INFORMATION MEMO
Regulation of Adult Entertainment
Businesses
Regulating adult entertainment businesses can be complicated because adult entertainment is
considered speech protected by the First Amendment. Learn how to regulate adult entertainment
businesses with zoning and licensing ordinances to minimize their negative impact on the
community.
RELEVANT LINKS:
I.
What is an adult entertainment business?
The term “adult entertainment business” refers to bookstores, theaters,
bars, cabarets, and other establishments where sexually explicit books,
magazines, novelties, and videos are sold, or sexually explicit films or live
performances are viewed. Examples of adult entertainment businesses
include but are not limited to:
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•
•
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Adult body-painting studios.
Adult bookstores.
Adult cabarets/strip clubs.
Adult companionship/conversation/rap parlors.
Adult health/sport clubs.
Adult massage parlors.
Adult mini-motion picture theaters.
Adult motion picture theaters.
Adult novelty businesses.
Adult sauna/steam room/bathhouse facilities.
Nude modeling studios.
Adult entertainment businesses are also referred to as “adult uses” or
“sexually oriented businesses.”
City of Los Angeles v.
Alameda Books, Inc., 535
U.S. 425 (2002). Renton v.
Playtime Theaters, Inc., 475
U.S. 41 (1985). Young v.
American Mini Theaters,
Inc., 427 U.S. 50 (1976).
Jake’s Ltd. v. City of Coates,
284 F.3d 884 (8th Cir. 2002).
ILQ Investments, Inc. v. City
of Rochester, 25 F.3d 1413
(8th Cir. 1994). Holmberg v.
City of Ramsey, 12 F.3d 140
(8th Cir. 1993). Di Ma Corp.
v. The City of St. Cloud, 562
N.W.2d 312 (Minn. App.
1997).
Adult entertainment businesses have been associated with negative
“secondary effects,” including blight; decrease in neighboring property
values; increase in crime, especially prostitution; increased incidence of
sexually transmitted diseases; and causing residents and businesses to
move elsewhere.
This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations.
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RELEVANT LINKS:
Regulations that address these negative secondary effects of adult
entertainment business typically take the form of zoning ordinances,
licensing ordinances, and ordinances that ban public nudity. These types of
regulations are discussed in more detail below.
II. Adult businesses and the First Amendment
U.S. Const. amend. I.
Redrup v. New York, 386
U.S. 767 (1967). Young v.
American Mini Theaters, 427
U.S. 50 (1976).
Barnes v. Glen Theater, Inc.,
501 U.S. 560 (1991). Schad
v. Borough of Mount
Ephraim, 452 U.S. 61
(1981).
The First Amendment to the United States Constitution protects freedom
of speech and expression. The United States Supreme Court has held that
adult literature and adult movies are speech protected by the First
Amendment. The Court has also held that live nude dancing involves
expressive conduct entitled to some First Amendment protection.
Freedman v. Maryland, 380
U.S. 51 (1965).
The First Amendment protection accorded adult entertainment businesses
creates challenges for cities that try to regulate them. Regulations enacted
for the purpose of restraining speech on the basis of content are presumed
to violate the First Amendment. Therefore, cities cannot prohibit adult
entertainment merely because of its sexually explicit nature.
City of Renton v. Playtime
Theaters, 475 U.S. 41, 47
(1986). Peterson v. City of
Florence, 727 F.3d 839 (8th
Cir. 2013). Holmberg v. City
of Ramsey, 12 F.3d 140 (8th
Cir. 1993). Alexander v. City
of Minneapolis, 928 F.2d 278
(8th Cir. 1991).
But see, Peterson v. City of
Florence, 727 F.3d 839 (8th
Cir. 2013) (holding that a
small city’s ordinance that
zoned the entire city
residential and prevented
sexually oriented businesses
from opening in the city did
not violate the sexually
oriented business owner’s
First Amendment rights
where alternative avenues of
communication were
available elsewhere in the
county).
However, not all regulation of adult entertainment is proscribed by the
Constitution. Cities can regulate adult entertainment businesses through
content-neutral ordinances that regulate the time, place, and manner of
speech. The regulations must be designed to promote a substantial
government interest, like reducing criminal activity associated with adult
entertainment businesses. The regulations must also allow reasonable
alternative avenues of communication, which means that adult uses
generally must be allowed to operate somewhere in the city.
