Many communities in
Although many communities have sought to regulate sexually
oriented businesses, these efforts have often been controversial and equally
often unsuccessful. Much community sentiment against sexually oriented
businesses is an out growth of hostility to sexually explicit forms of
expression. Any successful strategy to combat sexually oriented businesses must
take into account the constitutional rights to free speech which limit
available remedies.
Only those pornographic materials which are determined to
be "obscene" have no constitutional protection. As explained later in
more detail, only that pornography which, according to community standards and
taken as a whole, "appeals to the prurient interest" (as opposed to
an interest in healthy sexuality), describes or depicts sexual conduct in a
"patently offensive way" and "lacks serious literary, artistic,
political or scientific value," can be prohibited or prosecuted. Miller v.
Other pornography and the businesses which purvey it can
only be regulated where a harm is demonstrated and the remedy is sufficiently
tailored to prevent that harm without burdening First Amendment rights. In
order to reduce or eliminate the impacts of sexually oriented businesses, each
community must find the balance between the dangers of pornography and the
constitutional rights to free speech. Each community must have evidence of
harm. Each community must know the range of legal tools which can be used to
combat the adverse impacts of pornography and sexually oriented businesses.
On
The Working Group heard testimony and conducted briefings
on the impacts of sexually oriented businesses on crime and communities and the
methods available to reduce or eliminate these impacts. Extensive research was
conducted to review regulation and prosecution strategies used in other states
and to analyze the legal ramifications of these strategies.
As testimony was presented, the Working Group reached a
consensus that a comprehensive approach is required to reduce or eliminate the
impacts of sexually oriented businesses. Zoning and licensing regulations are
needed to protect residents from the intrusion of "combat zone"
sexual crime and harassment into their neighborhoods. Prosecution of obscenity
has played an important role in each of the cities which have significantly
reduced or eliminated pornography. The additional threat posed by the
involvement of organized crime, if proven to exist, may justify the resources
needed for prosecution of obscenity or require use of a forfeiture or
racketeering statute.
The Working Group determined that it could neither advocate
prohibition of all sexually explicit material nor the use of regulation as a
pretext to eliminate all sexually oriented businesses. This conclusion is no
endorsement of pornography or the businesses which profit from it. The Working
Group believes much pornography conveys a message which is degrading to women
and an affront to human dignity. Commercial pornography promotes the misuse of
vulnerable people and can be used by either a perpetrator or a victim to
rationalize sexual violence. Sexually oriented businesses have a deteriorating
effect upon neighborhoods and draw involvement of organized crime.
Communities are not powerless to combat these problems. But
to be most effective in defending itself from pornography each community must
work from the evidence and within the law. The report of this Working Group is
designed to assist local communities in developing an appropriate and effective
defense.
The first section of the report discusses evidence that
sexually oriented businesses, and the materials from which they profit, have an
adverse impact on the surrounding communities. It provides relevant evidence
which local communities can use as part of their justification for reasonable
regulation of sexually oriented businesses.
The Working Group also discussed the relationship between
sexually oriented businesses and organized crime. Concerns about these broader
effects of sexually oriented businesses underlie the Working Group's
recommendations that obscenity should be prosecuted and the tools of obscenity
seized when sexually oriented businesses break the law.
The second section of this report describes strategies for
regulating sexually oriented businesses and prosecuting obscenity. The report
presents the principal alternatives, the recommendations of the Working Group
and some of the legal issues to consider when these strategies are adopted.
The goal of the Attorney General's Working Group in
providing this report is to support and assist local communities who are
struggling against the blight of pornography. When citizens, police officers
and city officials are concerned about crime and the deterioration of
neighborhoods, each of us lives next door. No community stands alone.
The Attorney
General's Working Group on the Regulation of Sexually Oriented Businesses makes
the following recommendations to assist communities in protecting themselves
from the adverse effects of sexually oriented businesses. Some or all of these
recommendations may be needed in any given community. Each community must
decide for itself the nature of the problems it faces and the proposed
solutions which would be most fitting.
(1) City and county attorneys' offices in the
Twin Cities metropolitan area should designate a prosecutor to pursue obscenity
prosecutions and support that prosecutor with specialized training.
(2) The Legislature
should consider funding a pilot program to demonstrate the efficacy of
obscenity prosecution and should encourage the pooling of resources between
urban and suburban prosecutor offices by making such cooperation a condition
for receiving any such grant funds.
(3) The Attorney
General should provide informational re- sources for city and county attorneys
who prosecute obscenity crimes.
(4) Obscenity
prosecutions should begin with cases involving those materials which most
flagrantly offend community standards.
(5) The Legislature
should amend the present forfeiture statute to include as grounds for
forfeiture all felonies and gross misdemeanors pertaining to solicitation,
inducement, promotion or receiving profit from prostitution and operation of a
"disorderly house."
(6) The Legislature
should consider the potential for a RICO-like statute with an obscenity
predicate.
(7) Prosecutors
should use the public nuisance statute to enjoin operations of sexually
oriented businesses which repeatedly violate laws pertaining to prostitution,
gambling or operating a disorderly house.
(8) Communities
should document findings of adverse secondary effects of sexually oriented
businesses prior to enacting zoning regulations to control these uses so that
such regulations can be upheld if challenged in court.
(9) To reduce the
adverse effects of sexually oriented businesses, communities should adopt
zoning regulations which set distance requirements between sexually oriented
businesses and sensitive uses, including but not limited to residential areas,
schools, child care facilities, churches and parks.
(10) To reduce
adverse impacts from concentration of these businesses, communities should
adopt zoning ordinances which set distances between sexually oriented
businesses and between sexually oriented businesses and liquor establishments,
and should consider restricting sexually oriented businesses to one use per
building.
(11) Communities
should require existing businesses to comply with new zoning or other
regulation of sexually oriented businesses within a reasonable time so that
prior uses will conform to new laws.
