Petition for Writ of Certiorari — Holmberg v. City of Ramsey

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c~ Supreme Court, u.g.

(\) FILED

B96 727 Nov 4 1996

peftt OF THE CLERK

SUPREME COURT OF THE UNITED STATES —

October Term 1996

No.

ARNOLD HOLMBERG,

Petitioner.

CITY OF RAMSEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI AND APPENDIX

TO THE SUPREME COURT OF THE

STATE OF MINNESOTA

RANDALL TIGUE LAW OFFICES PA

RANDALL D. B. TIGUE

2620 NICOLLET AVENUE SOUTH

MINNEAPOLIS, MINNESOTA 55408

(612) 874-9903

Attorney for Petitioner

Questions Presented

1. Is the Ramsey, Minnesota Adult Entertainment

Zoning Ordinance unconstitutionally overbroad in violation

of the First and Fourteenth Amendments to the United

States Constitution, in that it is not narrowly tailored to

those uses shown to have caused adverse secondary effects?

‘ Is the ordinance unconstitutionally vague, in violation

of the First and Fourteenth Amendments to the United

States Constitution?

a Did a genuine issue of material fact exists as to

whether the Ramsey, Minnesota Adult entertainment Zoning

Ordinance is content-based, rather than a legitimate attempt

to regulate adverse secondary effects?

ies and Pr in low

The parties to the proceeding below were the City of

Ramsey, a municipal corporation, as Plaintiff and Larry

Holmberg and the Amusement Center, Inc., a Minnesota

corporation, defendants. During the pendency of the appeal,

the Defendants sold their interest to Arnold Holmberg, who

brings this action as Petitioner.’

Review is sought of the decision of the Minnesota

Supreme Court, filed August 6, 1996. The Minnesota

Supreme Court’s decision is unrecorded and set forth in the

Appendix at A.1. The Minnesota Supreme Court’s decision

refusing to grant review of the decision of the Minnesota

During the pendency of the appeal in this matter, Larry Holmberg

and the Amusement Center Inc., the original defendants, conveyed their

interest in the subject premises to Petitioner Arnold Holmberg. This fact

is reflected in the opinion of the Minnesota Court of Appeals. See 548

N.W. 2d at 303 n.1, Appendix at A. 3 n.1

court of Appeals reported as City of Ramsey v. Holmberg,

548 N.W. 2d 302 (Minn. App. May 28, 1996), a copy of which

is set forth in the Appendix at A.2 - A.10.

TABLE OF CONTENTS

Questions presented

Parties and Proceedings Below

Table of Authorities

Jurisdiction

Constitutional and Statutory

Provisions Involved

Statement of the Case

Argument:

I. The Minnesota Court’s upholding of

Ramsey Ordinance No. 90-23 against an

overbreadth challenge creates a conflict

between that Court and the Highest courts

of other jurisdictions, and conflict

between the Minnesota courts and this

Court’s holdings, requiring resolution

by this Court

II. Even if the Ordinance in question

were not unconstitutionally overbroad,

It would be unconstitutionally vague .

III. In the alternative a genuine

issue of material fact for trial

exists as to whether establishments

which deal exclusively in take-home

consumption cause any adverse

secondary effects.

Conclusion

ili

me Sten

TABLE OF AUTHORITIES

ONSTI ION:

First Amendment to the United

States Constitution ; ; , i,1,24

Fourteenth Amendment to the

United States Constitution. . ; i,1,4

DE TATUTES:

Title 28 U.S.C. Sec. 1257(a) . 1

ORDINANCES:

Ramsey City Ordinance No. 90-23. 1,3,4,6,13

CASES:

Alexander y. City of Minneapolis,

535 F. Supp. 1162 (D Minn. 1982),

aff'd 698 F.2d 936 (8th Cir. 1983). 23

Boos v. Barry, 485 U.S. 312

(1988) . ; ; ; 14

Central Hudson Gas & Elec. Corp.

v. Public Service Commission of N.Y..,

447 U.S. 557, (1980) . : : 21

City of Ramsey v. Holmberg,

548 N.W. 2d 302 (Minn. App.

May 28, 1996) . : | ii,13

City of Renton vy. Playtime

Theaters Inc., 475 U.S. 41 (1986) ; 13,14,16,18,21

Denver Area Educational

Tel cations ;

Inc. v. Federal Communications

Commission, 116 S. Ct. 2374

(1996) .

44 Li v.R d

JA, 116 8. Ch. 1495

(May 13, 1996)

l rg v. City of

12 F. 3d 140 (8th Cir. 1993)

ILO Inv nts, Inc. v

City of Rochester, 816 F. Supp.

516 (D. Minn. 1992), rev'd

25 F.3d 1413 (8th Cir. 1994),

cert. denied, II5 S.Ct. 578 (1994)

New Jersey Citizens Action v.

Edison Township, 797 F.2

1250 (3d Cir. 1986)

Pennsylvania Alliance for

Jobs & Energy v. Council

of the Borough Munhall (PAJE),

743 F.2d 182 (3d Cir. 1984)

People v. Supreme Court (Lucero),

49 Cal. 3d 13 (1989)

Police Department of Chicago

v. Mosley, 408 U.S. 92 ( 1972)

Posadas De Puerto Rico

iates v.Tour

at P.R., 478 U.S. 328 (1986)

12,17,18,20,21,22

Pringle v. City of Covina,

115 Cal. App 3d 151 (1981)

Regan v. Time, Inc., 468 U.S. 641,

648-649 (1984)

Richardson v. Wile, 535 A.2d 346

(Del. 1988)

Sebago Inc. v. City of Alameda,

211 Cal. 3d (1989) rev. denied,

(Cal. 1989)

Schneider v. City of Ramsey, 800 F.

Supp. 815 (D. Minn. 1992),

aff'd sub. nom. Holmberg v.

City of Ramsey, 12 F. 3d 140

(8th Cir. 1993), cert. denied,

IS S.Ct. 59, 130 L.Ed.

2d 17 (1994)

Texas v. Johnson, 491 U.S. 397

(1989) .

Tollis v. San Bernardino

County 827 F. 2d 1329

(9th Cir. 1987)

United States v. Carolene

Products Co., 304 U.S. 144

(1938) .

Young v. American Mini Theatres,

427 U.S. 50 (1976)

Ward v. Rock Against Racism,

491 U.S. 781 (1989)

13,14,16,18

Worldwide Video v. Tukwila,

117 Wash. 2d 832 (1991),

cert. denied, 112 S.Ct. 1672 (1992)

Z.J. Gifts, Inc. v. City of

Aurora, 932 F. Supp. 1256

(D. Colo. July 2, 1996)

18,24

ri ion

Review is sought of a decision of the Supreme Court

of the State of Minnesota, entered August 6, 1996.

Jurisdiction is based upon Title 28 U.S.C. Sec. 1257(a).

Constitutional and Statutory

Provisions Involved

This case involves the First and Fourteenth

Amendments to the United States Constitution, the text of

which are set forth in the Appendix at A.52, and Ramsey

City Ordinance No. 90-23, pertinent portions of which are set

forth in the Appendix at A.44 - A.51.

Statement of the Case

Respondent commenced the present action against

Petitioner’s predecessors in interest to seek a permanent

injunction enforcing the provisions of Ramsey Ordinance No.

90-23, enacted by the Ramsey City Council in November of

1990. The Ordinance regulates the location of so-called

adult uses within the City of Ramsey.

The ordinance, at Section 9.02, defines the term

"adult uses" as follows:

"Adult uses include adult bookstores, adult

motion picture theaters, adult motion picture

rental, adult mini-motion picture theaters,

adult massage parlors, adult steam room/bath

house/sauna facilities, adult companionship

establishments, adult rap/conversation parlors,

adult health/sports clubs, adult cabarets, adult

novelty businesses, adult motion picture

arcades, adult modeling studios, adult

hotel/motels, adult body painting studios, and

all other premises, enterprises, establishments,

businesses or places open to some or all

members of the public, at which there is an

emphasis on the presentation, display,

depiction or description of ’specified sexual

activities’ or ‘specified anatomical areas’ which

are capable of being seen by members of the

public." Petitioners’ Appendix at A.45- A.46.

The same section defines the term "adult

use/bookstore" as follows:

"A building or portion of a building used for

barter, retail or sale of items consisting of

printed matter, pictures, slides, records, audio

tape, video tape, or motion picture film if

such building or portion of a building is not

open to the public generally but only to one

or more classes of the public extending (sic)

any minor by reason of age or if a substantial

or significant portion of such items are

distinguished or characterized on the emphasis

on the depiction or description of ’specified

»xual activities’ or specified anatomical

areas.” Id, at A.47 - 48.

The same ordinance defines the term "adult use --

motion picture arcade" as follows:

"Any place to which the public is permitted or

invited where in coin or slug-operated or

electronically or electrically or mechanically-

controlled still or motion picture machines

projectors or other image-producing devices

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are maintained to show images to five or

fewer persons per machine at one time, and

where the images so displayed are

distinguished or characterized by an emphasis

on depicting or describing ‘specified sexual

activities or specified anatomical areas.” Id.

at A.49 - 50.

The ordinance further defines the term "adult use --

novelty business” as:

"A business which has as a principal activity

the sale of devices which stimulate human

genitals or devices which are designed for

sexual stimulation.” Id. at A.5SO.

Finally, the definition section of the ordinance

distinguishes between "adult uses--principal,” which it defines

as a business establishment having more than "ten percent of

its stock in trade or floor area allocated to, or more than 20

percent of its gross receipts derived from, any adult use,” and

"adult uses accessory," in which under 10 percent of the stock

in trade or floor area or under 20 percent of the gross

receipts are derived from adult uses. Id. at A.47.

Prior to the commencement of this action,

Petitioner’s predecessors had previously unsuccessfully

challenged the constitutionality of Ramsey Ordinance No. 90-

23. See Schneider v. City of Ramsey, 800 F. Supp. 815 (D.

Minn. 1992), aff'd sub. nom. Holmberg v. City of Ramsey,

12 F. 3d 140 (8th Cir. 1993), cert. denied, IIS S.Ct. 59, 130

L.Ed. 2d 17 (1994). In the federal action, Petitioner’s

predecessors alleged that at the time of the commencement

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of the federal action in 1990, their operation featured three

separate and distinct adult uses as defined in the ordinance,

to-wit: an adults-only bookstore, an adults-only movie

arcade, and an adult business -- novelties, and that the

location of the establishment violated Ordinance No. 90-23,

in that the establishment was located within 1,000 feet of

residentially zoned property and within 1,000 feet of a

licensed day care center.’The federal action challenged the

facial constitutionality of Ordinance No. 90-23 on the

following bases:

a. The ordinance was enacted without sufficient

empirical support as to its necessity to combat adverse

secondary effects, rendering the ordinance not a content-

neutral regulation of location, but rather an impermissible

content-based censorship.

b. The operation and effect of the ordinance

would be to ban adult entertainment totally from the City of

Ramsey, or at least substantially curtail its availability.

. That the stated purpose of the ordinance was

merely pretextual, in light of the absolute ban on adult

entertainment created in fact.

d. Because the ordinance amortizes out of

existence adult entertainment businesses in a manner not

done to any other non-conforming use, the ordinance

violated the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution. See

Petitioner’s Appendix at A.102 - A.103.

In the federal action, the District Court upheld the

*See complaint in the federal action, paragraphs 23(a) and (b),

Petitioner's Appendix at A.91 - A.104.

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facial constitutionality of the ordinance, holding that based

upon the research of David Licht, a professional planner, and

public hearings:

"[T]he City concluded that adult uses create

secondary effects in the community, including

increased crime, increased health risks,

diminished property values, and general

neighborhood blights. It found that these

effects are particularly experienced when the

adult use is accessible to minors or located

near residential property or related residential

uses such as schools, day care centers,

libraries, or parks. It found that special

regulation of uses is necessary to assure that

adverse secondary effects would not

contribute to or enhance criminal activity in

the area of such uses nor contribute to the

blighting or downgrading of the surrounding

property and lessening of its value." 800 F.

Supp. at 819.

However, the District Court in the federal action also

specifically found that with one exception, there was no

evidence that Respondents’ adult bookstore, as then

constituted,’ in fact had generated adverse secondary effects.

The U.S. District Court specifically noted:

5 As already noted, supra, the store at the time of the federal

litigation the stock in trade for retail consisted of entirely sexually explicit

magazines, videos, and rubber goods, and featured a video arcade for on-

premises viewing of sexually explicit materials.

"[Licht} was not able to document an actual

decrease in property values the City based on

the short period of time the adult business

had been open in the city. The police reports

consisted largely of complaints of protesters at

the business about the operation of the

business and the conduct of its workers, and

complaints from Larry Holmberg about the

conduct of the protesters." Id. at 819.

The U.S. District Judge further noted that subsequent

to the adoption of the ordinance, "There has been no

evidence of decreased property values in the vicinity of the

adult business (footnote omitted)." Id. at 820. The omitted

footnote specifically noted that after Licht’s report was

presented to the City Council, a group of property owners

persuaded the City to reduce property taxes by 25 percent, to

reflect an alleged loss of property values. Following an

investigation by the senior appraiser in the Anoka County

Assessor’s office, the Anoka County Board of Adjustment

reversed this decision. See Id, at 820, n. 2.

The only secondary effect shown subsequent to the

enactment of the ordinance was "high risk sexual conduct" in

the motion picture viewing booths at the business. The

District Court concluded that the evidence of such activity in

the viewing booths "shows actual adverse secondary effects

since the adoption of Ordinance No. 90-23." Id. at 820.

In upholding the constitutionality of the ordinance,

the District Court specifically found that since Respondents’

business clearly fell within the definition of adult-uses

principle, Respondents lacked standing to challenge the

overbreadth of those definitions. See Id. at 822, n.3.

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After the United States District Court’s decision was

affirmed by the Eighth Circuit,‘ Petitioner’s predecessors

substantially modified the operation of the bookstore.

Specifically they sealed off from the public the entire video

booth area, so there was no on-premises consumption of

sexually explicit material taking place on the premises. This

in fact eliminated the only activity at the store found by the

United States District Court to cause any adverse secondary

effects.° Secondly, they substantially changed the amount of

retail merchandise available for sale, altering the nature of

the bookstore, to make it akin to the "Fantasy House" chain

of stores, such as the one in Fridley, Minnesota.

(Petitioners Appendix at A.59)

In an affidavit submitted by a clerk at the store, not

only were the video booths physically blocked off from public

access, but the video tape viewing booths were disconnected

from electrical power so they were non-functional

(Petitioners Appendix at A.59) Of the remaining floor

space, only 40 percent was devoted to sexually explicit

material, in the nature of books, magazines, video tapes or

novelties, and the remaining 60 percent was devoted to such

items as motorcycle magazines, car magazines, hunting

magazines, and Popular Mechanics type of magazines (Id. at

A.59).

As part of their submissions in opposition to

Respondents’ motion for summary judgment, Petitioner’s

predecessors included the affidavit of Robert Bruce

* See Holmberg v. City of Ramsey, 12 F. 3d 140 (8th Cir. 1993).

> See 800 F. Supp. at 820.

Eee settee — ° - a a ci a OR TER LET ET RO fe LE Ee 2. TEE |

McLaughlin, a former city planner, who has conducted

extensive review of the studies relied upon by city planners to

justify adult entertainment zoning ordinances. The affidavit

provided, in pertinent part, as follows:

ee As such, I have personally read and

become familiar with virtually all of the

published literature related to adverse

secondary effects of adult entertainment, and

have personally reviewed most of the

unpublished literature relied upon by

municipal governments as it related to adverse

secondary effects of adult entertainment

zoning.

4. Based upon your affiant’s extensive

professional experience, your affiant has yet to

find a single municipality or city planner that

has ever studied the adverse secondary effects

of general book and video stores, featuring

adults-only sections consisting of a minority of

the floor space, and featuring no on-premises

consumption of sexually explicit material.

5. All of the adult entertainment studies

relied upon by any municipality have

uniformly been of adults-only theaters; adults-

only bookstores, which have consisted of

virtually 100 percent sexually explicit material

and featuring on-premises consumption of

said material through coin-operated "peep

shows"; and alcoholic and non-alcoholic bars

featuring live nude dancing.

6. The reason that general video stores

with adults-only sections have never been the

subject of secondary effect studies has nothing

to do with the newness or novelty of such

entertainment forms; such entertainment

forms had been common throughout the

United States for at least IS years and have

been well known to city planners for that

entire period of time.

rE Rather, the reason such entertainment

forms have never been the form of secondary

effects studies is the fact that such

entertainment forms have been universally

recognized as materially different in nature

from adults-only bookstores, adults-only

motion picture theaters, and live nude dance

entertainment.

8. The chief reason why nobody has

studied the adverse secondary effect of

general release video stores with adults-only

sections is that no responsible city planner has

ever seriously suggested that such

entertainment forms cause the type of adverse

secondary effects associated with adults-only

theaters and adults-only bookstores, featuring

on-premises consumption of such

materials.” Petitioner’s Appendix at A.56 -

A.57.

