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App. B / Adult Businesses
<br />whether the Renton ordinance was sufficiently "narrowly
<br />tailored."
<br />His comments on Renton's means to further its substantial
<br />interest suggest that municipalities have a wide latitude in
<br />enacting content -neutral ordinances aimed at the secondary
<br />effects of adult -entertainment establishments. He quoted
<br />the Young plurality for the proposition that:
<br />It is not our function to appraise the wisdom of [the
<br />city's] decision to require adult theaters to be separated
<br />rather than concentrated in the same areae.... [Tlhe
<br />city must be allowed a reasonable opportunity to experi-
<br />ment with solutions to admittedly serious problems.
<br />Id. at 62, 106 S. Ct. at 931 (quoting Young, supra, 427 U.S.
<br />at 71, 96 S.Ct. at 2463).
<br />As to the "narrowly tailored" requirement, Rehnquist
<br />found that the Renton ordinance only affected theaters pro-
<br />ducing unwanted secondary effects and, therefore, was sat-
<br />isfactory. Id.
<br />The second prong of Renton's "time place, manner" in-
<br />quiry—the availability of alternative avenues of communi-
<br />cation—was satisfied by the district court's finding that 620
<br />acres of land, or more than five percent of Renton, were left
<br />available for adult -entertainment uses, even though some of
<br />that developed area was already occupied and the undevel-
<br />oped land was not available for sale or lease. A majority of
<br />the Court found:
<br />That [adult theater owners) must fend for themselves
<br />in the real estate market, on an equal footing with other
<br />prospective purchasers and lessees, does not give rise to
<br />a First Amendment violation.... In our view, the First
<br />Amendment requires only that Renton refrain from
<br />effectively denying [adult theater owners] a reasonable
<br />opportunity to open and operate an adult theater within
<br />the city, and the ordinance before us easily meets this
<br />requirement.
<br />Id. at 64, 106 S. Ct. at 932.
<br />414
<br />Minnesota Attorney General's Report / App, d , -
<br />B. Standards and Need for Legal Zoning
<br />Unlike Young, the Renton case spells out the standards by
<br />which zoning of sexually oriented businesses should be ,
<br />tested. Renton and several lower court decisions rendered in
<br />its wake suggest that the two most critical areae by which
<br />the ordinances will be judged are (1) whether there is evi-
<br />dence that ordinances were enacted to address secondary w
<br />impacts on the community, and (2) whether there are enough
<br />locations still available for sexually oriented businesses so
<br />that zoning is not just a pretext to eliminate pornographic
<br />speech.lo
<br />This section first describes some of the legal considera-
<br />tions which communities must keep in mind in drafting
<br />zoning ordinances for sexually oriented businesses. Then,
<br />10 Of 11 recent post -Renton adult -entertainment zoning decisions by
<br />federal courts, five invalidated ordinances, three upheld ordinances and
<br />three ordered a remand to district court for further proceedings. Zoning
<br />ordinanoes were struck in Avalon Cinema Corp. v. Thompson, 667 F.2d
<br />669 (8th Cir. 1987) (city council failed to offer evidence suggesting neigh-
<br />borhood decline would result); 7bllis Inc. v. San Bernardino County, 827
<br />F.2d 1329 (9th Cir. 1987) (no evidence presented to legislative body of
<br />secondary harmful effects); Ebel v. Corvna, 767 F.2d 696 (9th Cir. 1986)
<br />(lack of effective alternative locations); II126 Baltimore Boulevard, Inc. u.
<br />Prince Georges County of Maryland, 684 F. Supp. 884 (D. Md. 1988)
<br />(insufficient evidence of secondary effects presented to legislative body;
<br />special exception provisions grant excessive discretionary authority to
<br />coning officials); and Peoples 7hgo, Inc. v. Jackson County Legislature, 636
<br />F. Supp. 1945 (W.D. Mo. 1986) (improper legislative purpose to prevent
<br />continued operation of adult -entertainment establishment). Zoning ordi-
<br />nances were upheld inSDJ, Inc, V. City of Houston, 837 F.2d 1268 (6th Cir.
<br />1988); FWIPBS, Inc- v. City of Dallas, 837 F.2d 1298 (6th Cir. 1988); and
<br />S & G News Inc. v. City of Southgate, 638 F.Supp. 1060 (E.D. Mich. 1986),
<br />alrd without -published opinion, 819 F.2d 1142 (6th Cir. 1987). Remends
<br />were ordered to Christy v. City ofAnn Arbor, 824 F.2d 489 (6th Cir. 1987),
<br />cert. denied, — U.S. —, 108 S. Ct. 1019 (1988) (remand for determination
<br />of excessive restrictions); International Food & Beverage Systema v. City
<br />of Fort Lauderdale, 794 F.2d 1620 (11th Cir. 1986) (remand for reconsid-
<br />eration in light of Renton, supra; nude bar ordinance); and Walnut Prop.
<br />ernes, Inc. v. City of Whittier, 808 F.2d 1391 (9th Cir. 1986) (remand, in
<br />part, for determination of land availability).
<br />415
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