(12) Prior to
enacting licensing regulations, communities should document findings of adverse
secondary effects of sexually oriented businesses and the relationship between
these effects and proposed regulations so that such regulations can be upheld
if challenged in court.
(13) Communities
should adopt regulations which reduce the likelihood of criminal activity
related to sexually oriented businesses, including but not limited to open
booth ordinances and ordinances which authorize denial or revocation of
licenses when the licensee has committed offenses relevant to the operation of
the business.
(14) Communities
should adopt regulations which reduce exposure of the community and minors to
the blighting appearance of sexually oriented businesses, including but not
limited to regulations of signage and exterior design of such businesses, and
should enforce state law requiring sealed wrappers and opaque covers on
sexually oriented material.
The Working Group reviewed evidence from studies conducted
in
In 1980, on direction from the Minneapolis City Council,
the
The study concluded that there was a close association
between sexually oriented businesses, high crime rates and low housing values
in a neighborhood. When the data was reexamined using control variables such as
the mean income in the neighborhood to determine whether the association proved
causation, it was unclear whether sexually oriented businesses caused a decline
in property values. The
However, the
(1) The
effects of sexually oriented businesses on the crime rate index is positive and
significant regardless of which control variable is used.
(2)
Sexually oriented businesses continue to be associated with higher crime rates,
even when the control variables' impacts are considered simultaneously.
According to the statistical analysis conducted in the
Minneapolis study, the addition of one sexually oriented business to a census
tract area will cause an increase in the overall crime rate index in that area
by 9.15 crimes per thousand people per year even if all other social factors
remain unchanged.
In 1978, the St. Paul Division of Planning and the
Minnesota Crime Control Planning board conducted a study of the relationship
between sex-oriented and alcohol-oriented adult entertainment businesses and
neighborhood blight. This study looked at crime rates per thousand and median
housing values over time as indices of neighborhood deterioration. The study
combined sex-oriented and alcohol-oriented businesses, so its conclusions are
only suggestive of the effects of sexually oriented businesses alone.
Nevertheless, the study reached the following important conclusions:
(1) There is
a statistically significant correlation between the location of adult
businesses and neighborhood deterioration.
(2) Adult
entertainment establishments tend to locate in somewhat deteriorated areas.
(3)
Additional relative deterioration of an area follows location of an adult
business in the area.
(4) There
is a significantly higher crime rate associated with two such businesses in an
area than is associated with only one adult business.
(5)
Housing values are also significantly lower in an area where there are three
adult businesses than they are in an area with only one such business.
Similar
conclusions about the adverse impact of sexually oriented businesses on the
community were reached in studies conducted in cities across the nation.
In 1983,
the City of
The Study
found the following:
(1) The
appraisers overwhelmingly (80%) felt that an adult bookstore located in a
neighborhood would have a negative impact on residential property values within
one block of the site.
(2) The
real estate experts also overwhelmingly (71%) believed that there would be a
detrimental effect on commercial property values within the same one block
radius.
(3) This
negative impact dissipates as the distance from the site increases, so that
most appraisers believed that by three blocks away from an adult bookstore, its
impact on property values would be minimal.
(1) Major
crimes, such as criminal homicide, rape, robbery, assault, burglary and
larceny, occurred at a rate that was 23 percent higher in those areas which had
sexually oriented businesses.
(2) The
sex-related crime rate, including rape, indecent exposure and child
molestation, was found to be 77 percent higher in those areas with sexually
oriented businesses.
The Planning Department of Phoenix,
(1)
Property crimes were 43 percent higher in those areas which contained a
sexually oriented business.
(2) The
sex crime rate was 500 percent higher in those areas with sexually oriented
businesses.
(3) The
study area with the greatest concentration of sexually oriented businesses had
a sex crimes rate over 11 times as large as a similar area having no sexually
oriented businesses.
A study
released by the Los Angeles Police Department in 1984 supports a relationship
between sexually oriented businesses and rising crime rates. This study is less
definitive, since it was not designed to use similar areas as a control. The
study indicated that there were 11 sexually oriented adult establishments in
the
In
The neighborhood, as a whole, shows signs of significant
distress, including the highest unemployment rates in the city, the highest
percentage of families below the poverty line in the city, the lowest median
family income and the lowest percentage of high school and college graduates.
(See 40-Acre Study on Adult Entertainment, St. Paul Department of Planning and
Economic Development, Division of Planning, 1987, at 19.) It would be difficult
to attribute these problems in any simple way to sexually oriented businesses.
However, it is likely that there is a relationship between
the concentration of sexually oriented businesses and neighborhood crime rates.
The St. Paul Police Department has determined that
The location of sexually oriented businesses has also created
a perception in the community that this is an unsafe and undesirable part of
the city. In 1983, Western State Bank, which is currently located across the
street from an adult bookstore, hired a research firm to survey area residents
regarding their preferred location for a bank and their perceptions of
different locations. A sample of 305 people were given a list of locations and
asked, "Are there any of these locations where you would not feel safe
conducting your banking business?"
No more than 4 percent of the respondents said they would
feel unsafe banking at other locations in the city. But 36 percent said they
would feel unsafe banking at Dale and University, the corner where the sexually
oriented businesses are concentrated.
The Working Group reviewed the 1987 40-Acre Study on Adult
Entertainment prepared by the Division of Planning in
Residents in the University/Dale area report frequent
sex-related harassment by motorists and pedestrians in the neighborhood.
Although it cannot be proved that the harassers are patrons of adult
businesses, it is reasonable to suspect such a connection. Moreover,
neighborhood residents submitted evidence to the Planning Commission in the
form of discarded pornography literature allegedly found in the streets,
sidewalks, bushes and alleys near adult businesses. Such literature is sexually
very explicit, even on the cover, and under the present circumstances becomes
available to minors even though its sale to minors is prohibited.