A. Content neutrality
City of Renton v. Playtime
Theaters, Inc., 475 U.S. 41
(1986).
City ordinances that regulate adult entertainment businesses must be
content neutral. An ordinance is content neutral if it serves purposes
unrelated to the content of expression, even if it has an incidental impact
on some speakers or messages.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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Under current law, a city ordinance that regulates adult entertainment
businesses will be considered content neutral if its purpose is not to
regulate the sexually explicit content of speech, but is instead intended to
lessen the negative secondary effects attributable to adult entertainment
businesses.
Reed v. Town of Gilbert, 135
S.Ct. 2218 (2015).
A recent U.S. Supreme Court case involving sign regulations has raised
questions about what constitutes a “content neutral” regulation. In Reed v.
Town of Gilbert, the Court determined the Town of Gilbert’s sign
ordinance was subject to strict scrutiny, because it differentiated between
types of signs based on the sign’s message—for example, whether a sign
was a directional sign or an ideological sign. The court determined the
regulation was not content neutral, and was thus subject to strict scrutiny.
The Court ultimately determined that Gilbert’s sign ordinance was not
narrowly tailored and overturned the ordinance. The Court’s ruling, on its
face, would seem to apply to any content-based regulation, which could
include regulation of adult uses.
B. Establishing a substantial government
interest
City of Renton v. Playtime
Theaters, Inc., 475 U.S. 41
(1986).
Excalibur Grp., Inc. v. City
of Minneapolis, 116 F.3d
1216 (8th Cir. 1997).
A city ordinance that regulates adult entertainment businesses must serve a
substantial government interest unrelated to the content of First
Amendment protected speech. Cities have a substantial government
interest in minimizing the negative secondary effects of adult
entertainment businesses on the community. Therefore, cities may enact
laws aimed at reducing the negative secondary effects of adult
entertainment businesses without running afoul of the First Amendment
even though the regulations may have some impact on protected speech.
The regulations must be narrowly tailored to serve the identified
government interest without burdening substantially more constitutionally
protected speech than is necessary to further the content-neutral
government interest.
In order to establish that an ordinance that regulates adult entertainment
businesses is designed to promote a substantial government interest, it is
imperative for cities to engage in legislative fact-finding that establishes
the negative secondary effects of such businesses. When a city enacts an
ordinance that regulates adult entertainment businesses, it may rely on
studies conducted by other cities to establish the secondary effects of these
businesses, as long as the evidence relied upon by the city is reasonably
believed to be relevant to the problems addressed by the ordinance.
Cities can also compile their own city-specific data, such as police reports
and crime statistics to justify adult entertainment business regulations.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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Schad v. Borough of Mount
Ephraim, 452 U.S. 61
(1981).
Conducting the requisite fact finding is vitally important. If a city fails to
make the necessary fact finding, its ordinance will likely be struck down
by a court because the city is unable to show that the ordinance is designed
to serve a substantial government interest unrelated to the content of the
speech being regulated.
C. Prior restraint of speech
Near v. Minnesota, 283 U.S.
697 (1931).
FW/PBS v. City of Dallas,
493 U.S. 215 (1990).
Some city ordinances that regulate adult entertainment businesses have
been struck down by the courts because they are impermissible prior
restraints on speech. A prior restraint is a regulation that prevents speech
before the opportunity for expression can occur. An example of a prior
restraint is an ordinance that requires an adult entertainment business to
obtain a license before it can open.
While prior restraints on speech are not always unconstitutional, there is a
strong presumption against them. However, an adult entertainment
business ordinance that is a prior restraint does not violate the First
Amendment if it has narrow, objective, and definite standards that limit the
discretion of the city and prevent it from denying a license or other
approval based upon the content of speech. The ordinance must also place
reasonable limits on the time the city has to issue the license or other
approval.
D. Overbreadth
Brockett v. Spokane Arcades,
Inc, 472 U.S. 491 (1985).
Schad v. Borough of Mount
Ephraim, 452 U.S. 61
(1981). Di Ma Corp. v. City
of St. Cloud, 562 N.W.2d
312 (Minn. App. 1997). State
v. Holmberg, 545 N.W.2d 65
(Minn. App. 1996).
