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.