Upon this record, the District Court, by the

Honorable James A. Morrow, District Judge, granted

Respondent’s motion for summary judgment in part and

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denied it in part.°

However, the District found that genuine issues of

material fact remained as to two issues:

"First, whether the zoning ordinance is

reasonably believed to be relevant to the

problem that the City of Ramsey seeks to

address; and second, whether the zoning

ordinance is sufficiently narrowly tailored to

affect only that category of businesses shown -

to produce unwanted secondary effects."

Petitioners’ Appendix at A.41 - A.42.

In holding that a genuine issue of material fact

existed, Judge Morrow specifically noted that because

Petitioner’s predecessors had changed the nature of their

store to eliminate on-premises consumption of sexually

explicit material, and because they were precluded from

raising an overbreadth challenge in federal court, Defendants

were not barred from raising a constitutional challenge,

based on overbreadth, in the present proceeding. The

District Court wrote:

"[Blecause Defendants challenged the zoning

ordinance from the position of an adult

bookstore with on-premises consumption of

adults-only material and because the studies

apparently show that other cities have

Judge Morrow granted the motion for summary judgment, insofar

as it found that Respondents’ use of the property at its current location

was prohibited under the City’s ordinance, that Defendant Holmberg was

properly served by publication, and that the initial enactment of the zoning

ordinance was a legitimate content-neutral time, place, and manner

regulation. See Petitioner’s’ Appendix at A.21 - A.22.

Petitioner does not seek review of those decisions.

experienced adverse secondary effects from

adult bookstores with on-premises

consumption of adults-only material, it seems

that Defendants would have been precluded

from raising the overbreadth of the provisions

as a constitutional challenge to the ordinance,

since they clearly fell within the core of the

| zoning ordinance provision. [Citation

omitted.] Judge Murphy appropriately held

so when Defendants attempted to challenge

the adults-use accessory provisions of the

ordinance. [Citations omitted.]

Whether the studies relied upon before the

City of Ramsey before enacting the zoning

ordinance address the adverse secondary

effects of adult bookstores without on-

premises consumption of adults-only materials

and whether the ordinance is sufficiently

narrowly drafted to correspond with the

studies’ findings are disputed issues of

material fact. These two issues must

therefore be reserved for trial and Plaintiff's

Motion for Summary Judgment and a

permanent injunction must be denied."

Petitioner’s ’ Appendix at A.42.

In its renewed motion for summary judgment,

Respondent tendered copies of all of the studies relied upon

by the City of Ramsey in enacting its ordinance, and also all

of the studies relied upon by the City of Rochester in

enacting the ordinance which was the subject of litigation in

pie

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ILQ Investments, Inc. v. City of Rochester, 816 F. Supp. 516

(D. Minn. 1992), rey’d 25 F. 3d 1413 (8th Cir. 1994), cert.

denied, IIS S.Ct. 578 (1994).

In a responsive affidavit, Petitioner’s planning expert,

Robert Bruce McLaughlin indicated that he had personally

reviewed all of the foregoing studies and that none of them

dealt with adverse secondary effects of adult entertainment

featuring no on-premises consumption. See Petitioners

Appendix at A.63 - A.65.

Moreover, in addition, Petitioner noted that the only

study of adverse secondary effects done by a governmental

agency which considered an exclusively adult bookstore

containing no on-premises consumption concluded that no

adverse secondary effects resulted from the operation of such

a store (Petitioners’ Appendix at A.65). That study, done by

the City of Daytona Beach is set forth in Petitioners’

Appendix at A.73 - A.82. In particular, the study concerned

the News Mart, located at 214 North Beach Street, featuring

the sale of books and magazines. The study concluded:

"There have been no problems at this

business. Books are wrapped in plastic foil

and customers are not allowed to read them.

A separate area is marked off." Petitioners

Appendix at A.77.

In addition, McLaughlin himself set forth in his

Affidavit that in the City of Rochester, Minnesota, he had

personally conducted a study featuring a bookstore with adult

materials and no on-premises consumption, and several

control uses, including conventional book and video stores.

The study concluded that the store featuring adult materials

and no on-premises consumption had no negative impact on

property values within the city, and there was no inordinate

demand for police services, and no evidence of urban blight

(Petitioner’s Appendix at A.65).’

Notwithstanding the foregoing, the District Court

granted summary judgment to Respondent as to the

constitutionality of the ordinance as applied to Petitioner's

use, which decision was upheld by a 2-1 margin by the

Minnesota Court of Appeals,® and the Minnesota Supreme

Court declined further review.

ARGUMENT

I. THE MINNESOTA COURT’S UPHOLDING OF

RAMSEY ORDINANCE NO. 90-23 AGAINST AN

OVERBREADTH CHALLENGE CREATES A CONFLICT

BETWEEN THAT COURT AND THE HIGHEST COURTS

OF OTHER JURISDICTIONS, AND CONFLICT BETWEEN

THE MINNESOTA COURTS AND THIS COURT'S

HOLDINGS, REQUIRING RESOLUTION BY THIS

COURT.

In Young v. American Mini Theatres, 427 U.S. 50

(1976), and City of Renton v. Playtime Theaters Inc., 475

U.S. 41 (1986) this Court recognized the limited and narrow

exception to the general rule government regulation of

speech cannot be content-based; government may not treat

person’s speech differently from another, based upon the

DOT Nat REIS 2 RR yy Ss

A summary of Mr. McLaughlin's study concerning Rochester is set

forth in Petitioners” Appendix at A.86 - A.88.

* See City of Ramsey v. Holmberg, supra, 548 NW 2d 302 (Minn.

App. May 28, 1996).

content thereof.’ The reasoning behind this limited

exception created Young and Renton was that in permitting

special zoning treatment for adult entertainment, defined by

the content of the entertainment featured, the municipalities

were not regulating the content of the material per se, but

rather the “adverse secondary effects” caused by that

particular genre of entertainment, effects such as a decline in

property values, an increase in crime, and general blighting

of the surrounding neighborhood. For example, in the

plurality opinion in Young, written by Justice Stevens,”°

specifically noted the following:

"In the opinion of urban planners and real

estate experts who supported the ordinances,

the location of several such businesses (adult

theaters and other regulated business) in the

same neighborhood tends to attract an

undesirable quantity and quality of transients,

adversely affects property values, causes an

increase in crime, especially prostitution, and

encourages residents and businesses to move

elsewhere.” 427 US. at 55.

The plurality opinion particularly relied on the fact

that the ordinance was enacted in response to established

"secondary effects" such as decline in property values and

* Examples of where this Court has pronounced the general rule

include Police Department of Chicago v. Mosley,408 U.S. 92 (1972);

Regan v. Time, Inc., 468 U.S. 641, 648-649 (1984); Texas v. Johnson, 491

U.S. 397 (1989); Boos v. Barry, 485 U.S. 312 (1988).

' The 5-to-4 majority in Young came as a result of a plurality opinion,

written by Justice Stevens, in which Chief Justice Burger, and Justices

Rehnquist and White joined, and a concurring opinion by Justice Powell.

increase in crime rate, rather than objections to the content

of the films shown, as a basis for enacting the ordinance.

Mr. Justice Stevens, in his plurality opinion, specifically noted

the following:

"The Common Council’s determination was

that a concentration of ’adult’ movie theaters

causes the area to deteriorate and become a

focus of crime, effects which are not

attributable to theaters showing other types of

films. It is this secondary effect which these

ordinances attempt to avoid, not the

dissemination of ‘offensive’ speech. In

contrast, in Erznoznik v. City of Jacksonville,

422 U.S. 205, 95 S. Ct. 268, 45 L.Ed. 2d 125,

the justifications offered by the city rested

primarily on the city’s interest in protecting its

citizens from exposure to unwanted,

‘offensive’ speech. The only secondary effect

relied on to support that ordinance was the

impact on traffic -- in effect which might be

caused by a distracting open-air movie even if

it did not exhibit nudity." 427 U.S. at 7l, n. 34

In Renton, the Court upheld the validity of the

ordinance only upon a showing that the

ordinance was "narrowly tailored to affect only

that category of theaters shown to produce

unwanted secondary effects..." 475 U.S. at 52

In courts of many jurisdictions, including supreme

courts of other states, have not hesitated to invalidate adult

entertainment zoning laws, when those laws are not

definitionally “narrowly tailored” to uses found to have

caused adverse secondary effects.

For example, numerous courts have held that adult

entertainment zoning laws cannot be constitutionally applied

to theaters which, on a single occasion, show a single adults-

only film. See, for example, Pr Pringle v. City of Covina, 115

Cal. App 3d 151 (1981); People v. Supreme Court (Lucero),

49 Cal. 3d 13 (1989); and Tollis v. San Bernardino County

827 F. 2d 1329 (9th Cir. 1987). In Tollis, the court clearly

stated the appropriate test for measuring content-neutrality

under Young-Renton type of ordinances.

"To be acceptable as a content-neutral time,

place, and manner regulation, an ordinance

must be ‘designed to serve a substantial

governmental interest and allow for

reasonable alternative avenues of

communication.’ [Citation to Renton omitted. ]

Here, the county has presented no evidence that a

single showing of an adult movie would have any

harmful secondary effects on the community. The

county failed to show that the ordinance, as

interpreted by the County to include any theater that

shows an adult movie a single time, is sufficiently

‘narrowly tailored’ to affect only that category of

theaters shown to produce the unwanted secondary

effects’ [Citation to Renton omitted.]" Id. at 1332 -

1333.

Likewise, in Worldwide Video v. Tukwila, 117 Wash.

2d 832 (1991), cert. denied. 112 S.Ct. 1672 (1992), the

Washington Supreme Court invalidated a municipal zoning

ordinance which defined “adult entertainment” and “adult

bookstore” as one which devoted more than ten percent of

its stock in trade to sexually explicit materials, as applied to

an establishment dealing exclusively in take-home materials,

pointing out that all the studies of adult entertainment which

have lead to the conclusion that secondary effects are present

have dealt with establishments featuring on-premises

consumption of materials, such as theaters, large stage shows,

coin-operated peep shows; none have establishments which

deal solely in materials to be consumed at-premises have

similar secondary effects. In a similar vein, the Supreme

Court of Delaware in Richardson v. Wile, 535 A.2d 346 (Del.

1988) held that it would be unconstitutional to apply adult

entertainment zoning laws to general release video stores

with adult-only sections.

See also Sebago Inc. v. City of Alameda, 211 Cal. 3d

(1989) rev. denied, (Cal. 1989), holding that adult

entertainment zoning laws could not be constitutionally

applied to “adult news racks,” in the absence of any other

evidence demonstrating that such businesses cause adverse

secondary effects.

The Minnesota Court of Appeals rejected all of this

persuasive and contrary authority from other jurisdictions

and relied exclusively on ILQ Investments, Inc. v. City of

Rochester 25 F. 4 1413 (8th Cir 1994), cert. denied, 115 S.

Ct. 578 (1994), upheld the application of adult entertainment

zoning laws to a business which offered exclusively off-

premises consumption of adult materials in sixty percent of

whose floor space featured material of a non-sexual nature.

Apart from the fact that ILO Investments, Inc. is

directly in conflict with far more persuasive authority from

other jurisdictions, the analysis in that case is fundamentally

flawed for at least two additional reasons:

First of all, as already noted, supra, adult

entertainment zoning is a limited exception to the general

rule absolutely prohibiting content-based distinction in

speech, only where it can be shown that the regulation is not

directed at the content of speech itself, but only against the

adverse secondary effects created thereby. Therefore, to the

extent that ILO stands for the proposition that a city, having

before it evidence that establishments which deal in 100

percent adult entertainment, with exclusively both on and off-

premises consumption, can reasonably apply adult

entertainment zoning regulations to any establishment

featuring any amount of adult entertainment, on or off-

premises consumption, it is plainly inconsistent with the

underlying rationale of Young, Renton, and their progeny

and should be rejected.

In this regard, the ILO analysis was persuasively

rejected to the court in _Z.J. Gifts, Inc. v. City of Aurora, 932

F. Supp. 1256 (D. Colo. July 2, 1996). Citing the language in

ILQ to the effect that, “even if Downtown Book & Video is

a new type of adult business, it may not avoid time, place,

and minor regulation that has been justified by the study of

secondary effects of reasonably similar businesses,”"' the

court Z.J. Gifts stated:

Respectfully, this analysis is flawed in that it is

directed more toward the subjective intent of the city

council then the objective effect of the freedom to

communicate.

In the many cases which have addressed the probiem

of sexually oriented businesses and the efforts of

'' 25 F. 3d at 1418, cited 932 F. 2d at 1258.

oa ee

communities to restrict them, the analyses undertaken

have followed a pattern of repeating the litany from

the Supreme Court in [Renton] and other cases that

such cases are content neutral because they are not

designed to suppress the content of speech - only the

secondary effects of sexually oriented speech on the

neighborhood. There can be no quarrel with that

approach in those cases where those effects are well

documented in the types of studies which were used

by Aurora in considering this Ordinance. If the

plaintiff had booths for peep shows on its premises,

the issues in this case would then deal with some of

the particular restrictions which may be more than

necessary to meet the governmental purpose of

avoiding or mitigating those secondary effects. The

problem here is that none of the material relied upon

by the city council shows what the business of

Christie’s bears any relationship to such effects.”_Id.

at 1258.

The court went on to note:

“If the Plaintiff's business is sufficiently

dissimilar to the types of businesses associated

with the undesirable secondary effects that are

of legitimate governmental concern as shown

on the studies relied upon by the defendant,

then the application of the ordinance to

Christie’s store as sought by the defendant in

the counterclaim is directed not at crime,

public health, or property values. Instead it

seeks to suppress the sexual messages in the

store’s inventory. In some, the only

NS ho hee Oh at ;,

OO CR NEE a al Ms SOE A rat cere De

Sh ta te

significant difference shown between the

business of Christie’s and the other retail

businesses in this retail zone district is that

Christie’s sells explicit communications about

sexual activity. Thus, it can be justified only

by the reference to sexual content of

plaintiff's business.

There’s an obvious difference between a package

liquor store and a bar, and those differences are

noted in liquor licensing requirements [Citation

omitted. ]

There is also a qualitative difference as well as a

quantitative distinction between sports arenas and

sporting goods stores. It is difficult to believe that

anyone would suggest that sporting goods stores must

be limited to the same zoning areas as sports arenas

based on a rise in crime or reduction in residential

property values associated with sports arenas.” Id. at

1259,"

A grant of certiorari would resolve these clear

conflicts between jurisdictions.

Secondly and perhaps more significantly, to the extent

that decisions such as the instant case and ILQ Investments,

Inc., reached the results they did premised upon the notion

that courts must defer to legislative determinations as to the

The court further noted that similar difference existed between

the establishment providing sexual entertainment for consumption on

premises, and a cable television system broadcasting sexually explicit

entertainment in the home, relying on_Denver Area Educational

Telecommunications Consortium, Inc. v. Federal Communications

Commission, 116 §. Ct. 2374 (1996). See 932 F. 2d at 1260.

significance of the state interest being advanced, whether

those interests are directly advanced, and whether the

solution is appropriately narrowly tailored, those decisions

are plainly no longer good law in light of this Court’s

decision. In 44 Liquormart v. Rhode Island, =» ~US. ___,

116 S. Ct. 1495 (May 13, 1996), in which this Court expressly

overruled Posadas De Puerto Rico Associates v. Tours & Co.

at P.R., 478 U.S. 328 (1986), requiring deference to

legislative judgments in those matters.’

Secondly, the record before this Court is far different

than was the record before the Court in ILQ, Investments,

Inc., supra. In ILQ, the only legislative history before the

Court was the City’s studies establishing that adult

entertainment caused various adverse secondary effects.

The ILQ court concluded that based upon that record, the

City Council could reasonably have believed that the adult

entertainment zoning ordinance enacted was relevant to the

secondary effects problems caused. However, the record in

2 In the Central Hudson Gas & Elec. Corp. v. Public Service

Commission of N.Y., 447 U.S. 557, (1980), the United States Supreme

Court advanced the following test for juding the validity of commercial

speech which is not misleading or deceptive: First, that the governmental

interest in the regulation be substantial, that the regulation in question

directly advance the interest, and that the regulation in question be

narrowly tailored, so thta it is not more extensive than necessary to serve

that interest. In Renton, and more particulary in Ward v. Rock Against

Racism, 491 U.S. 781 (1989), the Court adopted the following tests for

determing the validity of a content-neutral time, place, and manner

regulation: the regulation must serve a substantial government interest,

unrelated to the suppression of free expression, it must be narrowly

tailored to serve that interest, and must leave available alternative

avenues of communication. Given the extreme similarity of the tests for

commercial speech and time, place, and manner regulation, there appears

to be no principled reason for treating the two tests differently.

the instant case is far different. It consists not only of the

studies relied upon in the City’s original enactment of the

ordinance, which generally show the existence of adverse

secondary effects; but also consists of two studies which

conclusively demonstrate no adverse secondary effects from

purely take-home entertainment and demonstrate that the

percentage of adults-only material sold at a given store is

irrelevant to secondary effects, of the City’s own experience

with the very use in question, showing that the only adverse

secondary effects related to on-premises motion picture view

booths, which have been eliminated. Therefore, even

assuming ILQ was correctly decided on the record before the

court in that case, that in no way supports the conclusion

that ILQ commands the same result in the face of a totally

different set of facts.