Under the overbreadth doctrine, the courts will invalidate an ordinance that
regulates adult entertainment businesses if it proscribes substantially more
First Amendment protected speech than is necessary to address the
negative secondary effects of adult entertainment. Therefore, ordinances
that regulate adult entertainment businesses must be must be narrowly
tailored to address their negative secondary effects. Ordinances that limit
First Amendment protected artistic expression, like paintings or statues in
art museums, theatrical performances, or stores with very limited amounts
of adult material, will be struck down as overbroad because they curtail
substantially more speech than necessary to achieve the purpose of
ameliorating the negative secondary effects of adult entertainment
businesses.
E. Vagueness
United States v. Williams,
553 U.S. 285 (2008).
Ordinances that regulate adult entertainment businesses must clearly
indicate what conduct is prohibited.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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Courts will strike down as void for vagueness ordinances that fail to
provide a person of ordinary intelligence fair notice of what conduct is
prohibited, or that are so lacking in standards that they authorize or
encourage seriously discriminatory enforcement. Consequently,
ordinances regulating adult entertainment businesses should precisely
define the conduct that is prohibited.
Cities can avoid overbreadth and vagueness challenges to adult
entertainment businesses ordinances by clearly defining what types of
adult entertainment businesses and conduct are regulated. The ordinance’s
definitions should be narrow enough to include only those businesses and
conduct shown to produce negative secondary effects. Ordinance
definitions that are so broad or imprecise that they limit constitutionally
protected artistic expression violate the First Amendment.
III. Zoning
Young v. American Mini
Theaters, 427 U.S. 50
(1976).
Schad v. Borough of Mount
Ephraim, 452 U.S. 61
(1981).
One way cities regulate adult entertainment businesses is with zoning
ordinances. Cities have broad discretion to regulate land use through
zoning, but the zoning power must be exercised within constitutional
limits.
The United States Supreme Court has held that zoning laws must be
content neutral and narrowly tailored to address the negative secondary
effects of adult entertainment businesses.
A. Spacing
City of Los Angeles v.
Alameda Books, 535 U.S.
425 (2002). Renton v.
Playtime Theaters, Inc., 475
U.S. 41 (1985). Young v.
American Mini Theaters, 427
U.S. 50 (1976).
Jake’s Ltd., Inc. v. City of
Coates, 284 F.3d 884 (2002).
Renton v. Playtime Theaters,
Inc., 475 U.S. 41 (1986).
Cities may use spacing requirements in zoning ordinances to reduce the
negative secondary effects of adult entertainment businesses. A zoning
ordinance could disperse adult entertainment businesses to diminish their
impact on the community. For example, a zoning ordinance that disperses
adult entertainment businesses might require that adult entertainment
businesses be at least 750 feet from other adult entertainment businesses,
single or multi-family dwellings, churches, schools, bars, and public parks.
Alternatively, a city could concentrate adult entertainment businesses into
one area, often a commercial or industrial zone, to aid in law enforcement
and minimize the negative secondary effects on other parts of the city.
Some zoning ordinances both concentrate and disperse adult entertainment
businesses. They require that adult entertainment businesses locate in a
particular zone but also disperse within the zone.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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Renton v. Playtime Theaters,
Inc., 475 U.S. 41 (1986). But
see Peterson v. City of
Florence, 727 F.3d 839 (8th
Cir. 2013) (holding that
while there were no locations
within the city for adult uses,
there were alternative
locations within the same
county where adult
businesses could operate).
A zoning ordinance can control where adult entertainment businesses
locate. But, the ordinance must give adult entertainment businesses a
reasonable opportunity to open and operate somewhere in the city because
under the First Amendment the zoning ordinance must not unreasonably
limit alternative avenues of communication.
Renton v. Playtime Theaters,
Inc., 475 U.S. 41 (1985).
Holmberg v. City of Ramsey,
12 F.3d 140 (8th Cir. 1993).
Alexander v. City of
Minneapolis, 928 F.2d 278
(8th Cir. 1991).
The First Amendment requires that adult entertainment businesses have a
reasonable opportunity to open and operate somewhere in the city. It does
not guarantee any adult entertainment business the right to an actually
available, commercially viable site on which to operate. Adult
entertainment businesses are subject to the same real estate market forces
that apply to other prospective purchasers of property and the inability to
find bargain priced property on which to operate an adult entertainment
business does not give rise to a First Amendment violation.