The Working Group heard testimony that a concentration of
sexually oriented businesses has serious impacts upon the surrounding
neighborhood. The Working Group heard that pornographic materials are left in
adjacent lots. One person reported to the police that he had found 50 pieces of
pornographic material in a church parking lot near a sexually oriented
business. Neighbors report finding used condoms on their lawns and sidewalks
and that sex acts with prostitutes occur on streets and alleys in plain view of
families and children. The Working Group heard testimony that arrest rates
understate the level of crime associated with sexually oriented businesses.
Many robberies and thefts from "johns" and many assaults upon
prostitutes are never reported to the police.
Prostitution also results in harassment of neighborhood
residents. Young girls on their way to school or young women on their way to
work are often propositioned by johns. The Flick theater caters to homosexual
trade, and male prostitution has been noted in the area. Neighborhood boys and
men are also accosted on the street. A police officer testified that one resident
had informed him that he found used condoms in his yard all the time. Both his
teenage son and daughter had been solicited on their way to school and to work.
The Working Group heard testimony that in the Frogtown
neighborhood, immediately north of the University-Dale intersection in
The Working Group made some inquiry to determine to what
extent smaller cities outside the Twin Cities Metropolitan area suffered
adverse impacts of sexually oriented businesses. The Working Group was informed
by the chiefs of police of
Information presented to the Working Group indicates that
community impacts of sexually oriented businesses are primarily a function of
two variables, proximity to residential areas and concentration. Property
values are directly affected within a small radius of the location of a
sexually oriented business. Concentration may compound depression of property
values and may lead to an increase in crime sufficient to change the quality of
life and perceived desirability of property in a neighborhood.
The evidence suggests that the impacts of sexually oriented
businesses are exacerbated when they are located near each other. Police
officers testified to the Working Group that "vice breeds vice." When
sexually oriented businesses have multiple uses (i.e., theater, bookstore, nude
dancing, peep booths), one building can have the impact of several separate
businesses. The Working Group heard testimony that concentration of sexually
oriented businesses creates a "war zone" which serves as a magnet for
people from other areas who "know" where to find prostitutes and
sexual entertainment. The presence of bars in the immediate vicinity of
sexually oriented businesses also compounds impacts upon the neighborhood.
The Attorney General's Working Group believes that
regulatory strategies designed to reduce the concentration of sexually oriented
businesses, insulate residential areas from them, and reduce the likelihood of
associated criminal activity would constitute a rational response to evidence
of the impacts which these businesses have upon local communities.
Infiltration of organized crime into sexually oriented
businesses reinforces the need for prosecution of obscenity and requires
specific regulatory or law enforcement tools. The Working Group attempted to
assess both the present and potential relationship between organized crime and
sexually oriented businesses.
The Working Group heard testimony from a witness who had
been prosecuting obscenity cases for the past thirteen years that many sexually
oriented businesses have out-of-town absentee owners. If the manager of a local
business is prosecuted on an obscenity charge, his testimony may make it
possible to pierce the corporate veil and identify the true owners.
The Working Group heard testimony that an organized crime
entity may operate somewhat like a franchisor. In order to stay in business,
the local manager of a sexually oriented business may have to pay fees to
organized crime. The makers and wholesalers of pornographic materials are also
likely to be involved with organized crime.
The Working Group conducted additional research to assess
the relationship between sexually oriented businesses and organized crime. The
Working Group was informed by prosecutors of obscenity that there were many
ways in which organized crime entities could derive a benefit from sexually
oriented businesses. There is a large profit margin in pornography. The
presence of coin-operated peep booths provides an opportunity to launder money.
Cash obtained from illegal activities, such as prostitution or narcotics, can
be explained as the income of peep booths. Cash income can also escape
taxation, in violation of law.
Although it is clear that organized crime is involved to
some degree in the pornography industry, various sources reach different
conclusions as to the depth and extent of this involvement. Part of the
difference in assessment is based on differences in the way the term
"organized crime" is defined. Authorities who restrict their
definition of organized crime to the highly organized ethnic hierarchy known as
La Cosa Nostra (LCN) tend to find fewer links than those who define the term to
include other organized criminal enterprises. Where there has been intensive
law enforcement and prosecution, it is more likely that linkage between
sexually oriented businesses and organized crime figures will be evident.
The Working Group has adopted the definition of organized
crime contained in
Recent federal indictments of James G. Hafiz in
Mohney, in turn, has been linked with national organized
crime enterprises. A 1977 report of the United States Justice Department
stated:
It is believed that Harry V. Mohney of
U.S. Justice Dep't, Organized Crime Involvement in
Pornography, reprinted in the Attorney General's Comm'n on Pornography
(hereinafter "Pornography Commission"), 2 Final Report at 1229-30
(1986).
Organized crime has the potential to infiltrate
The Pornography Commission reported that the
The FBI concluded in 1978:
Information obtained . . . points out the vast control of
the multi-million dollar pornography business in the United States by a few
individuals with direct connections with what is commonly known as the
organized crime establishment in the United States, specifically, La Cosa
Nostra. . . Information received from sources of this bureau indicates that
pornography is [a major] income maker for La Cosa Nostra in the
A brief survey of 69 FBI field offices conducted in 1985
found that about three-quarters of those offices could not verify that
traditional organized crime families were involved in the manufacture or
distribution of pornography. Several offices did, however, report some
involvement by members and associates of organized crime.
Stanley Ronquest, Jr., a supervisory FBI special agent for
traditional organized crime at FBI headquarters in
In my opinion, based upon twenty three years of
experience in pornography and obscenity investigations and study, it is
practically impossible to be in the retail end of pornography industry [today]
without dealing in some fashion with organized crime either the mafia or some
other facet of non-mafia never-the-less [sic] highly organized crime.
Thomas Bohling of the Chicago Police Department Organized
Crime Division, Vice Control Section, told the Pornography Commission that
"it is the belief of state, federal and local law enforcement that the
pornography industry is controlled by organized crime families. If they do not
own the business outright, they most certainly extract street tax from
independent smut peddlers."