Il. EVEN IF THE ORDINANCE IN QUESTION WERE

NOT UNCONSTITUTIONALLY OVERBRAOD, IT WOULD

BE UNCONSTITUTIONALLY VAGUE.

The alternative definition of adult use-principal is

that no more than 20 percent of its gross receipts be from an

adult use.’* However, the ordinance is silent on the

question of the time period over which the 20 percent is to

be calculated. If on a given day, 10 people purchase Hustler

magazines, and no one buys any Popular Mechanics or other

non-sexual items, is the store in violation of the ordinance on

that day? Must a store owner sell $8.00 of non-sexual

material before he can sell $2.00 of sexually explicit material?

There is plainly no reasonable basis upon which a store

A.47.

See definition of “Adult uses principal,” Petitioners’ Appendix at

eee ee

ald

Se ee oe a

owner can comply with such a regulation.

‘ At least one court has held that a similar zoning

ordinance is unconstitutionally vague, in that it is impossible

to know how to comply with it. See Alexander v. City of

Minneapolis, 535 F. Supp. 1162 (D Minn. 1982), aff'd 698 F.

2d 936 (8th Cir. 1983).

Ill. IN THE ALTERNATIVE A GENUINE ISSUE OF

MATERIAL FACT FOR TRIAL EXISTS AS TO WHETHER

ESTABLISHMENTS WHICH DEAL EXCLUSIVELY IN

TAKE-HOME CONSUMPTION CAUSE ANY ADVERSE

SECONDARY EFFECTS.

Even assuming a patently absurd proposition that a

City Council could conclude that because an establishment

which features 100 percent adults-only material and has on-

premises consumption of such material causes adverse

secondary effects, the same secondary effects are caused by

an establishment with only 11 percent adult material and no

on-premises consumption, that does not answer the question

raised by the doctrine enunciated by the United States

Supreme Court in United States v. Carolene Products Co.,

304 U.S. 144 (1938), in which the Court stated:

“Where the existence of a rational basis for

legislation whose constitutionality is attacked

depends upon facts beyond the sphere of

judicial notice...the constitutionality of a

statute predicated upon the existence of a

particular state of facts may be challenged by

showing to the court that those facts have

ceased to exist." 304 U.S. at 153, 58 S.Ct. at

784.

In this regard, the decision of the district court in the

Mita ke eyes

‘at ee SNS AT RAR este

instant case is plainly in conflict with the decision of Third

Circuit in New Jersey Citizens Action v. Edison Township,

797 F.2d 1250 (3d Cir. 1986), in which the court invalidated,

under the First Amendment, an ordinance prescribing door-

to-door political canvassing and soliciting after 5 p.m. In

doing so, the court overruled a panel the same court had

made only two years earlier in Pennsylvania Alliance for Jobs

& Energy v. Council of the Borough Munhall (PAJE), 743

F.2d 182 (3d Cir. 1984), in that the Plaintiffs in the latter

case made a factual showing that solicitations after 5 p.m. did

not contribute to burglary which was the factual basis for

upholding the ordinance in the earlier decision.

Likewise, in the instant case, a district court had

before it uncontradicted evidence from studies in other

jurisdictions that plainly demonstrated that take-home

establishments do not cause the same adverse secondary

effects as do establishments which feature on-premises

consumption. This plainly creates, at minimum, a genuine

issue of material fact for trial.’

ONCLUSION

For all of the foregoing reasons, the writ of certiorari

should be issued to the Minnesota supreme Court, and the

decision of the Minnesota Supreme Court should be

reversed.

's In this regard, See Z.J. Gifts v. City of Aurora, supra, 932 F. Sup.

1256, 1258 (D. Colo. July 23, 1996), in which the court noted that there

was no evidence that the Plaintiff's similar business establishment in

another city had caused adverse secondary effects and no evidence that the

business had caused adverse secondary effects in the city of Aurora in 2 %

years.

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: Randall D.B. Tigue ;

q 2620 Nicollet Avenue

; Minneapolis, Minnesota 55408

)

(612) 874-9903

Attorney for Petitioner

Minn. Att. I.D. No. 110000

Dated: November 1, 1996. :

SE ee UE SOI eRe U Yee ee ms

Sabet Ad ang Rs Sea See

;

APPENDIX

Order of Minnesota Supreme Court

denying further review

Opinion of Minnesota Court of Appeals

Order and Memorandum of Judge

Ellen Maas of Anoka County District Court .

Order and Memorandum of James

Morrow of Anoka County District Court

Pertinent portions of text of Ramsey

City Ordinance No. 90-23

Text of the First and Fourteenth

Amendments to the United States

Constitution

Joint Answer of Defendants

Affidavit of Robert Bruce McLaughlin,

dated 11/94 ; :

Affidavit of Cammille Nelson

Affidavit or Robert Bruce McLaughlin,

dated 4/13/95 and =

exhibits

Affidavit of Randall D.B. Tigue

and Exhibit :

Affidavit of Larry Allan Holmberg

Amended Complaint in federal litigation

A.l

A.2

Alli

A.21

A.44

A.52

A.53

A.56

A.59

A.6l

A.83

A.89

A.9I

STATE OF MINNESOTA

IN SUPREME COURT

C5-95-2346

City of Ramsey,

Respondent,

VS.

Arnold Holmberg,

Appellant.

ORDER

Based upon all of the files, records and proceedings

herein,

IT IS HEREBY ORDERED that the Petition of

Arnold Holmberg and the conditional petition of the City of

Ramsey for further review be, and the same are, denied.

IT Is FURTHER ORDERED that the requests of the

League of Minnesota Cities and the Minnesota Civil Liberties

Union to serve and file briefs as amicis curiae are accordingly

denied.

Dated: August 6, 1996.

BY THE COURT:

ls/

Chief Justice

Finance and Commerce Appellate Court Edition May 31, 1996

COURT OF APPEALS

CIVIL OPINIONS

State of Minnesota

In Court of Appeals

City of Respondent,

Respondent,

vs.

Arnold Holmberg,

Appellant.

Filed May 28, 1996

Affirmed

Schumacher, Judge

Davies, Judge (Dissenting)

Anoka County District Court

File No. C9-94-3310

James J. Thomson, Kennedy & Graven, chartered, 470 Pillsbury

Center, Minneapolis, Minnesota 55402 (for Respondent)

Randall D.B. Tigue, Patrice M. Feterl, 2620 Nicollet Avenue,

Minneapolis, Minnesota 55408 (for Appellant)

Considered and decided by davies, Presiding judge, Parker,

Judge and Schumacher, Judge

SYLLABUS

1. This court will not address an issue decided

adversely to a Respondent if the Respondent fails to file a

notice of review.

2. City of Ramsey Ordinance 90-23, which

regulates the location of adult businesses, is a constitutionally

valid restriction on the time, place, and manner of speech and

is not impermissibly overbroad.

3. City of Ramsey Ordinance 90-23 is not vague

merely because it does not specify a time period in which the

percentage of revenue derived from the sale of adult goods

must be calculated.

OPINION

SCHUMACHER, Judge (Hon. Ellen L. Maas, District Court

Trial Judge)

Larry Holmberg and the Amusement Center, Inc.’

appeal from summary judgment granted to respondent City of

Ramsey (the city), arguing that a zoning ordinance is overbroad

and vague. We affirm.

FACTS

Larry Holmberg (Holmberg) owned and operated a

business in the city called the Amusement Center, Inc. When

it opened in 1990, it sold adult books, magazines, and novelties;

it also operated booths for viewing adult movies. At the time

the Amusement Center opened, the city had no ordinances

governing the location of adult businesses, and there were no

other adult businesses operating in the city. The city council

decided to study how adult businesses affect neighborhoods and

hired a professional city planner to investigate. The planner

complied and analyzed neighborhood impact studies from other

cities and assessed the city’s general zoning plan. Based on the

planner’s report and the city planning commission’s

recommendation, the city council concluded that adult

businesses like the Amusement Center produce negative

"secondary effects," such as increased crime, lower property

values, and general neighborhood blight.

The council amended the city’s zoning ordinance to

categorize adult businesses into either “adult use principal" or

"adult uses-accessory." Under the ordinance, an adult use is a

business emphasizing the display or description of certain

sexual activities or anatomical areas. An adult use-principal

business is defined as one having more than 10% of stock or

floor area allocated to, or more than 20% of gross receipts

derived from, any adult use. An adult uses-accessory business

‘After this matter was fully briefed, argued and submitted to this court for

decision, Larry Holmberg and the Amusement center, Inc., conveyed to

Arnold Holmberg their interests in the business and real estate subject to the

injunction at issue in this appeal. Accordingly, Arnold Holmberg has been

substituted as the appellant in the caption of the case, but because Larry

Holmberg and the Amusement Center, Inc., litigated this case in the district

court and in this court, we continue to refer to them in our opinion.

Nae aa ccc ae mae ansenuae n Sai SGA

is defined as one having 10% or less of stock or floor area

devoted to, or 20% or less of receipts derived from, adult

movie rentals or magazines sales. The ordinance provides that

an adult use-principal business must be located at least 1,000

feet from certain protected uses, including residential zones,

day-care centers, schools, parks liquor stores, and churches.

The Amusement Center violated the ordinance because it was

an adult use-principal business and was located within 1,000 feet

of residentially-zoned property, a day-care center, a church, and

a bowling alley that serves liquor.

Holmberg unsuccessfully challenged the constitutionality

of the ordinance in a federal court action, arguing that it

violated the First and Fourteenth Amendments. Schneider v.

City of Ramsey, (D. Minn. 1992), affd sub nom. Holmberg v.

City of Ramsey, 12 F. 3d 140 (8th Cir. 1993), cert. denied, 115

S.Ct. 59 (1994).

The city then brought this action seeking declaratory

relief and an injunction preventing Holmberg from operating

his business. In opposition to the city’s motion for summary

judgment, Holmberg contended _ the ordinance was

unconstitutional as applied to his changed business. Holmberg

noted that he changed his business by eliminating the viewing

booths and adding non-adult merchandise so that only 25% of

the stock and floor area was devoted to sexually-oriented

material. Hcimberg argued that because the nature of his

operation at the time of the federal litigation prevented him

from raising an overbreadth claim, the doctrines of collateral

estoppel and res judicata did not prevent him from again

litigating the constitutionality of the ordinance.

The district court granted in part and denied in part the

city’s summary judgment motion. The court granted the motion

with respect to the city’s claim that the ordinance is a content-

neutral time, place, and manner regulation. The court denied

the remainder of the motion, concluding that there were

genuine issues of material fact about (1) whether the studies

relied on by the city address the effects of adult bookstores with

no on-premises consumption of material and (2) whether the

ordinance affects only the types of businesses shown to produce

unwanted secondary effects. The court invited the city to

supplement the record and stated that if the city could show

there were no issues of material fact regarding these two

factors, "a permanent injunction should issue."

The city renewed its motion for summary judgment and

submitted copies of all the materials relied on by the city when

it enacted the ordinance. The district court found that, based

on the expanded record, the ordinance was constitutional and

granted the city’s request for a permanent injunction.

Judgement was entered for the city.

ISSUES

3 Are the issues of res judicata or collateral

estoppel properly before this court?

2. Is the city’s zoning ordinance unconstitutionally

overbroad?

3. Is the city’s zoning ordinance unconstitutionally

vague?

ANALYSIS

1. The city argues that Holmberg is precluded by

the doctrines of res judicata and collateral estoppel from

litigating the constitutionality of the ordinance. Holmberg

contends, and we agree, that this issue is not properly before

this court because the city did not file a notice of review.

Even if the judgment below is ultimately in its favor, a

party must file a notice of review to challenge the district

court’s ruling on a particular issue. Arndt v. American family

Ins. Co., 394 N.W. 2d 791, 793 (Minn. 1986). If a party fails to

file a notice of review pursuant to Minn. R. Civ. App. P. 106,

the issue is not preserved for appeal and a reviewing court

cannot address it. Potter v. LaSalle Sports & Health Club, 368

N.W. 2d 413, 418 (Minn. App. 1985), aff'd, 384 N.W. 2d 873

(Minn. 1986). Under 413, 418 (Minn. App. 1985), aff'd 384 N.W.

2d 873 (Minn. 1986). Under this procedural posture of this

case, it is appropriate for this court to review both of the

district court’s orders on the city’s motions for summary

judgment. See Minn. R. Civ. App. P. 103.04 (on appeal from

judgment, appellate court may review any order involving

merits or affecting judgment).

The city argued to the district court that the

constitutionality of the zoning ordinance was fully litigated in

the federal action, and res judicata or collateral estoppel barred

the claim in state court. The district court ruled against the

city on this issue. In its order filed January 20, 1995, the district

court ruled that in the federal litigation, Holmberg

would have been precluded from raising the

overbreadth of the provisions as a constitutional

challenge***,since[he] clearly fell within the

core of the zoning ordinance provision.

See Dorso Trailer Sales v. American Body & Trailer, 482 N.W.

2d 771, 774, (Minn. 1992) (res judicata only bars matters that

were litigated or could have been litigated). In its renewed

summary judgment motion, the city did not argue res judicata

or collateral estoppel, and in its September 5, 1995, order, the

district court did not address the issue, stating that it was bound

to follow the rule of case as determined by its first order.

Because the issue was decided adversely to the city, the city was

required to file a notice of review in order for this court to

address it.

Determining whether an ordinance is

constitutional is a question of law, and this court need not

defer to the district court’s conclusions. In re Billie, 494 N.s. 2d

877, 881 (Minn. 1993). An ordinance is presumed

constitutional and the burden of proving otherwise rests on the

party attacking its validity. City of St. Paul v. Daisin, 245

Minn. 325, 329, 71 N.W. 2d 855, 858 (1955). An overbroad

restriction of expression is unconstitutional. New York v.

Ferber, 458 U.S. 747, 769, 102, S.Ct. 3348, 3361 (1982). The

doctrine of overbreadth, which invalidates entire statutes, is

"strong medicine” and should be applied cautiously. Osborne

v. Ohio, 495 U.S. 103, 122, 10 S.Ct. 1691, 1703 (1990) (quoting

Broadwick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 2916

(1973).

Because the city’s ordinance does not ban adult

A6é

businesses completely, but merely limits the areas in which they

may operate, it is properly analyzed as a time, place, and

manner regulation. See City of Renton v. Playtime Theatres,

475 U.SAl, 46, 106, 106 S.Ct. 925,928 (1986), (time, place, and

manner regulation analysis applies where ordinances does not

ban adult business altogether, but merely regulates its location).

Such regulations are valid if they are content-neutral and are

"designed to serve a substantial governmental interest and do

not unreasonably limit alternative avenues of communication."

Id. at 47, 106 s.Ct. at 928.

Local governments may restrict adult businesses in

order to curb their unwanted "secondary effects." Id. at 106

S.Ct. at 929-30. In determining whether the secondary effects

of adult businesses justify regulation, a city is not required to

conduct its own study, but may rely on the studies and

experiences of 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 51-

52, 106 S.Ct. at 931.

Holmberg argues that the ordinance is overbroad in its

definition of "adult use-principal" because it is not limited to

the specific types of businesses that have been shown elsewhere

to cause adverse secondary effects. He claims no studies have

shown that businesses such as his current operation --those with

off-premises consumption and a majority-of stock and floor

space devoted to non-adult material--cause undesirable

secondary effects. This same argument was rejected by the

Eighth Circuit in ILQ Investments v. City of Rochester, 25 F.

3d 1413 (8th Cir.), cert. denied IIS S.Ct. 578 (1994). In ILQ, an

adult business argued that it was unreasonable for the City of

Rochester to rely on other cities’ studies because they did not

address similar businesses-those that offer non-sexually explicit

as well as sexually explicit materials and do not allow on-

premises consumption of such materials. Id. at 1417. The court

soundly rejected this argument, stating:

That is simply not the law *** Under City of

Renton, Rochester need not prove that

Downtown Book and Video would likely have

the exact same adverse effects on _ its

surroundings as the adult businesses studied by

Indianapolis, St. Paul, and Phoenix. So long as

Ordinance No. 2950 affects only categories of

businesses reasonably believed to produce at

least some of the unwanted secondary effects,

Rochester "must be allowed a_ reasonable

opportunity to experiment with solutions to

admittedly serious problems.” ***Even if

Downtown Book and Video is a new type of

adult business, it may not avoid time, place, and

manner regulation that has been justified by

studies of the secondary effects of reasonably

similar businesses.