B. Windows and signage
Metromedia, Inc. v. City of
San Diego, 453 U.S. 490
(1981); but see Reed v. Town
of Gilbert, 135 S.Ct. 2218
(2015).
Excalibur Group, Inc. v. City
of Minneapolis, 116 F.3d
1216 (8th Cir. 1997) review
denied 522 U.S. 1077
(1998). State v. Holmberg,
545 N.W.2d 65 (Minn. App.
1996).
Cities have authority to regulate the time, place, and manner of adult
entertainment businesses’ commercial signage. A city zoning ordinance
can prohibit window signage for adult entertainment businesses and
require all exterior signs to be flat wall signs provided the sign restrictions
are intended to minimize the negative secondary effects of adult
entertainment businesses on surrounding areas and leave open alternative
avenues of communication (i.e., some ability to communicate through
signage).
A city zoning ordinance can also prohibit adult entertainment business
operators from making their store windows opaque or displaying
merchandise or pictures in store windows to address the adverse secondary
effects of adult entertainment businesses.
C. Conditional use permits
LMC information memo:
Land Use Conditional Use
Permits.
Mga Susu, Inc. v. County of
Benton, 853 F. Supp. 1147
(MN Dist. 1994).
Conditional uses are land uses that are permitted by a zoning ordinance
provided they meet certain conditions specified in the ordinance. City
councils exercise discretion when deciding whether or not to grant a
conditional use permit (CUP). However, the exercise of discretion when
deciding whether to grant a CUP to operate a First Amendment protected
adult entertainment business is problematic because of the potential that
the city could discriminate against the content of the speech and deny the
license. Because of this concern, it is probably best that cities avoid using
CUPs as a zoning tool for regulating adult entertainment businesses.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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D. Amortization of nonconforming adult
entertainment businesses
Minn. Stat. § 462.357 subd.
1c and 1e.
A nonconforming use is a legal land use that exists at the time of a zoning
ordinance amendment that because of the zoning amendment no longer
complies with the zoning ordinance. An adult entertainment business may
become nonconforming when the city adopts zoning regulations that limit
where adult entertainment businesses can locate.
Jake’s Ltd., Inc. v. City of
Coates, 284 F.3d 884 (8th
Cir. 2002). County of Benton
v. Kismet Investors, Inc., 653
N.W.2d 193 (Minn. App.
2002).
City zoning ordinances may include provisions for amortization of
nonconforming adult entertainment businesses. An amortization provision
typically requires existing nonconforming businesses to come into
compliance with all zoning requirements within a reasonable time.
Amortization provides a grace period during which the time and money
spent on a nonconforming land use can be recouped prior to termination of
the use. The amortization period must be reasonable.
E. Moratoriums
Minn. Stat. § 462.355 subd.
4.
Schneider v. City of Ramsey,
800 F. Supp. 815 (D. Minn.
1992).
Howard and Emro Corp. v.
City of Jacksonville, 109 F.
Supp.2d 1360 (M.D. Fla.
2000).
City of Crystal v. Fantasy
House, Inc., 569 N.W.2d 225
(Minn. App. 1997).
State law authorizes cities to enact interim land use ordinances, more
commonly called moratoriums. An interim ordinance may place a
moratorium of limited duration on particular land uses for the purpose of
conducting studies to support a comprehensive plan or zoning code
amendment. However, moratoriums on adult entertainment businesses
raise serious First Amendment concerns. Courts have struck down
moratoriums that prevent adult entertainment businesses from opening
anywhere in the city because they unreasonably limit alternative avenues
of communication.
Courts have also found moratoriums that prohibit all adult entertainment
businesses to be an unconstitutional prior restraint on speech. A city
considering enacting a moratorium on adult entertainment businesses
should be aware that the moratorium is susceptible to legal challenge.
If after consulting the city attorney, the city council believes that a
moratorium on adult entertainment businesses is necessary, then the city
should take several steps to make it more likely the moratorium will
withstand a legal challenge. The moratorium should be (1) as short in
duration as possible, (2) include findings based upon review of the
negative secondary effects associated with adult entertainment businesses,
(3) include precise definitions of the adult entertainment businesses
regulated by the moratorium, and (4) identify and define a temporary
location for adult entertainment businesses to operate during the
moratorium. Again, cities are cautioned that even these steps may not be
enough to save a moratorium on adult entertainment businesses from First
Amendment challenge.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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IV. Licensing
FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215 (1990).
