2005/06/15 Council Agenda Packet

App. B / Adult Businesses 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. 1. Documentation to Support Zoning Ordinances 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 zon- ing is needed to reduce secondary effects of the businesses on the community. Since Renton, a number of adult entertainment zoning ordinances have been invalidated for failure of the enacting body to document the need for zoning regulations. Thus, one court invalidated a zoning ordinance because there was "very little, if any, evidence of the secondary effects of adult book- stores ... before the City Council." 11126 Baltimore Boule- vard, supra, 684 F. Supp. at 896; see also 7bllis Inc. v. San Bernardino County, 827 F.2d 1329, 1333 (9th Cir. 1987) (ordinance construed to prohibit single showing of adult movie in zoned area; invalidated for failure to present evi- dence of secondary effects of single showing); but see Thames Enterprises v. City of St. Louis, 861 F.2d 199,201-02 (8th Cir. 1988) (observations by legislator of secondary effects suffi- cient). On the other hand, it is not necessary for each municipal- ity to conduct research independent of that already gener- ated by other cities. The Renton court held that evidence of the need for zoning of sexually oriented businesses can be provided by studies from other cities "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Id. at 61, 106 S. Ct. at 931. See also SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274 (6th Cir. 1988) (public testimony from ex - 416 Minnesota Attorney General's Report / App. B perts, supporters and opponents and consideration of studies by Detroit, Boston, Dallas and Los Angeles sufficient evi- dence of legitimate purpose). The first section of this report summarizes evidence from various cities documenting the secondary effects of sexually oriented businesses. Following Renton, it is intended that o local communities will make use of this evidence in the course of assembling support for reasonable regulation of LIJ sexually oriented businesses. 2. Availability of Locations for Sexually Oriented Businesses 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 ori- ented business to operate under the zoning scheme. A mu- nicipality must "refrain from effectively denying ... a rea- sonable opportunity to open and operate" a sexually oriented business. Renton, supra, 476 U.S. at 64, 106 S. Ct. at 932. 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 re- quired. The Renton court found that 620 acres of "accessible real estate," including land "cries -crossed by freeways"— more than five percent of the entire land area in Renton— was sufficient. 476 U.S. at 63, 106 S.Ct. at 932. The Young court found the availability of "myriad" locations sufficient. 427 U.S. at 72 n.36, 96 S.Ct. at 2463 n.36. Whether .068 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 Minnea- polis (Alexander II), No. 3-88-808, slip op. at 22 (D. Minn. May 22, 1989) (less than 1% of land area could be valid if "ample actual opportunities" for relocation exist); Christy v. 417