Id. at 1418 (footnote omitted) (quoting Young v. American Mini

Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 2453 (1976)

(plurality opinion)).

We find the district court was correct in concluding that

in this case, as in ILQ, the city’s reliance on voluminous studies,

reports, and reference materials satisfies the City of Renton

test. Any businesses affected by the ordinance are those that

the city reasonably believed cause undesirable secondary effects.

The council had before it a planning report that

specifically addressed the city’s concerns. In preparing the

report the planner examined articles, reports, and background

materials from throughout the United States, as well as

information provided by the city. In addition to the planning

report, the city examined reports from the cities of Rochester,

St. Paul, Phoenix, and Seattle, which deal with "reasonably

similar businesses." As the district court noted, most of the

studies and reports relied on by the City of Ramsey “are the

same studies upon which the City of Rochester relied in ILQ."

The council had before it a planning report that specifically

addressed the city’s concerns. In preparing the report, the

planner examined articles, reports, and background materials

from throughout the United States, as well as information

provided by the city. In addition to the planning report, the

city examined reports from the cities of Rochester, St. Paul,

Phoenix, and seattle, which deal with "reasonably similar

businesses." As the district court noted, most of the studies and

reports relied on by the City of Ramsey "are the same studies

upon which the City of Rochester relied in ILQ.." The council

had sufficient information about adult businesses in general to

enact a valid ordinance.

Holmberg argues that the record here--unlike that in

ILQ consists of two studies showing that the sale of purely

take-home merchandise does not produce unwanted secondary

effects. These studies were not before the city, however, at the

time it enacted the ordinance. Moreover, they fail to raise a

genuine issue as to whether the city reasonably believed that

the businesses to which the ordinance applies produce at least

some of the unwanted secondary effects experienced by other

cities.

nA Part of the definition of an "adult use-principal"

business is that more than 20% of gross receipts are derived

from an adult use. Holmberg argues that the ordinance is

vague because it does not specify a time period during which

the 20% figure is to be calculated. We disagree. The lack of

a definite time period in which to apply the terms of the

ordinance is not fatal. See generally Humenansky v. Minnesota

Bd. of Medical Examiners, 525 N.W. 2d 559, 564 (Minn. App.

1994) (statute is not unconstitutionally vague merely because

some marginal fact situation may pose difficulty of application),

review denied (Minn. Feb. 14, 1995)

DECISION

Ordinance 90-23 is neither impermissibly overbroad nor

vague.

Affirmed.

DAVIS, Judge (dissenting)

I respectfully dissent.

In prior litigation it was determined that the City of Ramsey

ordinance was neither facially unconstitutional nor

- aetna -

are a

unconstitutional as applied in Amusement Center, Inc.

Holmberg v. City of Ramsey, 12 F. 3d 149 (8th Cir. 1993), cert.

denied, IIS S.Ct. 59 (1994) (Holmberg 1). Holmberg now

contends, however, that Amusement Center’s operation is

significantly different from its prior business. Holmberg seeks

again to challenge--on constitutional grounds--the application

of the ordinance in Amusement Center.

In my view, Amusement Center’s current off-sale

operation is so significantly different from its prior on-sale

business that Holmberg should have the opportunity to again

challenge the ordinance on constitutional grounds; not facially,

of course, but as applied to his current operation.

The on-sale/off-sale distinction is fundamental.

Amusement confronts the court with an issue regarding the

underpinnings of the ordinance distinct from the question

faced in Holmberg I. The finding of constitutionality in

Holmberg I would not be controlling as to Holmberg in his

current conduct of this significantly different off-sale business.

ILQ Investments v. City or Rochester, 25 F. 3d 1413 (8th

Cir.) cert. denied, 115 S.Ct. 578 (1994), likewise falls short of

conclusiveness on the absence of on-sale/off-sale distinction that

might be applicable to Holmberg.

Al0

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF ANOKA TENTH JUDICIAL DISTRICT

City of Ramsey,

Plaintiff,

vs. ORDER

Larry Holmberg and Court File No. C9-94-3310

the Amusement Center, Inc.,

Defendants.

This matter was heard on June 7, 1995 before the

Honorable Ellen L. Maas, Judge of District Court. James

Thomson, Esq., appeared on behalf of Plaintiff. Randall D.B.

Tigue appeared on behalf of Defendant. The Court, upon

reviewing the files, affidavits, and proceedings herein, and upon

hearing the arguments presented, hereby makes the following:

ORDER

1. Plaintiffs request for summary judgment is

GRANTED.

2. A permanent injunction shall issue.

3. All other motions are denied.

4+ The attached memorandum is made part of this

Order.

Dated:_September 5, 1995 /s/

Ellen L. Maas

Judge of District Court

All

MEMORANDUM

FACTUAL AND PROCEDURAL HISTORY

This matter arises from Plaintiff, City of Ramsey’s ("the

City") motion for modification of Judge Morrow’s January 20,

1995 Order, or in the alternative, summary judgment against

Defendants. Larry Holmberg and the Amusement Center, Inc.,

permanently enjoining Defendants from operating the adult

bookstore located at 6710 Highway 10 ("the property") in the

City of Ramsey.

Since April 1990, The Amusement Center, Inc., has

operated a business on the property consisting of the sale of

adults-only books and magazines, the sale of sexual novelties

and the in-store display of adults-only motion pictures in video

; booths. The video booths have been, removed or closed to the

public. the business is located within 1,000 feet from

residentially zoned property, a church, and an on-sale liquor

establishment.

On November 13, 1990, the Ramsey City Council

enacted Ordinance No. 90-23 which, in part, permanently

amended the City code governing the zoning and regulation of

adult uses. Under Ordinances No. 90-23, adult uses may

operate in the City in B-3 and B-W zoning districts provided

that they are at least 1,000 feet from certain uses, including

residentially zoned property, churches, and on-sale liquor

establishments. Adult uses operating in any other location are

prohibited under the ordinance.

In March 1991, Defendants commenced an action against

the City in federal court unsuccessfully challenging the

constitutionality of Ordinance No. 90-23. See Schneider v. City

of Ramsey, 800 F. Supp. 815 (D. Minn. 1992). In their

complaint in that action, Defendants admitted that their

business violated Ordinance No. 90-23. See Schneider v. City

of Ramsey, 800 F. Supp. 815 (D. Minn. 1992). In Holmberg v.

City of Ramsey, 12 F. 3d 140 (8th cir. 1993), the Eighth Circuit

Court of Appeals upheld the ordinance. The United States

Supreme Court denied Defendants’ writ of certiorari. 115 S.Ct.

59, 130 L.

OO Ee ee

Al2

Ed. 2d 17, 63 U.S.L.W. 3257 (1994).

In March 1994, Plaintiff commenced this action to

permanently enjoin Defendants from operating their business

in its present location. On October 10, 1994, Plaintiff moved for

summary judgment seeking (1) a declaratory judgment declaring

that Defendants’ use of the property is a prohibited use under

Ordinance No. 90-23 and (2) a permanent injunction

prohibiting Defendants from operating an adult bookstore on

the property. Defendant contend that since December 30,

1993, (the date on which the Eighth Circuit affirmed Judge

Murphy’s decision upholding Ordinance No. 90-23), the video

booths have been closed to the public and because of this

change the subject ordinance is now impermissibly broad and

therefore unconstitutional.

On January 20, 1995, the Honorable James A. Morrow

issued an Order granting in part and denying in part Plaintiff's

motions. Judge Morrow granted Plaintiffs motion for

declaratory judgment, declaring that Defendants’ use of the

property is a prohibited use under Ordinance No. 90-23. In

addressing the constitutionality of Ordinance No. 90-23 Judge

Morrow followed City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 106 S.Ct. 925, 89 L.Ed. 2d 29 (1986) in which the United

States supreme Court held that a statute or ordinance

regulating adult uses is constitutional if: (the statute or

ordinance is a content-neutral time, place, and manner

restricting; (2) the government has an important or substantial

interest-in regulating adult entertainment business which is

unrelated to the suppression of free speech, and (3) the

incidental restriction on First Amendment freedoms is no

greater than essential to further the government’s interest. See

Judge Morrow’s January 20, 1995 Order, p. 20.

Judge Morrow held that the City’s ordinance is content-

neutral but declined to address the remaining issues, namely

whether the City had an important or substantial interest in

regulating adult uses and whether the ordinance was narrowly

tailored, because the studies upon which the City relied were

not part of the record. Judge Morrow denied the city’s request

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Re ne ee

for a permanent injunction but invited the City to supplement

the record and further stated that if the city could satisfy the

remaining two elements, "a permanent injunction should issue."

Judge Morrow's January 20, 1995 Order, paragraph 6.

The City now has submitted those studies to this Court

and requests that this Court rule on the two issues left

unanswered by Judge Morrow. This Court must follow the rule

of the case as determined by Judge Morrow in his January 20,

1995 Order. Accordingly, this Court’s analysis is limited to

determining whether the City has satisfied the last two prongs

of the City of Renton test: (1) whether the City had a

substantial governmental interest in regulating adult

entertainment businesses which was unrelated to the

suppression of free speech; and (2) whether Ordinance No. 90-

23 is sufficiently tailored to affect only that category of

businesses shown to produce the unwanted secondary effects.

ANALYSIS

I, THE CITY HAS A _ SUBSTANTIAL

sOVERNMENTAL IN N T

USES

The substantial governmental interest asserted by the

City is its interest in limiting the adverse secondary effects of

adult uses. The eighth Circuit stated that "it is not enough for

the city merely to give lip service to a legitimate governmental

interest. The City also has the burden to substantiate its

declaration that zoning regulations are needed to curb

unwanted secondary effects of sexually oriented business that

operate in Ramsey." Holmberg v. City of Ramsey, I2 F. 3d 140,

143 (8th cir. 1993). In identifying and measuring the unwanted

secondary effects of adult uses, a city may rely upon studies or

evidence generated by other cities "so long as [that] evidence...is

reasonably believed to be relevant to the problem that the City

addresses". ILO Investments v. City of Rochester, 25 F. 3d 1413

(8th Cir. 1994) citing City of Renton y. Playtime Theaters, 475

US. 41, 51 106 S.Ct. 925, 931, 89 L.Ed. 2d 29 (1986).

The city chose to rely on studies conducted by other

cities in drafting its zoning ordinance. Judge Morrow stated

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that "[t]he problem faced by this Court in that it cannot

determine from the record as it has developed thus far whether

the studies on which the City relied include adverse secondary

effects of adult bookstores without on-premiss consumption".

See Judge Morrow’s January 20, 1995 Order p. 22. Judge

Morrow noted that the case at bar may be distinguishable from

ILQ Investments and as such, may require the city to consider

studies addressing adverse secondary effects of adult bookstores

without on-premises consumption. Accordingly, Judge Morrow

declined to rule on the issue but invited the City to supplement

the record with the actual studies. following the law of the case

as determined by Judge Morrow, this Court must find that if

the City relied on studies that are reasonably believed to be

relevant to th unwanted secondary effects of adult uses, the

City will have met its burden of establishing that there is a

substantial governmental interest in regulating adult businesses.

In ILQ the owner of an adult bookstore challenged the

constitutionality of the City of rochester’s zoning ordinance

defining and restricting the location of adult establishment uses.

The adult bookstore in ILQ segregated forty percent of its floor

space into an adults-only selling area selling sexually explicit

books, magazines, and novelty items. The store had no

facilities for on-premises viewing of these sexually explicit

materials.

The City of Rochester’s Common Council directed the

Planning commission to study the effects of adult entertainment

uses. The Planning Department published the results of its

study. This report discussed the relevant legal issues and

precedents and summarized studies of the adverse secondary

effects of adult entertainment businesses conducted by other

cities including Minneapolis, St. Paul, Phoenix and Indianapolis.

the Rochester Common Council found that the other cities’

Studies were relevant to the existing or foreseeable impact

which such uses can have. Based upon these studies and a

public hearing, the Rochester Common Council adopts its

adults uses zoning ordinance.

Plaintiffs in ILO challenged the bases of the city relied

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on in adopting the ordinance. Plaintiffs claimed that because

the studies relied on by the city did not specifically address

businesses similar to the store at issue, i.e., a bookstore that

offers both sexually explicit and non-sexually explicit materials

and allows only off-premises consumption of those materials,

the city’s concern over secondary effects was not legitimate and

the ordinance was not narrowly tailored. Id. at 1417. The

Eighth Circuit rejected this argument stating:

The studies the Common Council found

relevant to Rochester’s problems identified and

measured adverse secondary effects linked to

adult businesses generally -- higher crime,

neighborhood deterioration, lower property

values, and an increase in transients -- as well as

adverse secondary effects specifically

attributable to adult bookstores.

Id. at 1417-1418.

The instant case is on all fours with ILQ. This Court has

reviewed the voluminous studies, reports, reference materials

and affidavits submitted by the City. This Court finds that the

legislative history of Ordinance No. 90-23 demonstrates that the

City has satisfied the second prong of the City of Renton test.

-The City retained Northwest Associated Consultants,

Inc., to conduct a planning and zoning study of adult uses. In

September 1990, the consultants published the results of its

study in a report entitled, "City of Ramsey Adult Use Planning

Report" ("The Planning Report"). The purpose of the study

was to determine the primary and secondary effects of adult

uses in the City, the appropriate locations of adult uses within

the community and the appropriate and harmonious regulation

of adult uses and other uses.

In their analysis and evaluation of adult uses, the

authors of the Planning Report relied upon two primary

categories of resources. The first resource category included

several studies, articles, reports and background materials from

all over the United states including Minnesota, all of which are

Al6

on file with the City Offices.? The second resource category

included information from the City. Specifically, the May 29,

1990 public hearing conducted by the Ramsey Mayor, City

Council, Planning Commission, and staff, the transcript of those

proceedings and current Ramsey Police Department complaint

records generated in connection with adult use activities within

the City.

The Planning Report which contains an extensive

analysis of actual and proposed zoning districts designed to

provide specific opportunities for adult uses within the City,

offered the following conclusions:

1. Activities defined as adult uses are protected by

the First Amendment to the United States Constitution.

2. A community must provide reasonable

The Planning Report identified the following reference materials:

Report of the Attorney General’s Working Group on the Regulation of

Sexually Oriented Businesses, June 6, 1989.

Rochester/Olmsted Planning Department Adult entertainment Research

Report, March 2, 1988. ASPO Planning Advisory Service Report #327:

regulating Sex businesses by William Toner, May, 1977

Adult Entertainment Businesses in Indianapolis, an analysis, february 1984.

Relation of Criminal Activity and Adult Businesses; prepared by the City of

Phoenix Planning Department May 1979.

American Law of zoning: 17.01; 17.02.

Application of Miller’s Test by Jury.

Surveys of X-Rated Pornographic Activity in Dakota County 1986-1989, May

20, 1989.

Law Enforcement Cooperation; National Coalition Against Pornography, Inc.

Pornography Changes Attitudes and Actions, June 1989.

Pornography Destroys, Dallas Association for Decency.

Uncovering Obscene Materials - A Mother’s Approach.

Adult Entertainment, Supplement Study, St. Paul Division of Planning, 1988.

Adult Entertainment, 40 Acre Study, St. Paul Division of Planning, 1987.

City of Coon Rapids, City Code-Licenses.

Director's Report, Adult Entertainment, Department of Construction and

Land Use, City of Seattle, Washington, August 1989.

City of Renton v. Playtime Theater, Inc., et al

475 US. 41 (1986).

City of Minneapolis City Code

Al7

opportunity for adult uses to exist. The Renton Washington

Supreme Court case provides a guidance in this regard.

3. Adult uses may produce a secondary impact or

effect which is judged as negative to the health, safety, and

general welfare of the community and as a result, these

secondary impacts or effects can be controlled.

4. A community, due to the secondary impact of

adult uses, can regulate such activities and restrict their

proximity to sensitive activity sites which are typically oriented

toward minors.

3 Due also to secondary impacts, a community can

maintain the separation of adult uses from one another.

6. A community has the right to police adult uses

to insure they are operating in a fashion where the secondary

impacts or effects are mitigated to the extent possible.

City of Ramsey Adult Use Planning Report, September 20, 1990,

p. 3.

The City relied on the Planning Report, as well as

reports from the cites of Rochester, St. Paul, Phoenix, Seattle,

and thee ASPO report when it passed Ordinance No. 90-23.

This Court notes that most of these studies and reports are the

same studies upon which the City of Rochester relied in ILQ.

The City passed its zoning ordinance relying on other

cities’ studies showing that sexually oriented businesses have an

adverse impact on surrounding neighborhoods. When the

ordinance was passed, the City Council had reliable evidence

before it that businesses like Holmberg’s produce undesirable

side effects. In the companion federal case, the Eighth Circuit

Court of Appeals upheld the District Court’s decision

concerning the second prong of the City of Renton test:

"Because the City reasonably believed the studies were relevant

to the problems i Ramsey, City satisfied its burden." Holmberg

v. City of Ramsey, 12 F. 3d 140 (8th Cir. 1993) citing Renton,

475 U.S. at 51-52. Thus, the provisions of the ordinance

requiring Holmberg to relocate his business represented a

legitimate governmental response to a substantial interest.