City of Littleton v. Z.J. Gifts
D-4, LLC, 541 U.S. 774
(2004).
Another way cities regulate adult entertainment businesses is through
licensing. A licensing ordinance is a prior restraint on speech and bears a
heavy presumption against validity. Nevertheless, cities may impose
reasonable licensing requirements on adult entertainment businesses to
control their negative secondary effects. Below are provisions commonly
seen in adult entertainment business licensing ordinances.
A. Procedural safeguards
FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215 (1990).
Licensing ordinances must have adequate procedural safeguards to ensure
licensing decisions are made promptly and without delay. A licensing
ordinance that fails to set a reasonable and definite deadline on the
decision maker threatens to indefinitely suppress speech. A licensing
ordinance that allows administrative delay to restrain speech will be found
unconstitutional.
B. Standards for disqualification
Adult entertainment business licensing ordinances may not leave the
decision to grant or deny a license to the unbridled discretion of a
government official. Otherwise, the licensing authority could censor
protected speech simply because it disapproves of the content. Adult
entertainment business licensing ordinances must have narrow objectives
and definite standards that limit the discretion of the licensing authority.
City of Littleton, CO v. Z.J.
Gifts D-4, LLC., 541 U.S.
774 (2004).
The United States Supreme Court has upheld an ordinance that permitted
an adult business license to be denied if the applicant:
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City of Elko v. Abed, 677
N.W.2d 455 (Minn. App.
2004).
Was underage.
Provided false information in its application.
Had within the prior year had an adult business license revoked or
suspended.
Had operated an adult business determined to be a public nuisance
within the prior year.
Was a corporation not authorized to do business in the state.
Had not timely paid taxes, fees, fines, or penalties.
Had not obtained a sales tax license.
Had been convicted of certain crimes within the prior five years.
Licensing ordinances that disqualify applicants who have been convicted
of certain sex crimes have also been upheld. Such an ordinance should
enumerate the disqualifying crimes and set a reasonable limit on the period
of disqualification.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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C. Disclosure requirements
City of Elko v. Abed, 677
N.W.2d 455 (Minn. App.
2004).
Adult entertainment business licensing ordinances that require applicants
to disclose their name, age, and criminal history, and that provide for
background checks on applicants have been upheld as substantially related
to the legitimate government interest of guarding against the negative
secondary effects of adult entertainment businesses.
D. Minimum distance requirements
Jake’s Ltd., Inc. v. City of
Coates, 284 F.3d 884 (8th
Cir. 2002). City of Elko v.
Abed, 677 N.W.2d 455
(Minn. App. 2004).
Licensing ordinance provisions that require exotic dancers to perform on a
platform and set a minimum distance that must be maintained between
exotic dancers and patrons have been upheld because they reasonably
further the government interest in preventing crime.
E. Prohibition on gratuities
Jake’s Ltd., Inc. v. City of
Coates, 284 F.3d 884 (8th
Cir. 2002). City of Elko v.
Abed, 677 N.W.2d 455
(Minn. App. 2004).
Like spacing requirements, licensing requirements that prevent the
exchange of money directly between dancers and patrons have also been
upheld because they further the government interest in preventing crime.
F.
Jakes Ltd. Inc. v. City of
Coates, 284 F.3d 884 (8th
Cir. 2002). City of Elko v.
Abed, 677 N.W.2d 455
(Minn. App. 2004).
License fees
Cities may impose fees for the issuance of a license to operate an adult
entertainment business. The license fee must be reasonable. The license
fee may not be so large or so discriminatory as to demonstrate that it is not
content neutral.
G. Hours and days of operation
Flirts, Inc. v. City of Harris,
796 F.Supp.2d 974 (D.Minn.
2011). Pao Xiong v. City of
Moorhead, 641 F.Supp.2d
822 (D. Minn. 2009).
Northshor Experience, Inc. v.
City of Duluth, Minnesota,
442 F.Supp.2d 713 (D. Minn.
2009).
Some adult entertainment business licensing ordinances limit the hours
and days when adult entertainment businesses can operate. A city must be
able to demonstrate that day and hour restrictions are reasonably related to
mitigating the negative secondary effects of adult entertainment
businesses, or a court will find the restrictions invalid.