The Pornography Commission stated that it had been advised
by Los Angeles Police Chief Daryl F. Gates that "organized crime families
from
The Pornography Commission was told by Jimmy Fratianno,
described by the Commission as a member of LCN, "that large profits have
kept organized crime heavily involved in the obscenity industry."
The Pornography Commission concluded that "organized
crime in its traditional LCN forms and other forms exerts substantial influence
and control over the obscenity industry. Though a number of significant
producers and distributors are not members of LCN families, all major producers
and distributors of obscene material are highly organized and carry out illegal
activities with a great deal of sophistication."
The Pornography Commission reported that Michael George
Thevis, reportedly one of the largest pornographers in the
Although the Pornography Commission report has been
criticized for relying on the testimony of unreliable informants in drawing its
conclusions finding links between pornography and organized crime (See Scott, Book Reviews, 78 J. Crim. L.
& Criminology 1145, 1158-59 (1988)), its conclusions find additional
support in recent state studies.
The California Department of Justice recently reported
that:
As long as control over pornography distribution is
contested, and organized crime figures continue their involvements in the
business, the pornography industry will remain of interest to law enforcement
officials statewide.
Bureau of Organized Crime and Criminal Intelligence,
Department of Justice, State of California, Organized Crime in California 1987:
Annual Report to the California Legislature at 59-62 (1988).
The Pennsylvania Crime Commission similarly determined in a
1980 report that most pornography stores examined were affiliated or owned by
one of three men who had ties with "nationally known pornography figures
who are members or associates of organized crime families."
For example, Reuben Sturman, a leading pornography industry
figure based in
Evidence of the vulnerability of sexually oriented
businesses to organized crime involvement underscores the importance of
criminal prosecution of these businesses when they engage in illegal
activities, including distribution of obscenity and support of prostitution.
Prosecution can increase the risk and reduce the profit margin of conducting
illegal activities. It may also disclose organized crime association with local
pornography businesses and increase the costs of criminal enterprise in
In addition to prosecution, forfeiture of property used in
the illegal activities related to sexually oriented businesses can cut deeply
into profits. Regulation to permit license revocation for conviction of
subsequent crimes may also expose and increase control over criminal
enterprises related to sexually oriented businesses.
The regulation of many sexually oriented businesses, like
other businesses dealing in activity with an expressive component, is
circumscribed by the First Amendment of the United States Constitution.[3]
Nonetheless, the First Amendment does not impose a barrier to the prosecution
of obscenity, which is not protected by the First Amendment, or to reasonable
regulation of sexually oriented businesses if the regulation is not designed to
suppress the content of expressive activity and is sufficiently tailored to
accomplish the regulatory purpose.
The Working Group believes that communities have more
prosecutorial and regulatory opportunities than they may currently recognize.
The purpose of this section of the Report is to identify and recommend
enforcement and regulatory opportunities. Of course, each community must decide
on its own how to balance its limited resources and the wide variety of
competing demands for such resources.
Obscene material is not protected by the First Amendment. Miller v.
The Working Group believes that
The Working Group believes this is not because the sale or
distribution of obscene publications in
Obscenity, however, should no longer be viewed as a
victimless crime.[5]
There is mounting evidence that sexually oriented businesses are, as described
earlier in this report, often associated with increases in crime rates and a
decline in the quality of life of neighborhoods in which they are located.
Further, as discussed previously, when there is no prosecution of obscenity,
large cash profits make pornographic operations very attractive to members of
organized crime. The Working Group thus believes that prosecution of obscenity,
particularly cases involving children, violence or bestiality, should assume a
higher priority for law enforcement officials.
In addition, many of the difficulties faced when
prosecuting obscenity can be addressed by adequate training and assistance. In
order to prove that material is obscene, a prosecutor must prove:
(i) that the average person, applying contemporary
community standards[,] would find that the work, taken as a whole, appeals to
the prurient interest in sex;
(ii) that the work depicts sexual conduct . . . in a
patently offensive manner; and
(iii) that the work, taken as a whole, lacks serious
literary, artistic political, or scientific value.
Minn. Stat. § 617.241, subd. 1(a)(i-iii) (1988). This
statutory standard was drawn to be consistent with constitutional standards set
forth in Miller, supra.
To be sure, prosecutors face a number of hazards in
prosecuting obscenity. They include inadequate training in this specialized
area of law, attempts by defense attorneys to remove jurors who find
pornography offensive, the offering into evidence of polls and surveys through
expert testimony to prove tolerant community standards, efforts to guide jurors
with jury instructions favorable to the defense, and discouragement with
unsuccessful prosecutions.
But the hazards can be overcome. Alan E. Sears, former
executive director of the U.S. Attorney General's Commission on Pornography,
has stated:
Prosecutors can
successfully obtain obscenity convictions in virtually any jurisdiction in the
Sears, How To Lose A
Pornography Case, The CDL Reporter (n.d.).
The Working Group heard testimony from prosecutors who have
pursued obscenity cases nationally regarding effective ways to prosecute
obscenity cases. Materials can be bought or rented, rather than seized under
warrant. In the absence of survey data, community standards can be left to the
wisdom of the jury. In that case, experts should be prepared to testify if the
defense attempts to make a statistical case that the material is not obscene.
Prosecution of obscenity is also likely to be most effective if initial
prosecutions focus on materials which are patently offensive to the community,
such as those involving children, violence or bestiality.
The experience of other cities has demonstrated that
vigorous and sustained enforcement of obscenity statutes can sharply reduce or
virtually eliminate sexually oriented businesses.
(1) City and county
attorneys' offices in the Twin Cities metropolitan area should designate a
prosecutor to pursue obscenity prosecutions and support that prosecutor with
specialized training.
(2) The Legislature
should consider funding a pilot program to demonstrate the efficacy of
obscenity prosecution and should encourage the pooling of resources between
urban and suburban prosecuting offices by making such cooperation a condition
of receiving any such grant funds.