II. ORDINANCE _NO.__90-23_ DOES NOT

Als

UNREASONABLY_ LIMIT ALTERNATIVE AVENUES OF

COMMUNICATION

Under the third prong of the third prong of the City of

Renton test, the City must demonstrate that Ordinance No. 90-

23 is narrowly tailored so as not to unreasonably limit

alternative avenues of communication. See Janra Enterprises,

Inc. v. City of Reno, 818 F. Supp. 1361 (D. Nev. 1993) and

Renton y. Playtime Theatres, Inc., supra. Defendants contend

that the City was constitutionality required to disregard the

studies upon which it relied in passing Ordinance No. 90-23

because none of those studies evaluated the secondary effects

of adult establishments like the Amusement Center, Inc.

Defendants’ argument is not persuasive.

Again in ILQ the court rejected the store owner’s

argument that the City of Rochester must disregard the studies

used because non evaluated the secondary effects of bookstores

offering non-adult as well as adult materials and having no

facilities for on-premises consumption by stating: "[t]hat is

simply not the law. The requirement of narrow tailoring is

satisfied ‘so long as the...regulation promotes a substantial

government interest that would be achieved less effectively

absent the regulation” Id. at 1418 citing Ward v. Rock Against

Racism, 491 U.S. 781, 791, 105 L.Ed. 2d 661 (1989).

Under Ordinance No. 90-23, sexually orientated

businesses like Defendants’ adult bookstore can locate

anywhere within the authorized commercial zones, provided the

location is at least 1000 feet from the protected uses. In the

City of Renton, the U.S. supreme court stated that the subject

ordinance withstood Respondents’ First amendment challenge

so long as the City refrained from "effectively denying

Respondents a reasonable opportunity to open and operate an

adult theater within the city." City of Renton, 475 U.s. at 54.

This Court holds that because Ordinance No. 90-23 provides

defendant with potential relocating sites in accessible

commercially zoned areas, the ordinance does not unreasonably

Al9

limit alternative avenues of communication.’

CONCLUSION

Judge Morrow previously determined that Ordinance

No. 90-23 is a valid content-neutral time, place, and manner

restriction. This Court now holds that the city has an

important or substantial interest in regulating adult

entertainment businesses that is unrelated to the suppression of

free speech and that the incidental restrictions on First

Amendment freedoms is no greater than essential to further

the City’s interest. The City was reasonable in relying on

studies from other cities which addressed the negative

"secondary effects" often associated with sexually oriented

businesses. In addition, Ordinance No. 20-23 is sufficiently

narrowly tailored so as to allow alternative avenues of

communication.

Therefore, this Court holds that ordinance No. 90-23 is

constitutional and Plaintiff's request for a permanent injunction

is hereby granted.

‘Defendants contend that the 10 percent restriction in Ordinance 90-23 is

overly broad and therefore unconstitutional. This Court notes that the 10

percent restriction in and of itself does not make the ordinance overly broad

and unconstitutional. This Court notes that the 10 percent restriction in and

of itself does not make the ordinance overly broad and unconstitutional. the

10 percent restriction is simply used to define an adult use. Defendants are

not restricted from operating an adult bookstore that has 100% of its

inventory in sexual materials as long as it operates such a store within a

properly zoned area.

ee ices

PAA han sinks nas ee Ae

A20

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF ANOKA TENTH JUDICIAL DISTRICT

City of Ramsey,

Plaintiff,

VS. ORDER

Larry Holmberg and the

Amusement Center, Inc., a Court File No.

Minnesota Corporation, . C9-94-3310

Defendants.

The above-captioned matter came on before the

undersigned Judge of District court on October 10, 1994, on

Plaintiffs motion for summary judgment. Plaintiff requested

(l)a declaratory judgment declaring that Defendants’ use of

property located at 6710 Highway 10 in the City of Ramsey is a

prohibited use under the City’s zoning ordinance and (2) a

permanent injunction prohibiting defendants from operating an

adult bookstore on that property.

Plaintiff was represented by Mr. James J. Thomson,

Esq., of Holmes & Graven, Chartered, 470 Pillsbury Center,

Minneapolis, Minnesota 55402.

Defendants were represented by Mr. Randall D.B.

Tigue, Esq., 2620 Nicollet Avenue, Minneapolis, MN 55408.

The last brief was received on November 3, 1994.

Based upon the arguments and memoranda of counsel

and all of the files, records, and proceedings herein, the Court

makes the following:

ORDER

4 Plaintiffs motion for summary judgment is GRANTED

IN PART and DENIED IN PART.

3 Defendants’ use of the property located at 6710 Highway

10 in the city of Ramsey is a prohibited use under the City’s

zoning ordinance. Plaintiff is entitled to a declaratory judgment

and its motion is GRANTED.

a Defendant Holmberg was evading service of process

within the state of Minnesota and Defendants were therefore

A21

Feed

poe

ts A, Sie a FI

ipa ine HS

asthe

4 ae

properly served by publication in accordance with Minn. R. Civ.

P. 4.04(a). Plaintiff's motion is GRANTED in that respect.

4 The zoning ordinance is a content-neutral time, place,

and manner regulation. Plaintiffs motion is GRANTED in

that respect.

a Plaintiff is not entitled to have the remainder of its

motion granted as there are two genuine issues of material fat

left to be resolved. First, whether the zoning ordinance is

reasonably believed to be relevant to the problem that the City

of Ramsey seeks to address, and second, whether the zoning

ordinance is sufficiently narrowly tailored to affect only that

category of businesses shown to produce the unwanted

secondary effects.

6. Although Plaintiffs motion for a permanent injunction

cannot be granted, the issues left for trial are narrowed to the

two outlined above in paragraph 5 of this Order. If Plaintiff is

able to prove the above two facts, a permanent injunction

should issue.

os The attached memorandum is incorporated into this

Order.

8. The Court Administrator shall notify the parties of this

Order by mailing copies of the same to the parties’ attorneys,

whose names and addresses appear on the first page.

BY THE COURT:

ls/

James A. Morrow

Judge of District Court

_ Tenth Judicial District

Dated:_1/20/95.

MEMORANDUM

FACTS

Defendant Larry Holmberg is the owner of property

("the property") located at 6710 Highway 10 in the City of

Ramsey. Since April, 1990, the Amusement Center, Inc., has

operated a business on the property consisting of the sale of

adults-only books and magazine., the sale of sexual novelties

and the in-store display of adults-only motion pictures in video

A22

a“

booths. The video booths are now blocked off from the public.

The business is located within 1,000 feet from residentially

zoned property, a church, and an on-sale liquor establishment.

On November 13, 1990, the Ramsey City Council

enacted Ordinance No. 90-23 which, in part, permanently

amended the City Code relating to the zoning and regulation

of adult uses. Pursuant to the ordinance, adult uses may

operate in the City of Ramsey in B-3 and B-W zoning districts

provided that they are at least 1,000 feet from certain uses,

including residentially zoned property, churches, and on-sale

liquor establishments. Adult uses operating in any other

location are prohibited by the Ordinance.

In March, 1991, Defendants commenced an action

against the City of Ramsey in the United States District Court

for the District of Minnesota. In their complaint in that action,

Defendants admitted that their business violated the ordinance,

but challenged its constitutionality. Following a trial, the

District Court upheld the ordinance. Schneider v. City of

Ramsey, 800 F. Supp. 815 (D. Minn. 1992). Following an appeal

by Defendants, the United States Eighth Circuit Court of

Appeals affirmed the District Court. Holmberg v. City of

Ramsey, 12 F. 3d 140 (8th Cir. 1993). The United States

Supreme Court denied defendants’ writ of certiorari on

October 3, 1994. 115 S.Ct. 59, 130 L.Ed. 17, 63 U.S.L.W. 3257

(1994).

The present action is brought by the City of Ramsey to

enforce the provisions of its zoning ordinance.

ANALYSIS

Summary Judgment Standard

Summary judgment is proper only if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, show that there is no genuine issue

of material fact and that either party is entitled to judgment as

a matter of law. Minn. R. Civ. P. 56.03.

The substantive law will identify which facts are

"material." A "material fact" is one that will affect the result or

outcome of the case, depending on its resolution. Anderson v.

A23

Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L.Ed. 2d at 2ll, 106

S.Ct. at 2510. See generally, OA C. Wright, A. Miller & M.

Kane, Federal Practice and Procedure; Civil 2d Section 2725, pp.

89-95 (1993).

A "genuine issue” is one that is not futile to try to a fact

finder; it cannot be one that is sham, frivolous, or unsubstantial.

Benson v. Northern Gopher Enterprises, 446 N.W. 2d 678, 680

(Minn. 454, 456, 160 N.W. 2d 153, 155 (1968).

A material fact is "genuine" if the evidence is such that

a reasonable jury could return a verdict for the non-moving

party. Anderson, 477 U.S. at 248, 91 L.Ed. 2d at 2Il-12, 106 s.Ct.

at 2510. See generally, 10A Federal Practice and Procedure; Civil

2d Section 2725, pp. 95-109.

The standard for granting summary judgment in

Minnesota has developed to follow changes taking place in

federal law. In Carlisle v. City of Minneapolis, 437 N.W. 2d 712

(Minn. Ct. App. 1989), the Minnesota Court of Appeals

considered that:

The United States Supreme Court has stated

that the plain language of Rule 56 mandates the

entry of summary judgment “after adequate

time for discovery and upon motion, against a

party who fails to make a showing sufficient to

establish the existence of an element essential

to that party’s case, and in which that party will

ear the burden of proof at trial. In such a

situation, there can be no ’genuine issue as to

any material fact,’ since a complete failure of

proof concerning an essential element of the

non-moving party’s case necessarily renders all

other facts immaterial."

Carlisle, 437 N.W. 2d at 715, quoting Celotex Corp. v. Carrett,

477 US. 317, 322-23, 91 L.Ed. 2d 265, 273-74, 106 S.Ct. 2548,

2552-53 (1986). If the moving party has sustained its burden of

proof and has negated an essential element of the nonmovant’s

case, the nonmoving party must present affirmative evidence to

defeat the properly supported motion. Carlisle, 437 N.W. 2d at

A24

715. See also, Lloyd v. In Home Health, Inc., 523 N.W. 2d 2,

3(Minn. Ct. App. 1994) ("Summary judgment on a claim is

mandatory against a party who fails to establish an essential

element of that claim, if that party has the burden of proof,

because this failure renders all other facts immaterial").

The moving party has the burden of proving that there

is no genuine issue of material fact. Vieths v. Thorp Finance

Co., 305 Minn. 522, 524, 232 N.W. 2d 776, 778 (Minn. 1975).

when the moving party makes out a prima facie case, the

burden of producing facts that raise a genuine issue shifts to

the opposing party. Thiele v. Stich, 425 N.W. 2d 580, 583

(Minn. 1988), citing Celotex Corp. Summary judgment is proper

in Minnesota when the nonmoving party fails to provide the

court with specific facts indicating that there is a genuine issue

of material fact. See also, St. Louis County attorney’s Office v.

Twenty-Four Thousand Six Hundred Forty-Three and 01/100

Dollars ($24,643,01) in Various Denominations of U.S. Currency

and Twenty-Four Video Poker Machines, 524 N.W. 2d 542,__,

1994 Minn. App. LEXIS 1254 *12 (Minn. Ct. App. 1994), citing

Music Land Group, Inc. v. Ceridian Corp., 508 N.W. 2d 524,

5[30]31 (Minn. Ct. App. 1993). When the moving party has met

its threshold burden, a nonmoving party cannot successfully

resist a motion for summary judgment by "simply show[ing] that

there is some metaphysical doubt as to material facts." Carlisle,

437 N.W. 2d at 715. See also, Matsushita Electric Industrial Co.

1. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89

L.Ed. 2d 538, 552 (1986), cited with approval in Carlisle, 437

N.W. 2d at 715.

The Court must resolve any doubt regarding whether a

fact issue exists or not in favor of finding that a fact issue exists.

Rathbun, 300 Minn. at 230, 219 N.W. 2d at 646. See also, 2A

David F. Herr & Roger S. Haydock, Minnesota Practice Section

56.03, Author’s Comments Section 56.19 (2d ed. 1985). See

further, 1OA Federal Practice and Procedure: Civil 2d Section

2727, pp. 124-25 and 1994 Supplement thereto, at pp. 33-35.

Further, the evidence presented to the Court must be

viewed in the light most favorable to the nonmoving party.

A25

ot mate s3 2

Vieths, 305 Minn. at 524-25, 232 N.W. 2d at 778; Marose v.

Hennameyer, 347 N.W. 2d 509, Sil (Minn. Ct. App. 1984). This

means that all doubts and factual inferences must be resolved

against the moving party. Nord v. Herreid, 305 N.W. 2d 337,

339 Minn. 1991). See also, 10A Federal Practice and Procedure;

Civil 2d Section 2727, pp. 124-25 and 1994 Supplement thereto,

at pp. 33-35. However, the United States Supreme Court has

made it clear that there is

no express or implied requirement in [Federal]

Rule [of Civil Procedure] that the moving party

support its motion with affidavits or other

similar materials negating the opponent’s claim.

On the contrary, Rule 56(c)*, which refers to

"the affidavits, if any" (emphasis added), suggest

the absence of such a requirement. And if

there were any doubt about the meaning of

Rule 56(c)° in this regard, such doubt is clearly

removed by Rules 56(a)® and (b)’, which

provide that claimants and defendants,

respectively, may not move for summary

judgment "with or without supporting affidavits"

(emphasis added). The import of these

subsections is that, regardless of whether the

moving party accompanies its summary

judgment motion with affidavits, the motion

may, and should, be granted so long as

whatsoever is before the district court

demonstrates that the standard for summary

‘Minn. R. Civ. P. 56.03.

»Minn. R. Civ. P. 56.03.

®Minn. R. Civ. P. 56.03.

‘Minn. R. Civ. P. 56.03.

A26

judgment, as set forth in Rule 56(c)*, is

satisfied. One of the principal purposes of the

summary judgment rule is to isolate and dispose

of factually unsupported claims or defenses, and

we think it should be interpreted in a way that

allows it to accomplish this purpose.

Celotex Corp, 477 U.S. at 323-24, 91 L.ed. 2d at 274, 106 S.Ct. at

2553 (emphasis and the words "emphasis added" in original).

Finally, even when the parties do not dispute the facts,

but merely the application of the law as to those facts, summary

judgment is proper. Fire & Cas. Ins. Co. of Connecticut v.

Illinois Farmers Ins. Co., 352 N.W. 2d 798, 799 (Minn. Ct. App.

1994).

Summary Judgment Analysis

Plaintiff argues that there is no genuine issue of

material fact concerning the City of Ramsey’s entitlement to

declaratory judgment and an injunction. Defendants, on the

other hand, argue thet a genuine issue of material fact exists as

to whether Defendants’ current operation is an "adult use" as

defined in the zoning ordinance. Further, Defendants argue

that genuine issues of material fact exist regarding Defendants’

affirmative defense. Defendant assert that they were

improperly served’ and that the ordinance is

unconstitutional’® as applied to defendants’ current use of the

*Minn. R. Civ. P. 56.03.

“Defendant Holmberg is the designated agent for service of process for

Defendant the Amusement Center, Inc. Plaintiffs Reply Memorandum in

Support of Summary Judgment Motion, at 5. Improper service of process on

Defendant Holmberg would be improper service of process on Defendant

The Amusement Center, Inc.

"Defendants argue that the zoning ordinance is unconstitutional under

both the Federal Constitution (First and Fourteenth Amendments to the

United States Constitution) and under the Minnesota Constitution (Article

1, Section 3 Minnesota Constitution). Minnesota’s appellate courts have held

that the state constitution’s freedom of expression guarantee affords as much

A27

property.

; Violati i , i i

! Chapter 9, Section 9.11.19 of the City of ramsey City

Code, added by City of Ramsey Ordinance 90-23 in 1990,

provides in part as follows:

Subdivision |. Purpose. The nature of adult

uses is such that they are recognized as having

: adverse secondary characteristics, particularly

3 when they are accessible to minors and located

near residential property or related residential

uses such as schools, day care centers, libraries

or parks. Furthermore, the concentration of

adult uses has an adverse effect upon the use

and enjoyment of adjacent areas. The nature of

j adult uses requires that they not be allowed

within certain zoning districts, or within

; minimum distances from each other or

residential uses. Special regulation of adult uses

; is mecessary to ensure that the adverse

a peas secondary effects would not contribute or

enhance criminal activity in the area of such

uses nor will it contribute to the blighting or

downgrading of the surrounding property and

lessening of its value.

