A person violating subdivision 2 is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year, or to payment of a fine of not more than $3,000, or both. Subd. 4. Second or subsequent violations. Whoever violates the provisions of subdivision 2 within five years of a previous conviction under that subdivision is guilty of a felony and may be sentenced to imprisonment for not more than two years, or to payment of a tine of not more than $1 Q.000, or both. CREDIT'(S ) Laws 1961, c. 664, § 1. Amended by Laws 1982, c. 604. § I, eff. May 1, 1982; Laws 1983, c. 204, § 9, eff. May 2 I , i 983; Laws 1984, c. 628, art. 3, § I I ,eff. May 3, 1984; Laws 1988, c. 406, § 1, eff. June 1, 1988. RULES OF CRIMINAL PROCEDURE <Section 480.059, Subd. 7, provides in part that statutes which relate to substantive criminal law found in chapter 617 remain in full force and effect notwithstanding the Kules of Criminal Procedure., HISTORICAL AND STATUTORY NOTES 2003 Main Volume Derivation: Laws 1959, c. 597, § 1. St.1957, § 617.24. St.1927, § 10187. Gen.St.1923, § 10187. Laws 1917, c. 24 I , § I . Gen.St.1913, § 8705. Rev.Laws 1905, § 4954. Gen.St.1894, §§ 6571, 6973. Laws 1893, c. 91, § 1. Pen.Code, § 277. Gen.St.Supp. 1879-88, c. 100, § 12a. Laws 1887, c. 56. Laws 1885, c. 268, § 1. Gen.St.1878, c. 100, § 12. Gen.St.1866, c. 100, § I I. Pub.St.1858, c. 96, § 11. Rev.St.(Terr.), c. 108, § ] 1. The 1982 amendatory act substituted "up to $5,(H)0 for the tirst offense and up to $10,000 for the second or a 2008 Thomson/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 4/3/2008 Planning Committee of City Council Meeting Summary -Adult Uses June 19, 2008 Planning Committee Members Alongi, Schultz, and Slavik met at 7:00 am on June 19, 2008 in the Community Room to discuss potential changes to the adult use ordinance. About 10 people attended the meeting. Discussion included the following: • Staff presented a comparison of various adult use ordinance restrictions from other cities. Those in attendance offered additional cities to review. • Staff presented maps depicting the affect of various setback regulations on the availability of land to operate adult uses. The City Attorney recommends allowing at least five percent of commercial\industrial property for adult uses. • Amortization of existing adult uses was discussed. The City Ordinance would need to be amended to outline a procedure for amortization. The Committee made the following recommendations: • Doing nothing was not an option; changes to the adult use ordinance are necessary. • The Hastings Industrial Park should not be rezoned to allow adult uses. • Prohibiting adult uses city wide is not recommended; the risk of losing a legal challenge is too great. Next Meeting: July 10`h 7:OOam in the Volunteer Room. Staff will revise the adult use comparison chart and present options for Committee action. Planning Committee of City Council Meeting Summary -Adult Uses May 29, 2008 Planning Committee Members Alongi, Schultz, and Slavik met at 7:00 am on May 29, 2008 in the Community Room to discuss potential changes to the adult use ordinance. About 10-15 people attended the meeting. Discussion included the following: • Council Committee will seek to strengthen existing ordinances regulating adult uses in the C-4 district. Staff will further review other adult use ordinances (Coates, Eden Valley, Woodbury) and report back on potential changes. • Council Committee questions allowing adult uses within the Industrial Park. • Council Committee questions banning adult uses entirely, citing legal concerns. • Those in attendance supported strengthening the existing ordinance. • Citizens United, a resident committee has formed. The group seeks to strengthen the adult use ordinances within Hastings and seeks additional adult use changes at the State Legislative level. Next Meeting: June 19`h 7:OOam in the Community Room. Staff will present options for strengthening the existing adult use ordinance. City of Hastings Planning Commission Minutes -August 25, 2008 Page 2 of 4 Chair Schmitt opened the Public Hearing at 7:05. Hearing no comments, the Public Hearing was closed at 7:05. Chair Schmitt commented on the legal being messy. Planning Director Hinzman agreed and stated that was the reason for the replat. Commissioner Zeyen inquired into the trail easement being recorded separate. Associate Planner Barker stated that a separate document describing the trail easement will be