(3) The Attorney
General should provide informational resources for city and county attorneys
who prosecute obscenity crimes.
(4) Obscenity
prosecutions should concentrate on cases that most flagrantly offend community
standards.
In addition to traditional criminal prosecutions, use of
RICO statutes and criminal and civil forfeiture actions may also prove to be
successful against obscenity offenders. By attacking the criminal organization
and the profits of illegal activity, such actions can provide a strong
disincentive to the establishment and operation of sexually oriented
businesses. For example, the federal government and a number of the
twenty-eight states which have enacted racketeer influenced and corrupt
organization (RICO) statutes include obscenity offenses as predicate crimes.
Generally speaking, to violate a RICO statute, a person must acquire or
maintain an interest in or control of an enterprise, or must conduct the
affairs of an enterprise through a "pattern of criminal activity."
That pattern of criminal activity may include obscenity violations, which in
turn can expose violators to increased fines and penalties as well as
forfeiture of all property acquired or used in the course of a RICO violation.
These statutes generally enable prosecutors to obtain either criminal or civil
forfeiture orders to seize assets and may also be used to obtain injunctive
relief to divest repeat offenders of financial interests in sexually oriented
businesses. See 18 U.S.C. §§ 1961-68 (West Supp. 1988). RICO statutes may be particularly effective in
dismantling businesses dominated by organized crime, but they may be applied
against other targets as well.
The Working Group believes that
It has been argued that a RICO or forfeiture statute based
on obscenity crime violations threatens to "chill protected speech"
because it would permit prosecutors to seize non-obscene materials from
distributors convicted of violating the obscenity statute. American Civil
Liberties
However, a narrow majority of the United States Supreme
Court recently held that there is no constitutional bar to a state's inclusion
of substantive obscenity violations among the predicate offenses for its RICO
statute. Sappenfield v.
However, in a companion case, the Court also invalidated a
pretrial seizure of a bookstore and its contents after only a preliminary
finding of "probable cause" to believe that a RICO violation had
occurred.
The Court did not specifically reach the fundamental
question of whether seizure of the assets of a sexually oriented business such
as a bookstore is constitutionally permissible once a RICO violation is proved.
The Court explained:
[F]or the purposes of
disposing of this case, we assume without deciding that bookstores and their
contents are forfeitable (like other property such as a bank account or yacht)
when it is proved that these items are property actually used in, or derived
from, a pattern of violations of the state’s obscenity laws.
Although
The following crimes are not included among the crimes
which can justify seizure of property and profits: solicitation, inducement, or
promotion of a person between the ages of 13 and 16 to practice prostitution
(Minn. Stat. § 609.322, subd. lA); solicitation, inducement or promotion of a
person 18 years of age or older to practice prostitution (Minn. Stat. §
609.322, subd. 3); receiving profit derived from prostitution (Minn. Stat. §
609.323); owning, operating or managing a "disorderly house," in
which conduct habitually occurs in violation of laws pertaining to liquor,
gambling, controlled substances or prostitution (Minn. Stat. § 609.33).
Although its reach would be much more limited, the
legislature should also consider providing for forfeiture of property used to
commit an obscenity offense or which represents the proceeds of obscenity offenses.
Under the holding in Fort Wayne Books, Inc. v.
There are no comparable constitutional issues raised by
enacting or enforcement of forfeiture statutes based on violations of
prostitution, gambling, or liquor laws. The legislature may require sexually
oriented businesses which violate these laws to forfeit their profits. The
Working Group believes that such an expansion of forfeiture laws would give
prosecutors greater leverage to control the operation of those businesses which
pose the greatest danger to the community.
(1) The legislature should
amend the present forfeiture statute to include as grounds for forfeiture all
felonies and gross misdemeanors pertaining to solicitation, inducement,
promotion or receiving profit from prostitution and operation of a
"disorderly house."
(2) The
legislature should consider the potential for a RICO-like statute with an
obscenity predicate.
Nuisance injunctions to close down sexually oriented
businesses which repeatedly violate laws pertaining to prosecution, gambling or
disorderly conduct are potentially powerful regulatory devices. The fact that a
building in which prostitution or other offenses occur houses a sexually
oriented business does not shield the facility from application of nuisance law
based on such offenses. Arcara v. Cloud
Books, Inc., 478 U.S.697, 106 S.Ct. 3172 (1986) (First
Amendment does not shield adult bookstore from application of New York State
nuisance law designed in part to close places of prostitution).
Although the Working Group believes that nuisance
injunctions with an obscenity predicate would be effective in controlling
sexually oriented businesses, such provisions would probably be
unconstitutional under current U.S. Supreme Court decisions. Six Supreme Court
justices joined in the Arcara result,
but two of them–Justices O'Connor and Stevens–concurred with these words of
caution:
If, however, a city were to use a nuisance statute as a
pretext for closing down a book store because it sold indecent books or because
of the perceived secondary effects of having a purveyor of such books in the
neighborhood, the case would clearly implicate First Amendment concerns and
require analysis under the appropriate First Amendment standard of review.
Because there is no suggestion in the record or opinion below of such
pretextual use of the
Arcara, supra,
478
In an earlier case, Vance
v. Universal Amusement,
445
The Court's recent holdings in Sappenfield and Fort
Wayne Books, Inc. give no indication that the Court would now
look more favorably upon an injunction to close down a facility which sold
obscene materials. The Court assumed without deciding that forfeiture of
bookstore assets could be constitutional in a RICO case. But, in making this
assumption, the Court distinguished forfeiture of assets under RICO from a
general restraint on presumptively protected speech. The court approved the
reasoning of the Indiana Supreme Court that, "The remedy of forfeiture is
intended not to restrain the future distribution of presumptively protected
speech but rather to disgorge assets acquired through racketeering
activity." Fort Wayne Books, Inc. at 4185. The Court assumed that RICO provisions
could be upheld on the basis that "adding obscenity-law violations to the
list of RICO predicate crimes was not a mere rule to sidestep the First
Amendment."
scrutiny.