Subd. 2. General. Adult uses as defined in this

Chapter shall be subject to the following

general provisions:

a. Activities classified as obscene are not

hoped

protection as the First Amendment, Knudtson v. City of Coates, 506 N.W. 2d

: 29, 32 (Minn. Ct. App. 1993), reversed on other grounds, 519 N.W. 2d 166

(Minn. 1994), and the liberties have been interpreted for some purposes more

broad under the state than under the Federal Constitution. State v. Davidson,

; 48] N.W. 2d 51, 56 (Minn. 1992). For the issue at bar, however, the parties

have not identified any ways in which the protections of the federal and state

Constitutions vary.

A28

permitted and are prohibited.

b. Adult uses, either principal or accessory,

shall be prohibited from locating in any

building which is also utilized for residential

purposes.

c Adult uses, either principal or accessory,

shall be prohibited from locating in any place

which is also used to dispense or consume

aicunolic beverages. +

d. An adult use which does not qualify as

an accessory use pursuant to Subdivision 4a. of

this subsection, shall be classified as an adult

use-principal.

Subd. 3. Adult Uses-Principal [sic]:

a. Adult use-principle shall be located at

least 1,000 radial feet, as measured in a straight

line from the closest point of the property line of

the building upon which the adult use-principal is

locate to the property line of:

é Residentially zoned property,

2. A licensed day care center,

3. A public or private educational facility

classified as an elementary, junior high or senior

high,

A public library,

A public park,

Another adult use-principal Isic},

An on-sale liquor establishment, or

Any church or _ church related

organization.

b. Adult use principal activities, as defined by

this Chapter, shall be classified as one use. No

two adult uses-principal shall be located in the

same building or upon the same property and

each use shall be subject to this Section.

SNA MA

A29

follows:

Subd. 4. Adult Uses - Accessory [sic]:

a. Adult use-accessory shall:

1, Comprise no more than 10% of the floor

area of the establishment in which it is located.

2. Comprise no more than 20% of the

gross receipts of the entire business operation.

a Not involve or include any activity

except the sale or rental of merchandise.

Subd. 5. Nonconforming Adult Use - Principal

[sic] or Accessory’...

Chapter 9, Section 9.02 of the City of Ramsey City

Code, amended by City of Ramsey Ordinance 90-23 in 1990, is

the definitions section of the City Code. It provided in part as

Adult Uses: Adult uses include adult

bookstores, adult motion picture theaters, adult

motion picture rentals, adult mini-motion

picture theaters, adult massage parlors, adult

steam room/bathhouse/sauna facilities, adult

companionship establishments, adult

rap/conversation parlors, adult health/sport

clubs, adult cabarets, adult novelty businesses,

adult motion picture arcades, adult modeling

studios, adult hotels/motels, adult body painting

Studios, and other premises, enterprises,

establishments, businesses or places open to

some or all members of the public, at or in

which there is an emphasis on the presentation,

display, depiction or description of "specified

sexual activities" or "specified anatomical areas"

which are capable of being seen by members of

A30

the public.

a. Specified anatomical areas:

Z: ae

b. Specified Sexual Activities:

NAWSWNE

Adult Uses - Accessory [sic]: A use, business, or

establishment having 10% or less of its stock in

grade or floor area allocated to, or 20% or less

of its gross receipts derived from movie rentals

or magazine sales.

Adult Uses - Principal [sic]: A use, business, or

establishment having more than 10% of its stock

in trade or floor area allocated to, or more than

20% of its gross receipts derived from, any

adult use.

Adult Use Body Painting Studio...

Adult Use - Bookstore [sic]. A building or

portion of a building used for the barter, rental

or sale of items consisting of printed matter,

pictures, slides, records, audio tape, videotape,

or motion picture film if such building or

portion of a building is not open to the public

generally but only to one or more classes of the

public excluding [sic] any minor by reason of

age or if a substantial or significant portion of

such items are distinguished or characterized by

an emphasis on the depiction or description of

"specified sexual activities" or "specified

anatomical areas".

Adult Use - Motion Picture Arcade [sic]. Any

place to which the public is permitted or invited

wherein coin or slug-operated or electronically,

electrically or mechanically controlled or

operated still or motion picture machines,

projectors or other image producing devices are

maintained to show image to five or fewer

persons per machine at any one time, and

where the images so displayed are distinguished

or characterized by an emphasis on depicting or

describing "specified sexual activities" or

"specified anatomical areas."

Adult Use - Novelty Business [sic]. A business

which has as a principal activity the sale of

devices which stimulate human genitals or

devices which are designed for sexual

stimulation.

Plaintiff argues that the facts are undisputed and that

Defendants are violating the City’s zoning ordinance.

Defendants argue that they have admitted certain allegations

contained in the City’s complaint, but that "the allegations

expressly not admitted are that Defendants operate an adult

use as defined by the ordinance on the property, and that the

Defendants’ current us is expressly prohibited by the

ordinance." Memorandum of Points and authorities in

Opposition to Plaintiff's Motion for Summary Judgment, at 4-5.

Defendants further argue that

No affidavits of any kind are submitted

describing Defendants’ current use or which

would lead the court to determine that the

current use falls within the purview of the

ordinance. By contrast, defendant in his

A32

affidavit, sets forth the fact that since the time

of the Eighth Circuit decision, substantial

changes have been made to the nature of the

operation, including elimination of the on-

premiss viewing of adults-only material, and a

change in merchandise, to eliminate much of

the sexually explicit material, and to substitute

novelty items, making the store similar in nature

to the "Fantasy House’ [sic} establishment in

Fridley.

Memorandum of Points and Authorities in Opposition to

Plaintiffs Motion for Summary Judgment, at 5. Defendants

subsequently "request that the motion for summary judgment

be denied." Memorandum of Points and Authorities in

Opposition to Plaintiff's Motion for Summary Judgment, at 5.

It is clear from the summary judgment standard as set

out above on page 5 of this memorandum that Plaintiff is not

required to submit affidavits in support of its motion. See

Celotex Corp., 477 U.S. at 323-24, 91 L.Rd. 2d at 274, 106 S.Ct.

at 2553. However, the Court has before it three affidavits

regarding the content of the premises. All three affidavits were

executed after Defendants’ memorandum of law in opposition

to the motion for summary judgment was submitted to the

Court. Two of the affidavits were submitted in support of the

motion for summary judgment and one -was submitted in

opposition to the motion. The first affidavit is from Mr.

Michael Auspos, the Police Chef for the City of Ramsey. He

states in part:

L. I am the Police Chief for the City of

Ramsey, Minnesota. On October 5, 1994, I

entered the adult bookstore located at 6710

Highway 10 in the City. Attached to this

affidavit are pictures of the property as it

existed on October 5, 1994. A sign on the

property depicts the business as an "adult

bookstore."

A33

2. I entered the building through the front door,

which was open. I walked into the display area

of the building. Along the east wall of this area

were magazine racks containing a few comic

books and other types of non-adult magazines.

[Emphasis added]. Other racks contained

sexual artifacts and novelties. On the other

racks towards the west portion of the room

there were numerous pornographic magazines,

which were in a plastic wrap and sealed. Along

the west wall display area were video cassettes

of a pornographic nature.

The second affidavit is from Mr. James Singewald. It provides,

in part:

l.[ am a police officer for the City of Ramsey.

On Wednesday, October 5, 1994 Shortly after

11:00 a.m., I entered the premises at 6710

Highway 10 in the City of Ramsey, along with

Police Chief auspos.

2. As I entered the building, there was a male

sitting behind the counter at the front door. I

walked into the portion of the building

displaying the sexual novelties, adult books and

magazines. In the magazines area, I observed

some sports magazines and comic books in

addition to the magazines containing sexually-

explicit material. The portion of the display area

that contained the non-sexually explicit magazines

was less than 10%

[Emphasis added].

3. be

4. das

> As I was leaving the business, I observed

along the sidewalk adjacent to the building two

discarded and unrolled condoms.

A34

The third affidavit is from Ms. Camille Nelson. It provides:

L. Your affiant is employed as a clerk at

the Amusement Center Bookstore, located at

6710 Highway 10, Ramsey, Minnesota.

2. As such your affiant has had occasion to observe

the new floor layout at the Amusement Center.

3. Under the new layout, the video tape

viewing booths are physically blocked off, and

we are under instructions to admit no one into

the area of the store.

4. In addition, all of the video tape viewing

booths have been disconnected from electric

power so they are totally non-functional.

5. Of the remaining floor space, only 40

percent is devoted to material of a sexually explicit

nature, either books, magazines, video tapes, or

novelties. [Emphasis added].

6. The remaining 66 *% of the floor space in

the store is devoted to items such [sic]

motorcycle magazines, car magazines, hunting

magazines, and Popular Mechanics types of

magazines.

7. Your affiant executes this affidavit in

opposition to Plaintiffs Motion for Summary

Judgment.

Although the affidavits vary in the percentage of the

floor space used to display sexually explicit materials between

90% and 40%, it is undisputed that in excess of 10% of the

floor space is dedicated to adult use materials, either books,

magazines, video tapes, or novelties. As set out above, the

zoning ordinance provides that "“[a] use, business, or

establishment having more than 10% of its stock in trade or

floor area allocated to, or more than 20% of its gross receipts

derived from, any adult use” is an adult use-principal. Section

9.02 City of Ramsey City Code.

A35

The dispute is not over

material” facts, but over the legal consequences of those facts.

As discussed above, when not the facts, but rather the

application of the law to those facts, is disputed, summary

judgment is proper. See Fire & Cas. Ins. Co of Connecticut v.

Illinois Farmers Ins. Co., 352 N.W. 2d at 799, cited supra pages

3-6 of the memorandum.

The application of the clear language of the zoning

ordinance to the facts shows that the Defendants operate an

"adult use-principal.". Because Defendants do not otherwise

dispute that they are in violation of the provisions of the

ordinance, Plaintiff is entitled to its declaratory judgment.

As Plaintiff has set out in its memorandum of law in

support of its motion, violations of zoning ordinances constitute

irreparable injury and are appropriate for injunctive relief. In

the adult use case of City of Minneapolis v. F & R, Inc., 300

N.W. 2d 2 (Minn. 1980), reh. denied (Minn. Jan. |, 1981), the

Supreme Court emphasized that it has recognized that an

injunction is probably the most efficient way for local

governmental unit to deal with continuing zoning violations. F &

R, Inc., at 4, citing City of Mahtomedi v. Spychalla, 308 Minn.

429, 432, 243 N.W. 2d 31, 33 (1976); Itasca County v. Rodenz,

268 N.w. 2d 423, 424 (Minn. 1978); and Brown County v.

Meidinger, 271 Nw. 2d 15, 19 (S.D. 1978). Compared to

injunctive relief, repeated prosecution for a violation of a

zoning ordinance, seeking imposition of a fine or jail term, is an

inadequate method of attaining the goal of zoning ordinance

compliance. The purpose of use restrictions is not punishment

but the attainment of conforming uses. An injunction ordering

compliance with use restrictions is peculiarly suited to this end.

Furthermore, repeated prosecution for each violation is a

"The difference in facts is not material, because a finding either way does

not affect the result or outcome of the case, since either way the percentage

of floor space dedicated to sexually explicit materials excess 10%. See

Anderson v. Liberty Lobby, Inc., 477 U.. at 248. 91 L.Ed. 2d at 2il, 106 S.Ct.

at 2510. See further, cases cited in the summary standard as set out above on

page 2 of this memorandum.

A36

eT ON

misuse of limited administrative and judicial resources. F & R,

Inc., at 4.

It is therefore mecessary to review defendants’

affirmative Gofenses...

Defendants previously unsuccessfully cholenaed the

constitutionality of the zoning ordinance in federal court. See

Schneider v. City of Ramsey, 800 F. supp. 815 (D. Minn. 1992),

aff'd sub nom. Holmberg v. City of Ramsey, 12 F. 3d 140 (8th Cir.

1993), cert. denied, 15 S.Ct. 59, 130 L.ed. 2d 17, 63 U.S.L.W. 3257

(1994). The question is therefore whether defendants should be

allowed to raise the constitutional issue again.

Although not in so many words, Plaintiff has contested

defendants’ ability to challenge the constitutionality of the

zoning ordinance under the principles of res judicata or

collateral estoppel. Defendants assert that the elements of

neither principle are met.

Res judicata and collateral estoppel are two different

but related doctrines. See Gulbranson v. Gulbranson, 408 N.W.

2d 216, 217 (Minn. Ct. App. 1987). Res judicata bars claims,

while collateral estoppel bars issues. Res judicata is applied

when a party does not presented the whole of the claim in the

original suit. Collateral estoppel is applied when the claim in

the second suit is different from that involved in the first, but

involves one or more issues that were actually litigated and

necessarily determined in the original action. Res judicata

prevents further litigation of issues that were not in fact

litigated so long as they were part of the same claim.

Collateral estoppel, on the other hand, deals only with the

effect of the judgment on issues actually litigated and

necessarily determined in the prior suit. 3 Douglas D.

McFarland, William J. Keppel, Minnesota Civil Practice (2nd ed.

1990) Section 2532, at 623.

Res judicata operates as an absolute bar to a

subsequent suit on the same cause of action, concluding the

parties and their privies not only as to every matter that was

litigated, but also as to any other claim or defense which might

A37

have been litigated. R.W. v T.F., 510 N.W. 2d 231, 234-35

(Minn. Ct. App. 1994), rev. granted (Minn. 1994). See also,

Dorso Trailer Sales, Inc. v. American Body and Trailer Inc., 482

N.W. 2d 771, 773-74 (Minn. 1992).

When a prior judgment is offered as a bar fo a later suit

on a different claim, the question is simply whether any issue

has been adjudicated by the judgment that is 2'sc: present in the

second suit. If it has, the judgment is conclusive on that issue

and cannot be contradicted in the second action. The issue

must be identical to the one in the prior suit. If the issue was

not involved in the prior adjudication thereof on the merits, the

judgment can have no effect in the later action. 3 Minnesota

Civil Practice Section 2538, at 648-49. Collateral estoppel is

appropriately applied where (1) the issue at hand is identical to

an issue in the prior adjudication, (2) there was a final

judgment on the merits, (3) the party to be estopped was a

party or in privity with a party to the prior adjudication, and (4)

the estopped party was given a full and fair Opportunity to

litigate the adjudicated issue. Saint Paul Fire and Marine Ins.

Co. v. Central Nat'l, Ins. Co. of Omaha, 480 N.W. 2d 608, 613

(Minn. 1988). See also, 3 Minnesota Civil Practice Section 2538,

at 650-51.

Defendants assert in their joint answer that Plaintiff is

barred by res judicata from bringing this action. They claim

that Plaintiff should have brought the action as a compulsory

counterclaim in federal court. This assertion is incorrect.

zoning ordinance violations are continuing in nature and a

party need not assert a counterclaim based on facts which occur

after the party serves its answer. Cochrane v. Iowa Beef

Processors, Inc., 596 F. 2d 254, 264, fn. 9 (8th Cir. 1979), cert.

denied 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed. 2d 290 (1979). See

also, 6 Federal Practice and Procedure; Civil 2d Section 141 1, at

79-81 (1990). Plaintiff is correct that it may bring an action for

an injunction at any time in such situations and that it is not

barred by res judicata from bringing this action.

In the federal action, Defendants in this action brought

Suit against the city alleging its zoning ordinance violated their

A38

rights under the First and Fourteenth Amendments of the

United States Constitution. Defendant The Amusement

Center, Inc.’s business at that time consisted of the sale of

adults only books and magazines, the sale of sexual novelties,

and coin-operated picture viewing machines for viewing adults

only motion pictures on the premises. Schneider, 800 F. Supp.

at 817-18. Judge Murphy upheld the ordinance. After the

Eighth Circuit Court of appeals affirmed Judge Murphy’s

decision on December 30, 1993, the video booths were closed to

_the public. Defendants now allege that since the business has

changed, the ordinance is overly broad and therefore

unconstitutional. Memorandum of Points and Authorities in

Opposition to Plaintiffs Motion for Summary Judgment, at Il.

The United States Supreme Court has established a

three-part analysis to determine whether a statue or ordinance

regulating adult entertainment business is constitutional. City

of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 925,

89 L.Ed. 29 (1986); Young v. American Mini Theaters, 427 U.S.

50, 96 S.Ct. 2440, 49 L.Ed. 2d 319 (1976). First, a court must

determine whether the statute or ordinance is content-neutral

time, place, and manner restriction. Then, a court must

determine whether the government has an important or

substantial interest in regulating adult entertainment business

which is unrelated to the suppression of free speech. and

finally, a court must determine whether the incidental

restriction on First Amendment freedoms is no greater than

essential to further the government’s interest. Janra Enterprises,

Inc. v. City of Reno, 818 F. Supp. 1361 (D. Nev. 1993), citing

Tollis, Inc. v. San Bernardino County, 827 F. 2d 1329, 1331 (9th

Cir. 1987). See also Renton, 475 U.S. at 47, 106 S.Ct. at 928. See

further, Alexander v. City of Minneapolis, 928 F. 2d 278, 282-284

(8th cir. 1991), reh. denied, 1991 U.S. App. LEXIS 12080 (8th

Cir. 1991) and ILQ Investments v. City of Rochester, 25 F. 3d 1413,

1416 (8th Cir. 1994), cert. denied, IS S.Ct. 578, 130 L.Ed. 2d 493,

63 U.S.L.W. 3420 (1994).

In her findings, Judge Murphy held that "[t]here is no

indication that the stated purpose of the ordinance was a

A39

pretext masking a true purpose to restrain Plaintiffs’ [now

Defendants’] speech on the basis of its content" and "there is no

direct evidence that the City intended to limit the content of

Plaintiffs [now Defendants’] speech, nor is there indirect

evidence from which any such intent may be inferred.”

