2005/06/15 Council Agenda Packet

App. B / Adult Businesses preme 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 neigh- borhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review. Be- cause there is no suggestion in the record or opinion below of such pretextual use of the New York nuisance provision in this case, I concur in the Court's opinion and judgment. Arcara, supra, 478 U.S. at 708, 106 S. Ct. at 3178. In an earlier case, Vance u. Universal Amusement, 446 U.S. 308, 100 S. Ct. 1166 (1980), the Court ruled unconstitutional a Texas public nuisance statute authorizing the closing of a building for a year if the building is used "habitualpy]" for the "commercial exhibition of obscene material." 1, 1. at 310 n.2, 100 S. Ct. at 1168 n.2. The Court's recent holdings in Sappenfteld 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 assump- tion, 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 rack- eteering activity." Fort Wayne Books, Inc. at 4186. 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 ruse to sidestep the First 408 Minnesota Attorney General's Report / App. B Amendment." Id. Without the relationship to proceeds of crime, a remedy which closed a facility for obscenity viola- tions would be far less likely to withstand constitutional scrutiny. Recommendations (1) Prosecutors should use the public nuisance statute to enjoin operations of sexually oriented businesses which repeatedly violate laws pertaining to prostitution, gam- bling or operating a disorderly house. III. Zoning Zoning ordinances can be adopted to regulate the location of sexually oriented businesses without violating the First Amendment. Such ordinances can be designed to disperse or concentrate sexually oriented businesses, to keep them at designated distances from specific buildings or areas, such as churches, schools and residential neighborhoods or to restrict buildings to a single sexually oriented usage. Be- cause 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 consider- ing zoning to regulate sexually oriented businesses. A. Supreme Court Decisions The U.S. Supreme Court upheld the validity of municipal adult entertainment zoning regulations in Young u. Ameri- can Mini Theaters, Inc., 427 U.S. 60, 96 S. Ct. 2440 (1976), and City of Renton v. Playtime Theaters, Inc., 476 U.S. 41, 106 S. Ct. 926 (1986).8 ' The only reported Waneaota court case reviewing ar -Ault enter - n4