(1) Prosecutors
should use the public nuisance statute to enjoin operations of sexually
oriented businesses which repeatedly violate laws pertaining to prostitution,
gambling or operating a disorderly house.
Zoning ordinances can be adopted to regulate the location
of sexually oriented businesses without violating the First Amendment. Such
ordinances can be designed to disperse or concentrate sexually oriented
businesses, to keep them at designated distances from specific buildings or
areas, such as churches, schools and residential neighborhoods or to restrict
buildings to a single sexually oriented usage. Because zoning is an important
regulatory tool when properly enacted, the Working Group believes a careful
explanation of the law and a review of potential problems in drafting zoning
ordinances may be helpful to communities considering zoning to regulate
sexually oriented businesses.
The U.S. Supreme Court upheld the validity of municipal
adult entertainment zoning regulations in Young
v. American Mini Theaters, Inc., 427 U.S. 50, 96 S. Ct. 2440 (1976), and City of Renton v. Playtime Theaters, Inc.,
475 U.S. 41, 106 S. Ct. 926 (1986).[8]
In Young, the
Court upheld the validity of
Writing for a plurality of four, Justice Stevens upheld the
zoning ordinance as a reasonable regulation of the place where adult films may
be shown because (1) there was a factual basis for the city's conclusion that
the ordinance would prevent blight; (2) the ordinance was directed at
preventing "secondary effects" of adult-establishment concentration
rather than protecting citizens from unwanted "offensive" speech; (3)
the ordinance did not greatly restrict access to lawful speech, and (4)
"the city must be allowed a reasonable opportunity to experiment with
solutions to admittedly serious problems."
Justice Stevens did not expressly describe the standard he
had used, but it was clear that the plurality would afford non-obscene sexually
explicit speech lesser First Amendment protection than other categories of
speech. However, four dissenters and one concurring justice concluded that the
degree of protection afforded speech by the First Amendment does not vary with
the social value ascribed to that speech. In his concurring opinion, Justice
Powell stated that the four-part test of United
States v. O'Brien, 391 U.S.
367, 377, 88 S. Ct. 1673, 1679 (1968), should apply. Powell explained:
Under that test, a governmental regulation is
sufficiently justified, despite its incidental impact upon First Amendment
interest, “if it is within the constitutional power of the Government; if it
furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the
incidental restriction on . . . First Amendment freedom is no greater than is
essential to the furtherance of that interest.”
427
Perhaps because Justice Stevens' plurality opinion did not
offer a clearly articulated standard of review, post-Young courts often applied
the O'Brien test advocated by Justice Powell in his concurring opinion. Many
ordinances regulating sexually oriented businesses were invalidated under the O'Brien test. See R.M. Stein, Regulation of
Adult Businesses through Zoning After Renton,
18 Pac. L.J. 351, 360 (1987) ("consistently invalidated"); S.A.
Bender, Regulating Pornography Through
Zoning: Can We "Clean Up"
Applying Young,
the Eighth Circuit Court of Appeals invalidated a zoning ordinance adopted by
the city of
The Eighth Circuit ruled that the
In
Justice Rehnquist, writing for a Court majority that
included Justices Stevens and Powell, stated that the
The Supreme Court found that
The First Amendment
does no require a city, before enacting such an ordinance, to conduct new
studies or produce evidence independent of that already generated by other
cities, so long as whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city addresses. That was the
case here. Nor is our holding, affected by the fact that Seattle ultimately
chose a different method of adult theater zoning than that chosen by Renton, since Seattle’s choice of a
different remedy to combat the secondary effects of adult theaters does not
call into question either Seattle’s identification of those secondary effects
or the relevance of Seattle’s experience to Renton.
Rehnquist's inquiry then addressed the means chosen to
further
His comments on
It is not our function to appraise the wisdom of [the
city’s] decision to require adult theaters to be separated rather than
concentrated in the same areas . . . [The] city must be allowed a reasonable
opportunity to experiment with solutions to admittedly serious problems.
As to the "narrowly tailored" requirement,
Rehnquist found that the
The second prong of Renton's
"time place, manner" inquiry–the availability of alternative avenues
of communication–was satisfied by the district court's finding that 520 acres
of land, or more than five percent of Renton,
were left available for adult-entertainment uses, even though some of that
developed area was already occupied and the undeveloped land was not available
for sale or lease. A majority of the Court found:
That [adult theater owners] must fend for themselves in
the real estate market, on an equal footing with other prospective purchasers
and lessees, does not give rise to a First Amendment violation . . . In our
view, the First Amendment requires only that Renton refrain from effectively
denying [adult theater owners] a reasonable opportunity to open and operate an
adult theater within the city, and the ordinance before us easily meets this
requirement.
ld. at 54, 106
Unlike Young, the
This section first describes some of the legal considerations
which communities must keep in mind in drafting zoning ordinances for sexually
oriented businesses. Then, some suggestions are provided, based on evidence
reviewed by the Working Group, of types of zoning which can be enacted to
reduce the secondary effects of sexually oriented businesses.
Sexually oriented speech which is not obscene cannot be
restricted on the basis of its content without running afoul of the First
Amendment. The justification for regulating sexually oriented businesses is
based on proof that the zoning is needed to reduce secondary effects of the
businesses on the community.