Schneider, 800 F. Sup. at 821-22. The Eighth Circuit held that

"[bJecause the City’s zoning ordinance limits the location of

sexually oriented businesses rather than banning them

altogether, the ordinance is analyzed as a form of time, place,

and manner regulation of protected speech." Holmberg, 12 F.

3d at 143, citing Renton, 475 U.S. at 46, 106 S.Ct. at 928.

Under the collateral estoppel doctrine, this Court must

accept the first part of the three party analysis as determined

and Defendants cannot challenge it again.

The substantial governmental interest alleged in this

case is the City of Ramsey’s interest in limiting adverse

secondary effects of adult uses. As the Eighth Circuit pointed

out, the City cannot merely give lip service to a legitimate

governmental interest, but has the burden to substantiate its

declaration that zoning regulations are needed to curb

unwanted secondary effects of sexually oriented businesses that

operate in ramsey. Holmberg, 12 F. 3d at 143. The City can

establish its interest either by showing actual adverse secondary

effects or in the alternative can under Renton rely on the

experiences of other cities in enacting its adult zoning

ordinances. Id. The First Amendment does not require a City to

conduct new studies or produce new evidence independent of

that already generated by other cities, so long as whatever

evidence the city relies on is reasonably believed to be relevant

to the problem that the city addresses. Renton, 475 U.S. at 5l-

52, 106 S.Ct. at 931. Judge Murphy found that there is no

indication that the city planner’s study was "anything but a

thorough, professional inquiry into evidence reasonably believed

to be relevant to the problem the city was addressing. The

findings adopted by the City incorporate conclusions from this

study and express a substantial governmental __ interest."

Schneider, 800 F. Supp. at 822. Judge Murphy also addressed

A40

the argument that the lack of post-enactment adverse secondary

effects in the city undermines reasonable reliance on the city

planner’s study. She rejected the argument based on

International Eateries of America, Inc. v. Broward County, 941 F.

2d 1157, 1163 (lith Cir. 1991), cert. denied, 112 S. Ct. 1294, II7

L.Ed. 2d 517 (1992). Schneider, 800 F. Supp. at 822, fn. 4.

The problem faced by this Court is that it cannot

determine from the record as it has developed thus far whether

the studies on which the City relied include adverse secondary

effects of adult bookstores without on-premises consumption.”

However, the uncontested affidavit of Mr. Robert McLaughlin

suggests that:

x All of the adult entertainment studies

relied upon by any municipality have uniformly

been of adults-only theaters; adults-only

bookstores, which have consisted of virtually 100

percent sexually explicit material and featuring

on-premises consumption of said material

through coin-operated "peep shows"; and

alcoholic and non-alcoholic bars featuring live

nude dancing.

McLaughlin Affidavit at 2 (emphasis added).

The question is whether the studies’ evidence from the

other cities is reasonably believed to be relevant to the problem

that the City of Ramsey seeks to address and whether the

ordinance is sufficiently narrowly tailored to affect only that

category of businesses shown to produce the unwanted

secondary effects. See World Wide Video v. City of Tukwila, 816

"In this respect the case at bar may be different from JLQ Investments v.

City of Rochester, 25 F. 3d 1413 (8th Cir. 1994), cert. denied, 15 S.Ct. 578, 130

L.Ed. 2d 493, 63 U.S.L.W. 3420 (1994). There the Eighth Circuit Court of

Appeals held that the studies relied on by Rochester’s Common Counsel

identified and measured adverse secondary effects linked to adult businesses

generally as well as adverse secondary effects specifically attributable to adult

bookstores. JLQ Investments, at 1417-18. In the case at bar, however, this

Court has no evidence whatsoever regarding the content of the studies that

the City of Ramsey relied upon.

A4l

P.2d 18, 21 (Wash. 1991), cert denied ll2 §.Ct. 1672, 118 L.Ed. 2d

391 (1992). See also Schad v. Mount Ephraim, 452 U.S. 61, 68

L.Ed. 671, 101 S.Ct. 2176 (1981) and Erznoznik v. City of

Jacksonville, 422 U.S. 205, 45 L.Ed. 2d 125, 95 §.Ct. 2268 (1975).

This question may have been addressed by the federal court or

if it was not, the federal court might have been able to address

it. However, there is nothing in the record for the Court’s

review that suggests either. Rather, because defendants

challenged the zoning ordinance from the position of an adult

bookstore with on-premises consumption of adults only

materials and because the studies apparently showed that other

cities have experienced adverse secondary effects from adult

bookstores with on-premises consumption of adults only

material, it seems that defendants would have been precluded

from raising the overbreadth of the provisions as a

constitutional challenge to the ordinance, since they clearly fell

within the core of the zoning ordinance provision. See Young,

427 US. at 59-60, 106 S.Ct. at 2447, 49 L.Ed. 2d at 319-320.

Judge Murphy appropriately held so when Defendants

attempted to challenge the adult use accessory provisions of the

ordinance. Schneider, 800 F. Supp. at 822, fn. 3.

Whether the studies relied on by the City of Ramsey

before enacting the zoning ordinance address the adverse

secondary effects of adult bookstores without on-premises

consumption of adults only material and whether the ordinance

is sufficiently narrowly drafted to correspond with the studies’

findings are disputed issues of material fact. These two issues

must therefore be reserved for trial and Plaintiff's motion for

Summary judgment and permanent injunction must be denied.

CONCLUSION

Defendants’ use of the property located at 6710 Highway

10 in the City of Ramsey is a prohibited use under the City’s

zoning ordinance and Plaintiff is entitled to a declaratory

judgment to that effect. further, Defendants first affirmative

defense, that the zoning ordinance is unconstitutional, can only

be rejected in part. the ordinance is a valid time, place, and

manner regulation, but the court cannot determine on the

A42

record as it has developed thus far whether the studies relied

on by the City of Ramsey before enacting the zoning ordinance

address the adverse secondary effects of adult bookstores

without on-premises consumption of adults only material and

whether the ordinance is sufficiently narrowly drafted to

correspond with the studies’ findings. Plaintiff is therefore not

entitled to a permanent injunction at this stage of the

proceedings.

J.A.M.

A43

ORDINANCE NO. 90-23

CITY OF RAMSEY

ANOKA COUNTY, MINNESOTA

AN ORDINANCE AMENDING CHAPTER 9 OF THE CITY

CODE OF THE CITY OF RAMSEY RELATING TO THE

RULES OF CONSTRUCTION AND INTERPRETATION:

THE DEFINITION OF ADULT USES, AMORTIZATION,

NONCONFORMING USE AND NONCONFORMING

STRUCTURE; PROCESSING COSTS; THE PROCEDURAL

REQUIREMENTS FOR CONDITIONAL USE PERMITS

AND VARIANCES; THE PROCEDURAL

REQUIREMENTS AND MEMBERSHIP OF THE BOARD

OF ADJUSTMENT AND APPEALS; PROCESSING COSTS

FOR CONDITIONAL USE PERMITS AND VARIANCES;

THE REGULATION OF NON-CONFORMING

BUILDINGS, STRUCTURES AND USES; PERFORMANCE

STANDARDS FOR ADULT USES; THE REVISION OF

ACTIVITIES WITHIN THE B-1, B-2, RB, I AND RI

ZONING DISTRICTS; PERFORMANCE STANDARDS

FOR NON-RESIDENTIAL USE; THE REPEAL OF

DUPLICATE REFERENCES IN ALL ZONING DISTRICTS;

THE CREATION OF THE B-3 HIGHWAY BUSINESS

DISTRICT AND THE B-W, BUSINESS/WAREHOUSING

DISTRICT, AND THE REZONING OF CERTAIN LANDS

TO BE-W AND B-3 ZONING DISTRICTS.

Ad4

The City of Ramsey ordains:

Section 1. Amendment. That Chapter 9, Section 9.01.06

Rules shall be amended to read as follows:

9.01.06 Rules of construction and interpretation

Subdivision |. Conflicting conditions. Where the

conditions imposed by any provision of this Chapter are either

more or less restrictive than comparable conditions by another

provision of this Chapter or by other Chapters of the City

Code, rule or registration of the city, the provision which

imposes the more restrictive condition, standard, or

requirement shall prevail.

Subd. 2. Language rules of construction. The

language set forth in the text of this chapter shall be

interpreted in accordance with the following rules of

construction:

a. The singular number includes the plural,

and the plural the singular.

b. The present tense includes the past and

future tenses, and the future the present.

c. The word "shall" is mandatory while the

word "may" is permissive.

d. The masculine gender includes the

feminine and neuter.

é. Whenever a word or term defined

hereinafter appears in the text of this chapter,

its meaning shall be construed as set forth in

the Definitions section of this chapter.

f. All measured distances expressed in feet

shall be the nearest tent of a foot.

Section 2. Amendment. That Chapter 9, Section 9.02

Definitions of the City Code shall be amended to add the

following definitions:

Adult Uses; Adult uses include adult bookstores, adult

motion picture theaters, adult motion rental, adult mini-motion

picture theaters, adult massage parlors, adult stream

room/bathhouse/sauna facilities, adult companionship

establishments, adult rap/conversation parlors, adult

A45

ee ee eS ee eee, ee een en 4,

health/sport clubs, adult cabarets, adult novelty businesses,

adult motion picture arcades, adult modeling studios, adult

hotels/motels, adult body painting studios, and other premises,

enterprises, establishments, businesses or places open to some

or all members of the public, at or in which there is an

emphasis on the presentation, display, depiction or description

of "specified sexual activities" or "specified anatomical areas"

which are capable of being seen by members of the public.

a. Specified Anatomical Areas:

1. Less than completely and opaquely

covered human genitals, pubic region, buttock,

anus, or female breast(s) below a point

immediately above the top of the areola; and

2. human male genitals in a discernibly

turgid state, even if completely and opaquely

covered.

b. Specified Sexual activities:

1. Actual or simulated sexual intercourse,

oral copulation, anal intercourse, oral -anal

copulation, bestiality, direct physical stimulation

of unclothed genitals, flagellation or torture in

the context of a sexual relationship, or the use

of excretory functions in the context of a sexual

relationship, and any of the following sexually-

oriented acts or conduct: anilingus, buggery,

coprophagy, coprophilia, cunnilingus, fellatio,

necrophilia, pederasty, pedophilia, piquerism,

sapphism, zooerasty; or

pF Clearly depicted human genitals in the

State of sexual stimulation, arousal or

tumescence; or

3. Use of human or animal ejaculation,

sodomy, oral copulation, coitus, or

masturbation; or

4. fondling or touching of nude human

genitalia, pubic region, buttocks, or female

breast; or

A46

5. Situations involving a person or persons,

any of whom are nude, clad in undergarments

or in sexually revealing costumer, and who are

engaged in activities involving the flagellation,

torture, fettering, binding or other physical

restraint of any such persons; or

6. Erotic or lewd touching, fondling or

other sexually-oriented contact with an animal

by a human being; or

7. Human excretion, urination,

menstruation, vaginal or anal irrigation.

Adult Uses - Accessory: A_ use,

business, or establishment

having 10% or less of its stock in

trade or floor area allocated to,

or 20% or less of its gross

receipts derived from movie

rentals or magazines sales.

Adult Uses - Principal: A use, business

establishment having more than 10% of its stock

in trade or floor area allocated to, or more than

20% of its gross receipts derived from, any

adult use.

Adult Use Body Painting Studio. An

establishment or business which provides the

service of applying paint or other -substance,

whether transparent, to or on the body of a

patron when such body is wholly or partially

nude in terms of "specified anatomical areas”.

Adult Use - Bookstore. A building or portion of a

building used for the barter, rental or sale of

items consisting of printed matter, pictures,

slides, records,audio tape, videotape, or motion

picture film if such building or portion of a

building is not open to the public generally but

only to one or more classes of the public

extending any minor by reason of age or if a

A47

substantial or significant portion of such items

are distinguished or characterized by an

emphasis on the depiction or description of

"specified sexual activities" or "specified

anatomical areas".

Adult Use - Cabaret. A building or

portion of a building used for providing dancing

or other live entertainment is distinguished or

characterized by an. emphasis on the presence,

display, depiction or description of "specified

sexual activities” or "specified anatomical areas".

Adult Use Companionship

Establishment. A companionship establishment

which excludes minors by reason of age, or

which provides the service of engaging in or

listening to conversation, talk or discission

between an employee of the establishment and

a customer, if such service is distinguished or

characterized by an emphasis on "specified

sexual activities" or "specified anatomical areas".

Adult Use Conversation/Rap Parlor. A

conversation/rap parlor which excludes minors

by reason of age, or which provides the service

of engaging in or listening to conversation, talk,

or discussion, if such service is distinguished or

characterized by an emphasis on "specified

sexual activities" or "specified anatomical areas".

Adult Use - Health/Sport Club. A

health/sport club which excludes minors by

reason of age, or if such club is distinguished or

characterized by an emphasis on "specified

sexual activities" or "specified anatomical areas”.

Adult Use - Hotel or Motel. Adult

Hotel or motel means a hotel or motel from

which minors are specifically excluded from

patronage and wherein material is presented

which id distinguished or characterized by an

A48

emphasis on matter depicting, describing or

relating to "specified sexually activities" or

"specified anatomical areas".

Adult Use Massage Parlor, Health Club. A massage

parlor or health club which restricts minors by

reason of age, and which provides the services

of massage, if such service is distinguished or

characterized by an emphasis on "specified

sexual activities" or "specified anatomical areas".

‘Adult Use Mini-Motion Picture Theater.

building or portion of a building with a capacity

for less than 50 persons used for presenting

material if such building or portion of a

building as a prevailing practice excludes minors

by virtue of age, or if such material is

distinguished or characterized by an emphasis

on "specified sexual activities" or "specified

anatomical areas" for observation by patrons

therein.

Adult Use - Modeling Studio. An

establishment whose major business is the

provision to customers, of figure models who

are so provided with the intent of providing

sexual stimulation or sexual gratification to such

customers and who engage in "specified sexual

activities" or display "specified anatomical areas"

while being observed, painted, painted upon,

sketched, drawn, sculptured, photographed, or

otherwise depicted by such customers.

Adult Use - Motion Picture Arcade. Any place

to which the public is permitted or invited

wherein coin or slug-operated or electronically,

electrically or mechanically controlled or

operated still or motor picture machines,

projectors or other image-producing devices are

maintained to show images to five or fewer

persons per machine at any one time, and

A49

ee ee

where the images so displayed are distinguished

or characterized by an emphasis on depicting or

describing ‘specified sexual activities" or

"specified anatomical areas’.

Adult Use - Motion Picture Theater. A

building or portion of a building with a capacity

of 50 or more person used for presenting

material if such building or portion of a

building as a prevailing practice excludes minors

by virtue of age or if such material is

distinguished or characterized by an emphasis

on "specified sexual activities" or "specified

anatomical areas" for observation by patrons

therein.

Adult Use - Novelty Business. A

business which has a principal activity the sale

of device which stimulate human genitals or

devices which are designed for sexual

stimulation.

Adult Use - Sauna. A sauna which

excludes minors by reason of age, or which

provides a steam bath or heat bathing room

used for the purpose of bathing, relaxation, or

reducing, utilizing steam or hot air as a

cleaning, relaxing or reducing agent, if the

Service provided by the sauna is distinguished or

characterized by an emphasis on "specified

Sexual activities" or "specified anatomical areas".

Adult Use steam Room/Bathhouse

Facility. A building or portion of a building

used for providing a steam bath or heat bathing

room used for the purpose of pleasure, bathing,

relaxation, or reducing, utilizing steam or hot

air as a cleaning, relaxing or reducing agent if

such building or portion of a building restricts

minors by reason of age if the service provided

by the steam room/bathhouse facility is

ASO

distinguished or characterized by an emphasis

on "specified sexual activities" or "specified

anatomical areas".

Amortization: The establishment of a

time schedule over which the cost of an

investment is depreciated.

Nonconforming structure: A building or

structure which is a Nonconforming use as

defined in this section.