V. Ban on total nudity
California v. LaRue, 409
U.S. 109 (1972). BZAPS,
Inc. v. City of Mankato, 268
F.3d 603 (8th Cir. 2001).
Knudtson v. City of Coates,
519 N.W.2d 166 (Minn.
1994).
It is well-settled that cities may prohibit totally nude dancing at
establishments that serve liquor. The prohibition must be reasonably
related to minimizing the negative secondary effects of the combination of
totally nude dancing and the sale of liquor.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991). City of
Erie v. Pap’s A.M., 529 U.S.
277 (2000).
SOB, Inc. v. County of
Benton, 317 F.3d 856 (8th
Cir. 2003).
Pap’s AM v. City of Erie,
812 A.2d 591 (Penn. 2002).
Tatro v. Univ. of Minn., 816
N.W.2d 509 (Minn. 2012).
The United States Supreme Court has held that a state statute and a city
ordinance that banned totally nude dancing did not violate the First
Amendment of the United States Constitution. The 8th U.S. Circuit Court
of Appeals has also upheld a ban on totally nude dancing.
Some state courts have held that a ban on totally nude dancing violates
state constitutional protections. The question of whether the Minnesota
Constitution prohibits a ban on totally nude dancing in non-liquor adult
entertainment businesses has not been definitively answered by the
Minnesota appellate courts. However, the Minnesota Supreme Court has
held that the Minnesota Constitution’s protection of free speech is
coextensive with the First Amendment.
VI. State obscenity statutes
Minn. Stat. Ch. 617.
Minn. Stat. § 617.23.
Minn. Stat. § 617.241.
Jenkins v. Georgia, 418 U.S.
153 (1974). State v. Botsford,
630 N.W.2d 11 (Minn. App.
2001).
Minn. Stat., ch, 617 addresses public nuisances associated with the
secondary effects of adult uses such as prostitution and unlawful use and
sale of drugs. Cities may use this chapter to control these public nuisance
activities even without an ordinance in place. However, even though this
chapter prohibits indecent exposure and obscene material and
performances, courts have held that pornographic materials and nude
dancing do not meet the definition of obscenity and, therefore, would not
fall under the purview of this chapter.
A. Minn. Stat. § 617.242
Minn. Stat. § 617.242.
In 2006, the state Legislature adopted Minn. Stat. § 617.242. The statute is
intended to help municipalities address the opening and operation of adult
entertainment establishments.
However, there is serious doubt about the statute’s constitutionality.
Therefore, cities are cautioned not to rely on Minn. Stat. § 617.242 to
regulate adult entertainment establishments.
Minn. Stat. § 617.242 subd.
1.
The statute regulates “adult entertainment establishments.” Adult
entertainment establishments are defined in the statute as “a business open
only to adults and that presents live performances that are distinguished or
characterized by an emphasis on the depiction of sexual conduct or
nudity.” The statute does not regulate other adult uses, such as adult
bookstores or adult theaters.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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Northshore Experience, Inc.
v. City of Duluth, 442
F.Supp.2d 713 (D. Minn.
2006).
One federal district court, ruling on a motion to enjoin the statute’s
application, held several of the statute’s provisions are likely
unconstitutional. The court found that the statute’s notice, distance, and
hours of operation provisions likely violate the First Amendment. The
court’s decision was not a final judgment on the constitutionality of the
statute, but it does raise serious doubts.
There are a number of reasons why cities should not rely on Minn. Stat. §
617.242 alone to regulate adult uses, including:
•
•
•
•
First, and most importantly, there are serious questions about the
constitutionality of the statute.
Second, the statute only applies to “adult entertainment
establishments.” The city will likely want to regulate other types of
adult uses like adult bookstores and adult theaters.
Third, it is unclear how the statute applies to adult entertainment
establishments in existence prior to its enactment.
And fourth, the general provisions of the statute may not meet the
unique needs of any particular city.
As a result, cities should not rely on the provisions of Minn. Stat. §
617.242 to regulate adult entertainment establishments. The better
approach is to adopt the zoning and licensing regulations discussed in the
previous sections, which have proven effective. Cities should also consider
whether to opt out of the statute to avoid any unintended conflicts that may
arise between the statute and local ordinances or regulations.
League of Minnesota Cities Information Memo:
Regulation of Adult Entertainment Businesses
5/14/2017
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