Since
On the other hand, it is not necessary for each
municipality to conduct research independent of that already generated by other
cities. The
The first section of this report summarizes evidence from
various cities documenting the secondary effects of sexually oriented
businesses. Following
Courts also evaluate whether zoning of sexually oriented
businesses is merely a pretext for prohibition by reviewing the alternative
locations which remain for a sexually oriented business to operate under the
zoning scheme. A municipality must "refrain from effectively denying . . .
a reasonable opportunity to open and operate" a sexually oriented
business. Renton, supra, 476
Access may be regarded as unduly restricted if adult
entertainment zones are unreasonably small in area or if the number of
locations is unreasonably few. There is no set amount of land or number of
locations constitutionally required. The
Whether .058 square miles constituting .23 of 1 percent of
the land area within the city's central business zone is sufficient is not
clear. See Alexander v. The City of
The sufficiency of sites available for adult entertainment
uses may be measured in relation to a number of factors. See, e.g., Alexander II, supra, slip op. at 22-23 (insufficient if
relocation site owners refuse to sell or lease); International Food & Beverage Systems, Inc., 794 F.2d 1520, 1526 (11th Cir. 1986)
(suggesting number of sites should be determined by reference to community
needs, incidence of establishments in other cities, goals of city plan); Basiardanes v. City of Galveston,
682 F.2d 1203, 1209 (5th Cir. 1982) (pre-Renton case striking zoning regulation
restricting adult theaters to industrial areas that were "largely a
patchwork of swamps, warehouses, and railroad tracks . . . lack[ing] access
roads and retail establishments").
However, the fact that land zoned for adult establishments
is already occupied or not currently for sale or lease will not invalidate a
zoning ordinance. Renton, supra, 475
Another factor that may be examined by some courts is the
distance requirement established by an adult entertainment zoning ordinance. In
SDJ, Inc. v. Houston,
837 F.2d 1268 (5th Cir. 1988), the Court was asked to invalidate a 760-foot
distancing requirement on the ground that the city had not proved that 760
feet, as opposed to some other distance, was necessary to serve the city's
interest.
The Court found that an adult entertainment zoning
ordinance is "sufficiently well tailored if it effectively promotes the
government's stated interest" and declined to "second-guess" the
city council. Houston, supra, 837
F.2d at 1276.
Courts have sustained both requirements that sexually
oriented businesses be located at specified distances from each other, see Young, supra, (upholding distance
requirement of 1000 feet between sexually oriented businesses), and
requirements that sexually oriented businesses be located at fixed distances
from other sensitive uses, see Renton, supra, (upholding distance requirement
of 1000 feet between sexually oriented businesses and residential zones,
single-or-multiple family dwellings, churches, parks or schools).
The Working Group heard testimony that when an ordinance
establishes distances between sexually oriented uses, an additional regulation
may be needed to prevent operators of these businesses from defeating the
intent of the regulation by concentrating sexually oriented businesses of
various types under one roof, as in a sexually oriented mini-mall. The city of
The experience with multiple-use sexually oriented
businesses at the University-Dale intersection suggests that these businesses
have a greater potential for causing neighborhood problems than do single-use
sexually oriented businesses. Following
Zoning ordinances can require existing sexually-oriented
businesses to close their operations provided they do not foreclose the
operation of such businesses in new locations. Under such provisions, an
existing business is allowed to remain at its present location, even though it
is a non-conforming use, for a limited period.
The Minnesota Supreme Court has explained the theory this
way:
The theory behind this
legislative device is that the useful life of the nonconforming use corresponds
roughly to the amortization period, so that the owner is not deprived of his
property until the end of its useful life. In addition, the monopoly position
granted during the amortization period theoretically provides the owner with
compensation for the loss of some property interest, since the period specified
rarely corresponds precisely to the useful life of any particular structure
constituting the nonconforming use.
Naegele Outdoor
Advertising Co. v.
Such provisions applied to sexually oriented businesses
have been said to be "uniformly upheld." Dumas v. City of Dallas, 648 F.
Supp. 1061, 1071 (N.D. Tex. 1986), aff'd,
FW/PBS, Inc. v. City of
As detailed in the first section of this report, there are
significant secondary impacts upon communities related to the location of
sexually oriented businesses. These impacts are intensified when sexually
oriented businesses are located in residential areas or near other sensitive
uses and when sexually oriented businesses are concentrated near each other or
near alcohol oriented businesses. The Working Group believes that evidence from
studies such as those described in the first section of this report and
anecdotal evidence from neighborhood residents and police officers should be
used to support the need for zoning ordinances which address these problems.
(1) Communities should document findings of
adverse secondary effects of sexually oriented businesses prior to enacting
zoning regulations to control these uses so that such regulations can be upheld
if challenged in court.
(2) To reduce the
adverse effects of sexually oriented businesses, communities should adopt
zoning regulations to set distance requirements between sexually oriented
businesses and sensitive uses, including but not limited to residential areas,
schools, child care facilities, churches and parks.
(3) To reduce
adverse impacts from concentration of sexually oriented businesses, communities
should adopt zoning ordinances which set distance requirements between liquor
establishments and sexually oriented businesses and should consider restricting
sexually oriented businesses to one use per building.
(4) Communities
should require existing businesses to comply with new zoning or other
regulation pertaining to sexually oriented businesses within a reasonable time
so that prior uses will conform to new laws.
Licensing and other regulations may also be used to reduce
the adverse effects of sexually oriented businesses. The critical requirements
which communities must keep in mind are that regulations must be narrowly
crafted to address adverse secondary effects, they must be reasonably related
to reduction of these effects and they must be capable of objective
application. If these standards can be met, licensing and other regulatory
provisions may play an important role in preventing unwanted exposure to
sexually oriented materials and in reducing the crime problems associated with
sexually oriented businesses.
It is clear that failure to act upon a license application
for a sexually oriented business cannot take the place of regulation. Without
justification, denial or failure to grant a license is a prior restraint in
violation of the First Amendment. Parkway
Theater Corporation v. City of Minneapolis, No. 716787, slip. op. (Henn.
[W]hen the city licenses a motion picture theater, it is
licensing an activity protected by the First Amendment, and as a result the
power of the city is more limited than when the city licenses activities which
do not have First Amendment protection, such as the business of selling liquor
or running a massage parlor.