required because trail easements cannot be shown on a plat. Planning Director Hinzman stated that these easements will be recorded with the Final Plat at the County. Action by Planning Commission: Motion by Commissioner McInnis to approve the Preliminary and Final Plats for Riverfront Addition with the proposed trail easements. Seconded by Commissioner Peine. Upon vote taken, Ayes 6, Nays 0. Motion carried. City of Hastings -Ordinance Amendment #2007-52 -Adult Use Ordinance. Staff Report presented by Planning Director John Hinzman. Chair Schmitt opened the Public Hearing at 7:11. Kristy Nelson of Tim's Repair Shop spoke to the issue. Nelson explained that she was a part of developing the ordinance. She stated that the key items in the ordinance included the licensing fee along with the renewal of licenses, including licensing everybody including the dancers. In addition, she stated that prohibiting alcohol on site along with total nudity were key items. Nelson stated that the ordinance committee would have preferred to limit hours of operation to 11:00 pm or 12:00 am. However, she explained that the City Attorney did not feel there was a legal backing for these hours due to bars being allowed to stay open later. Nelson concluded that a lot of time was spent on the ordinance and she felt that each side made concessions. Chair Schmitt closed the Public Hearing at 7:15. He thanked the public for their input on the ordinance development. Commissioner Vaughan stated that there were certain distances Adult Uses needed to be from schools and businesses. He inquired if this included teaching classes. Planning Director Hinzman stated that there was no differentiation between private and public schools. Chair Schmitt inquired as to what happens if a school or church located to the center of the allowed area, throwing the percentages off. Planning Director Hinzman stated the ordinance City of Hastings Planning Commission Minutes -August 25, 2008 Page 3 of 4 will be revisited periodically. Chair Schmitt inquired if a regularly scheduled review period should be put into the ordinance and suggested two years. Planning Director Hinzman agreed and stated it may go along with Council adoption or be placed in the resolution. Commissioner McInnis thanked staff for the moratorium and Town Hall meetings. He stated his satisfaction with the end result. Commissioner McInnis commented that he felt the prohibition of liquor was a positive aspect of the Ordinance. He stated he agreed with a two year or maximum of three year review period. Commissioner McInnis stated that aone-year review period may be excessive. Commissioner Stevens asked if the Early Childhood Center relocated if that would make more land available. Commissioner Zeyen questioned if that space was actually a church. Kristy Nelson stated the space was Elder Care. Planning Director stated that there would still be a 500 foot residential buffer that would need to be met. Commissioner Stevens asked what the percentage of land was that needed to be available for _ Adult Uses. Planning Director Hinzman stated that it is 5%, which is a general number, not a state law. He further stated that this percentage was based on the comfort level of several attorneys as lawsuits have been lost on having less than 5% of availability. Commissioner Stevens asked if the new Ordinance met the percentages. Planning Director Hinzman stated it did. Commissioner Stevens inquired about 114.27, Item 4 regarding revocation of licenses for non sexual offenses. Chair Stevens asked if the words "relating to sexual offenses" should be added. Planning Director Hinzman agreed it would be a good clarification. Chair Schmitt stated that a business next door to the Adult Use may serve alcohol. He recommended changing 114.24 to state that no common walled space can sell liquor. Chair Schmitt asked if a recommendation was in order. Planning Director Hinzman stated that a recommendation would be necessary. He further stated that on September 2, a First Reading and Call for Public Hearing will occur at the City Council Meeting. The Public Hearing will be held on September 15. Action by Planning Commission: Motion by Commissioner Zeyen to approve the Adult Use Ordinance with the comments discussed. Seconded by Commissioner Vaughan. Upon vote taken, Ayes 6, Nays 0. Motion carried. Other Business Planning Director Hinzman updated the Commission past Council actions and on upcoming items.