2005/06/15 Council Agenda Packet

App. B / Adult Businesses fences. Minn. Stat. § 609.6312 (1988). But, this statute does not permit seizure of property related to commission of the offenses most likely to be associated with sexually oriented businesses. Obscenity crimes are not among the offenses which justify forfeiture. Although solicitation or inducement of a person under age 13 (Minn. Stat. § 609.322, eubd. 1) or between the ages of 16 and 18 to practice prostitution (Minn. Stat. § 609.322, eubd. 2) are included among the offenses which could justify seizure of property, many crimes involv- ing prostitution are outside the reach of the present Minne- sota forfeiture law. 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, eubd. 1A); solicitation, inducement or promotion of a person 18 years of age or older to practice prostitution (Minn. Stat. § 609.322, eubd. 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 leg- islature should also consider providing for forfeiture of prop- erty used to commit an obscenity offense or which represents the proceeds of obscenity offenses. Under the holding in Fort Wayne Books, Inc. u. Indiana, such forfeiture could not take place, if at all, until it was proved that the underlying obscenity crimes had been committed. There are no comparable constitutional issues raised by enacting or enforcement of forfeiture statutes based on vio- lations of prostitution, gambling, or liquor laws. The legisla- ture may require sexually oriented businesses which violate these laws to forfeit their profits. The Working Group be- lieves that such an expansion of forfeiture laws would give prosecutors greater leverage to control the operation of those Minnesota Attorney General's Report / App. D businesses which pose the greatest danger to the community. Recommendations (1) The legislature should amend the present forfeiture stat- ute to include as grounds for forfeiture all felonies and gross misdemeanors pertaining to solicitation, induce- In ment, promotion or receiving profit from prostitution and operation of a "disorderly house." j Lu (2) The legislature should consider the potential for a RICO - like statute with an obscenity predicate. B. Nuisance Injunctions Minnesota law enforcement authorities may obtain an injunction and close down operations when a facility consti- tutes a public nuisance. A public nuisance exists when a business repeatedly violates laws pertaining to prostitution, gambling or keeping a "disorderly house." The Minnesota public nuisance law permits a court to order a building to be closed for one year. Minn. Stat. §§ 617.80-.87 (1988). Nuisance injunctions to close down sexually oriented busi- nesses which repeatedly violate laws pertaining to prosecu- tion, gambling or disorderly conduct are potentially powerful regulatory devices. The fact that a building in which prosti- tution or other offenses occur houses a sexually oriented business does not shield the facility from application of nuisance law based on such offenses. Arcara u. 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 prosti- tution). Although the Working Group believes that nuisance in- junctions with an obscenity predicate would be effective in controlling sexually oriented businesses, such provisions would probably be unconstitutional under current U.S. Su - 406 1 407