However, the courts have permitted communities to deny
licenses to sexually oriented businesses if the person seeking a license has
been convicted of other crimes which are closely related to the operation of
sexually oriented businesses.
In Dumas v. City of
The Dumas court also invalidated portions of the licensing
ordinance permitting the police chief to deny a license if he finds that the
applicant "is unable to operate or manage a sexually oriented business
premises in a peaceful and law abiding manner" or is not "presently
fit to operate a sexually oriented business." Neither provision satisfied
the constitutional requirement that "any license requirement for an
activity related to expression must contain narrow, objective, and definite
standards to guide the licensing authority."
A number of courts have upheld ordinances requiring that
viewing booths in adult theaters be open to discourage illegal and unsanitary
sexual activity. See, e.g., Doe v. City
of
Licensing provisions and ordinances forbidding massage
parlor employees from administering massages to persons of the opposite sex
have withstood equal protection and privacy and associational right challenges.
See Clampitt v. City of Ft. Wayne,
682 F. Supp. 401, 407-408 (N.D. Ind. 1988) (equal protection); Wigginess, Inc. v. Fruchtman,
482 F. Supp. 681, 689-90 (S.D. N.Y. 1979), aff'd,
628 F.2d 1346 (2d Cir. 1980), cert.
denied, 449
Although the Working Group expressed strong concern about
the operation of prostitution under the guise of massage parlors, this type of
regulation is not advisable because legitimate therapeutic massage
establishments could find their operations curtailed. Prostitution may be
better controlled through prosecution and use of post-conviction actions such
as forfeiture or enjoining a public nuisance.
In 1985, a court upheld an ordinance making it unlawful to
display for commercial purposes material "harmful to minors" unless
the material is in a sealed wrapper and, if the cover is harmful to minors, has
an opaque cover.
(1) Prior to enacting licensing regulations,
communities should document findings of adverse secondary effects of sexually
oriented businesses and the relationship between these effects and proposed
regulations so that such regulations can be upheld if challenged in court.
(2) Communities
should adopt regulations which reduce the likelihood of criminal activity
related to sexually oriented businesses, including but not limited to open
booth ordinances and ordinances which authorize denial or revocation of
licenses when the licensee has committed offenses relevant to the operation of
the business.
(3) Communities
should adopt regulations which reduce exposure of the community and minors to
the blighting appearance of sexually oriented businesses including but not
limited to regulations of signage and exterior design of such businesses and
should enforce state law requiring sealed wrappers and opaque covers on
sexually oriented material.
There are many actions which communities may take within
the law to protect themselves from the adverse secondary effects of sexually
oriented businesses. Prosecution of obscenity crimes can play a vital role in
decreasing the profitability of sexually oriented businesses and removing
materials which violate community standards from local outlets. Forfeiture and
injunction to prevent public nuisance should be available where sexually
oriented businesses are the site of sex-related crimes and violations of laws
pertaining to gambling, liquor or controlled substances. These actions will
remove the most egregious establishments from communities.
Zoning can reduce the likelihood that sexually oriented
businesses will lead to neighborhood blight. Licensing can sever the link
between at least some crime figures and sexually oriented businesses.
Regulation and enforcement can protect minors from exposure to sexually
explicit materials.
The Attorney General's Working Group on the Regulation of
Sexually Oriented Businesses believes that prosecution, seizure of profits,
zoning and regulation of sexually oriented businesses should only be done in
keeping with the constitutional requirements of the First Amendment. Rational
regulation can be fashioned to protect both our communities and our
constitutional rights.
[1] Hafiz was acquitted of the perjury charges.
[2] The City of
[3] The First Amendment provides: “Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble, or to petition the government for
redress of grievances.” The constitutional guarantee of freedom of speech,
often the basis for challenges to regulation of sexually oriented businesses,
restricts state as well as federal actions. See,
e.g., Fiske v. Kansas,
27
[4] The prior penalty was a fine only – up to
$10,000 for a first offense and up to $20,000 for a second or subsequent
offense.
[5] Two blue ribbon commissions have reached
different conclusions regarding the harmfulness of sexually explicit material
to individuals. A presidential Commission on Obscenity and Pornography
concluded in 1970 that there was no evidence of “social or individual harms”
caused by sexually explicit materials and, therefore, “federal, state and local
legislation prohibiting the sale, exhibition, or distribution of sexual
materials to consenting adults should be repealed.” The Report of the Comm’n on Obscenity and Pornography at 57-8
(Bantam Paperback ed. 1970). However, in 1986, the Attorney General’s
Commission on Pornography concluded that ‘sexually violent materials . . bear .
. . a causal relationship to antisocial acts of sexual violence [and that] the
evidence supports the conclusion that substantial exposure to [nonviolent]
degrading material increases the likelihood for an individual [to] commit an
act of sexual violence or sexual coercion.’ Attorney General’s Comm’n on
Pornography, 1 Final Report at 326,
333 (1986).
[6] Memorandum to Jim Bellus, executive assistant
to St. Paul Mayor George Latimer (prepared by St. Paul Department of Planning
and Economic Development (July 5, 1988); see also Waters “The Squeeze on
Sleaze,” Newsweek, Feb. 1, 1988, at 45 (“After more than 10 years of Levin heavy
fines and making arrests, Atlanta has won national renown as ‘the city that
cleaned up pornography.’”).
[7] The Address of the [Child Exploitation and
Obscenity Section] is U.S. Justice Department, 10th &
[8] The only reported
[9] The ordinances also prohibited the location
of an adult theater within 600 feet of a residential area, but this provision
was invalided by the district court, and that decision was not appealed. Young v. American Mini Theaters, Inc., 427
[10] Of 11 recent post-Renton adult-entertainment zoning decisions by federal courts, five
invalidated ordinance, three upheld ordinances and three ordered a remand to
district court for further proceedings. Zoning ordinances were struck in Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir.
1987) (city council failed to offer evidence suggesting neighborhood decline
would result); Tollis, Inc. v.