2005/06/15 Council Agenda Packet

App. B / Adult Businesses ing and other regulatory provisions may play an important role in preventing unwanted exposure to sexually oriented materials and in reducing the crime problems associated with sexually oriented businesses. It is clear that failure to act upon a license application for a sexually oriented business cannot take the place of regula- tion. Without justification, denial or failure to grant a license is a prior restraint in violation of the First Amendment. Parkway Theater Corporation u. City of Minneapolis, No. 716787, Blip. op. (Henn. Co. Dist. Ct., Sept. 24, 1976).. An ordinance providing for license revocation of an adult motion picture theater if the licensee is convicted of an obscenity offense is also likely to be held unconstitutional as a prior restraint of free speech. Alexander u. City of St. Paul, 227 N.W2d 370 (Minn. 1976). The Alexander court stated: Mhen the city licenses a motion picture theater, it is licensing an activity protected by the First Amendment, and as a result the power of the city is more limited than when the city licenses activities which do not have First Amendment protection, such. as the business of selling liquor or running a massage parlor. Id. at 373 (footnote omitted); see also Cohen v. City of Dale- uille, 696 F. Supp. 1168, 1171 (M.D. Ala. 1988) (past sale of obscene material cannot justify revocation of license). However, the courts have permitted communities to deny licenses to sexually oriented businesses if the person seeking a license has been convicted of other crimes which are closely related to the operation of sexually oriented businesses. In Dumas V. City of Dallas, supra, the court reviewed a requirement that a license applicant not have been convicted of certain crimes within a specified period. Five of the enu- merated crimes were held to be not sufficiently related to the purpose of the adult entertainment licensing ordinance be- cause the city had made no findings on their justification. The invalid enumerated offenses were controlled substances act violations, bribery, robbery, kidnapping and 'organized 422 Minnesota Attorney General's Report / App. B criminal activity. The court upheld requirements that the licensee not have been convicted of prostitution and sex-re- lated offenses. Id. at 1074. If a community seeks to require that persons with a history of other crimes be denied licenses, clear findings must first be made which justify denial of N licenses on that basis. o The Dumas court also invalidated portions of the licensing w ordinance permitting the police chief to deny a license if he finds that the applicant "is unable to operate or manage a sexually oriented business premises in a peaceful and law- abiding manner" or is not "presently fit to operate a sexually oriented business." Neither provision satisfied the constitu- tional requirement that "any license requirement for an activity related to expression must contain narrow, objective, and definite standards to guide the licensing authority." Id. at 1072. See also Alexander II, supra, slip op. at 16 (uncon- stitutionally vague to define regulated bookstores as those selling "substantial or significant portion" of certain publica- tions); 11126 Baltimore Boulevard, supra, 684 F. Supp, at 898-99 (striking ordinance allowing zoning officials to deny permit if adult entertainment establishment is not "in har- mony" with zoning plan, does not "substantially impair" master plan, does not "adversely affect" health, safety and welfare and is not "detrimental" to neighborhood because such standards are ."subject to possible manipulation and arbitrary application"). A number of courts have upheld ordinances requiring that viewing booths in adult theaters be open to discourage illegal and unsanitary sexual activity. See, e.g., Doe u. City of Min- neapolis, 693 F. Supp. 774 (D. Minn. 1988). Licensing provisions and ordinances forbidding massage parlor employees from administering massages to persons of the opposite sex have withstood equal protection and privacy and associational right challenges. See Clampitt u. City of R. Wayne, 682 F. Supp. 401, 407-408 (N.D. Ind. 1988) (equal protection); Wigginess, Inc. u. Fruchiman, 482 F. Supp. 681, ' 423