Nonconforming use: a building,

structure, premises, or use which does not

comply or conform with the apy icable

conditions or provisions of this Chapter.

a. Nonconforming use - Illegal; A

building, structure, premise, or use which at the

time of its establishment did not comply or

conform with the applicable conditions or

provisions of the City Code which were in effect

at such date, and which continues such

noncompliance and nonconformance with the

City Code. ‘

b. Nonconforming use - Legal: A

building, structure, premises, or use which at

the time of its establishment was in compliance

and conformance with the applicable conditions

and provisions of the City Code which were in

effect at such date, but which does not now

comply or conform to conditions and provisions

of the current City Code.

AMENDMENT I.

Freedom of religion, speech and press; peaceful assemblage;

petition of grievances

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government

for a redress of grievances.

AMENDMENT XIV

Section 1. Citizenship rights not be abridged by states

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction an equal protection of the laws.

A52

PAL Seo ee eT

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF ANOKA TENTH JUDICIAL DISTRICT

CASE TYPE: DECLARATORY JUDGMENT

The City of Ramsey,

Plaintiff,

NT R

vs. OF DEFENDANTS

Larry Holmberg and the Amusement

Center, Inc., a Minnesota Court File No.

corporation, C9-94-3310

Defendants.

The above-named Defendants for their joint answer, hereby

alleged the following:

FI DEFENSE

1. Except as hereinafter admitted or qualified,

defendants deny each and every allegation of plaintiffs

complaint.

2. Defendants admit the allegations contained in

paragraphs 1, 2, 3, and 4 of plaintiff's complaint.

3. With respect to paragraph, Defendants admit

that the business has been in operation, since April of 1990, that

adults-only material are sold and displayed therein, that they

are located within one thousand feet of residentially zoned

property, a church, and an on sale liquor establishment.

defendants further admit that they have not sought nor been

granted an extension of the deadline contain in ordinance

number 90-234. Defendants put Plaintiff to its strict proof of,

the remaining allegations of paragraph 5.

4. With respect to paragraph 6 if the cnokaubtm

defendants admit having commenced the action in United

States District Court and that the District court upheld the

validity of the ordinance. Defendants affirmatively allege that

they are seeking review of said decision before the United

States Supreme Court.

AS3

* Defendants specifically deny the allegations

contained in paragraphs 7 and 10 of the complaint.

6. Defendants assert that paragraphs 8 and 9 are

legal conclusions not subject to responsive pleading.

SECOND DEFENSE

7. Defendants allege that there has been an

insufficiency of service of process in this matter.

THIRD DEFENSE

8. Plaintiffs cause of action is barred by res

judicata, by virtue of its failure to assert it as a compulsory

counterclaim in the federal action alleged in paragraph 6 of

Plaintiff's complaint.

FOURTH DEFENSE

9. Ramsey City Ordinance No. 9-23 is

unconstitutional as applied to Defendant’s current

establishment, under the 1 and 14 Amendments to the United

States Constitution, and Article 1, Section 3 o the Minnesota

Constitution.

FIFTH DEFENSE

10. This Court should defer action in the above-

entitled matter pending United States Supreme Court Review

of the ordinance of the federal action.

WHEREFORE, Defendants request the judgment and

decree of this Court as follows:

a. That Plaintiff take nothing by its pretended

cause of action, and that its complaint against defendants be

dismissed with prejudice.

b. That defendants be awarded the reasonable

costs, disbursements, and attorney’s fees herein.

C. That the Court grant such other and further

relief as it may deem just, fair, and equitable.

A54

/s/

Randall D.B. Tigue

Attorney for Defendants

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

(612) 874-9903

Minn. Sup. Ct. Lic. No. 110000

Dated: April 20, 1994.

ACKNOWLEDGMENT

The undersigned hereby acknowledges that costs,

disbursements, and reasonable attorney’s and witness fees

maybe awarded pursuant to Minnesota statutes Section 549.21,

subdivision 2 to the party against whom the allegations in this

pleading are asserted.

Ls/ .

Randall D.B. Tigue :

Attorney for Defendants

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

(612) 874-9903

Minn. Sup. Ct. Lic. No. 110000

Dated: April 20, 1994.

ay ee bites

ASS

UNITED STATE DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

ILQ Investments, Inc., a

Minnesota corporation,

and Excalibur Group, Inc.,

a Minnesota corporation, AFFIDAVIT OF

Plaintiffs, ROBERT BRUCE

MCLAUGHLIN

VS.

City of Rochester, a File No. 3-92 cv 751 (RHK)

municipal corporation,

Defendants

STATE OF FLORIDA )

)ss

COUNTY OF PINELLAS _)

[, Robert Bruce Mclaughlin, of the City of Indian Rocks

Beach, Pinellas, Florida, hereby depose and say the following:

1. I adopt and incorporate by reference as if fully

Set forth herein the statements regarding my professional

background, experience, and expertise contained in my

Affidavit, dated October 15, 1994, submitted in support of

Plaintiffs’ motion for leave to file an amended and

supplemental complaint in the above-entitled matter.

2. For the past several years I have conducted

extensive studies in the area of urban planning, as it relates to

zoning of adult entertainment uses.

3. As such, I have personally read and become

familiar with virtually all of the published literature related to

adverse secondary effects of adult entertainment, and have

personally reviewed mots of the unpublished literature relied

upon by municipal governments as it related to adverse

secondary effects of adult entertainment zoning.

4. based upon your affiant’s extensive professional

experience, your affiant has yet to find a single municipality or

A56

city planner that has ever studied the adverse secondary effects

of general book and video stores, featuring adults-only sections

consisting of a minority of the floor space, and featuring no on-

premises consumption of sexually explicit material.

5. All of the adult entertainment studies relied

upon by any municipality have uniformly been of adults-only

theaters, adults-only bookstores, which have consisted of

virtually 100 percent of sexually explicit material and featuring

on-premises consumption of said material through coin-

operated "peep shows"; and alcoholic and non-alcoholic bars

featuring live nude dancing.

6. the reason that general video stores with adults-

only sections have never been the subject of secondary effect

studies has nothing to do with the newness or novelty of such

entertainment forms; such entertainment forms had been

common throughout the United States for at least IS years and

have been well known to city planners for that entire period of

time.

7. Rather, the reason such entertainment forms

have never been the form of secondary effects studies is the

fact that such entertainment forms have been universally

recognized as materially different in nature from adults-only

bookstores, adults-only motion picture theaters, and live nude

dance entertainment. ss)

8. The chief reason why nobody ha studied the

adverse secondary effect of general release video stores with

adults-only sections is that no responsible city planner has ever

seriously suggested that such entertainment forms cause the

type of adverse secondary effects associated with adults-only

theaters and adults-only bookstores, featuring on-premises

consumption of such materials.

9. Your affiant executes this affidavit in opposition

to defendant’s motion for summary judgment.

Robert Bruce McLaughlin

Sworn to and subscribed before me

this Ist day of November, 1994.

AS7

‘Js

Notary Public

A58

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF ANOKA TENTH JUDICIAL DISTRICT

City of Ramsey,

Plaintiff, AFFIDAVIT OF

VS. CAMILLE NELSON

Larry Holmberg and File No. C9-94-3310

the Amusement Center, Inc.,

Defendant. -

STATE OF MINNESOTA _ )

)ss

COUNTY OF HENNEPIN )

Camille Nelson, being first duly sworn on oath, hereby

deposes and says the following:

1. Your affiant is employed as a clerk at the

Amusement Center Bookstore, located at 6710 Highway 10,

Ramsey, Minnesota.

2. As such, your affiant has had occasion to

observe the new floor layout at the Amusement center.

3 Under the new layout, the video tape viewing

booths are physically blocked off, and we are under instructions

to admit no one into that area of the store.

4, In addition, all of the video tape viewing booths

have been disconnected from electric power so they are totally

non-functional.

5. Of the remaining floor space, only 40 percent is

devoted to material of a sexually explicit nature, either books,

magazines, video tapes, or novelties.

6. The remaining 60 percent of the floor space in

the store is devoted to items such as motorcycle magazines, car

magazines, hunting magazines, and popular Mechanics types of

magazines.

7. Your affiant executes this affidavit in opposition

to Plaintifs Motion for Summary Judgment.

JLs/

Camille Nelson

AS9

SO ee a ee

Sworn to and subscribed before me this

7th day of October, 1994.

Is/

Notary Public

A60

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF ANOKA TENTH JUDICIAL CIRCUIT

Case Type: Declaratory judgment

City of Ramsey,

Plaintiff,

v. Court File No. C9-94-3310

Larry Holmberg, and AFFIDAVIT OF

The Amusement Center, Inc, ROBERT BRUCE

A Minnesota Corporation, McLAUGHLIN

Defendants.

AFFIDAVIT OF ROBERT BRUCE McLAUGHLIN

I, ROBERT BRUCE McLAUGHLIN, of the City of

Indian Rocks Beach, Pinellas County, Florida, MAKE OATH

AND SAY AS FOLLOWS:

i I am in practice as a land use planning

Consultant and local government Consultant in the States of

Florida and Minnesota, and elsewhere in the United States.

2. I have a Masters of Science degree in Political

Science with a thesis on American Constitutional Law.

3. I am a member of the American Institute of

Certified Planners.

4. My credentials as a land use planner have been

accepted by local governments on may occasions in the past.

5. I have been qualified as an expert witness before

the United States District Court for the Middle District of

Florida, Jacksonville, Ocala and Tampa Divisions, the United

States Bankruptcy Court for the Middle District of Florida,

Tampa Divisions, the United States Bankruptcy Court for the

Middle District of Florida, Tampa Division, the Hillsborough

County Court, the circuit Courts for various counties in the

State of Florida, the Superior Court of the State of

Washington, in and for the County of King, and the Hearing

Examiner for Shohomish County, Washington.

6. I am and have previously been retained as a

professional land use planner in Ramsey, Rochester, Hopkins,

A6él

St. Cloud and Minneapolis, Minnesota, various cities and

counties in the State of Florida and in the States of Georgia,

Michigan, Missouri, New York, Ohio, South caroline, and

Washington, and elsewhere, by various local governments

and/or other private entities who have interests in land in the

respective jurisdictions.

7. I was appointed by the Board of County

commissioners of Hillsborough county, Florida, as a Zoning

Hearing Master, to make recommendations with respect to

applications for amendments to the Hillsborough County

zoning code, applications for conditional uses, and

Developments of regional Impact, and to reach conclusions of

Law and to make Findings of fact and Findings of consistency

or Inconsistency with the Comprehensive Plan with respect to

these applications. See Laws of Florida, 1983, C. 83-416.

8. I have been engaged extensively in work

involving the review of government actions, and the

documentation thereof, including procedures followed for

enactment, notices given, referrals made, the substance of the

enactment, and the like.

9. In particular, I have previously been retained to

research Zoning and other Ordinances governing adult Uses;

to conduct an independent analysis, and to testify about those

Ordinance s with respect to:

a) the nature of those Ordinances;

b) the methods employed in their enactment;

c) whether or not the ordinances have a reasonable

planning predicate; or

d) whether the Ordinances are arbitrary and

capricious either on their face, or as applied to

particular properties; and

e) whether the Ordinances provide adequate

alternative avenues of communication for Adult

Uses.

10. I have also frequently been retained to make

public records requests of local governments, and to follow-up

those requests as necessary.

A62

ll. I have been retained on behalf of Defendants

hereunto offer professional land use planning services with

respect to land use controls on Adult Uses in the City of

Ramsey, Minnesota.

12. I have been retained by operators of other Adult

Uses in Alachua, Brevard, Broward, citrus, Hillsborough, Leon,

Pasco, Pinellas, Sarasota and St. Johns’ Counties, Florida, and

in Georgia, Michigan, Minnesota, Missouri, New York, Ohio,

south Caroline and Washington to offer professional planning

services related to Zoning Regulations affecting Adult Uses.

13. I have personally done or supervised the work

described in this Affidavit.

14. Accordingly, as set forth herein, I have personal

knowledge of the matters hereinafter set forth, and am

competent to make this Affidavit, and to offer the opinions

herein expressed, and would be competent to testify regarding

these expert opinions if called to testify at trial.

1S. My resume is attached as Exhibit A to this my

Affidavit.

16. In this matter, I have been asked to:

a) review the predicates, if any, for the City’s

Adult Use Regulations, particularly as they

apply to adult bookstores with no "on-premises

consumption" of adult matcrial; and

b} determine if there i any basis for the

application for the regulations to such

establishments, in particular the establishment

occupied by Defendant herein, or whether the

application of the regulations is factually

arbitrary and capricious.

17. In the course of preparing this Affidavit, I have

reviewed the following documents:

a) City of Ramsey Adult Uses, Planning Report, 20

September, 1990, prepared by Northwest Associated

Consultants, Inc. (without Exhibits);

b) Adult Entertainment, supplement to the 1987

Zoning Study, Division of Planning, department of

—_o ee ee eee _ a ree in

A63

Planning and Economic development, City of St. Paul,

1988;

c) Revised Director's Report Adult Entertainment,

City of Seattle, Seattle, Wa., August, 1989;

d) Report of the Attorney General’s Working Group

on the Regulation of Sexually Oriented Businesses, St.

Paul, Minn. June 6, 1989;

e) Adult Entertainment Land Use and Legal

Perspectives, Rochester/Olmsted consolidated

Planning Department and Office of the

Rochester City Attorney; Rochester, Minn.,

March 1988;

f) Affidavit of James J. Thomson, made March a

1995;

g) Plaintiffs Memorandum of Law in this case,

dated March 3, 1995;

h) A study which I completed in early 1995, on the

impacts of an adult book and video store without on-

premises consumption of adult material, in the City of

Rochester, Minnesota;

i) Material prepared by the City of Daytona

Beach, Florida, on various Adult Uses:

}) Studies prepared elsewhere by me or by others;

and

k) Material cites in the above documents.

18. In my study of the adult bookstore in Rochester,

Minnesota, a bookstore with no “on-premises consumption" I

conclusively determined that there were no "adverse secondary

effects" related to said businesses.

19. In my study, I considered property values and

calls for police service at the subject site and at several control

uses, which included conventional book and video stores.

20.___—_ The adult bookstore had no negative impact on

property values in its vicinity.

21. There was no inordinate demand for police

services at the bookstore and there was no increased demand

for police services in the area of the bookstore, which demand

A64

was caused by the bookstore. (The Rochester adult bookstore

is adjacent to City Hall, which has a major demand for police

services. )

22. Further, there was no evidence of urban blight

resulting from the presence of the Rochester adult bookstore.

23. In Daytona Beach, the City’s study of various

Adult Uses, specifically found that adult book and video stores,

without on-premises consumption, had no adverse secondary

effects, even though the City’s "agenda" included an effort to

close the adult bookstore that did not have on-premises

consumption. A copy of the Daytona Beach Study is attached

as Exhibit B to this my affidavit.

24. I am familiar with most of the source material

listed on pp 2-3 of the Ramsey Report. I am not aware of any

reference, let alone any discussion, in any of that material to

adult book or video stores without on-premises consumption.

25. The Ramsey Study, without Exhibits, includes no

analysis of "adverse secondary effects" and merely assets that

studies elsewhere purport to find such effects.

26. There is no discussion, of which I am aware, in

any of the source material to the Ramsey Study of adult book

or video stores without on premises consumption.

27. There is no discussion in any of the St. Paul

studies of adult book or video stores without on-premises

consumption of adult material.

28. Further, the various St.. Paul studies are

academically, professionally, and scientifically unsound, and do

not establish the existence of "adverse secondary effects" related

to adult entertainment establishments, other than those related

to bars and other alcoholic beverage establishments, without

nude dance.

29. There is no discussion in the Seattle Study, of

adult book or video stores without on-premises consumption of

adult material.

30. Further, the Seattle Study is academically,

professionally, and scientifically unsound, and does not establish

the existence of "adverse secondary effects" related to Adult

Se en 2. ee ee —

A65

Uses.

31. There is no discussion in the Minnesota Attorney

General's Report of adult book or video stores without on-

premises consumption of adult material.

32. Further the Minnesota Attorney General’s Report

is academically, professionally, and scientifically unsound, and

does not establish the existence of "adverse secondary effects"

related to Adult Uses.

33. There is no discussion in the Rochester Study, or

in any of the sources therein, of adult book or video stores

without on-premises consumption of adult material.

34, Further, the Rochester Study relies almost

entirely on secondary sources which are academically

professionally, and scientifically unsound, and which do not

establish the existence of "adverse secondary effects" related to

Adult Uses.

35. I have extensive experience in reviewing the

Operation of various Adult Uses, including adult book and

video stores.

36. Except for conventional book or video stores

with a ‘segment or section" devoted to adult material, a class or

facility universally ignored in the application of Adult Use

Regulations, adult book store s have, until recent years, almost,

but not quite, universally had on-premises consumption. (The

daytona Beach store being almost unique.)

37. Based on my extensive research on adult

entertainment establishments, and my careful review of the

extensive body of Adult Use "studies", I have been unable to

establish any governmental interest that is advanced by the

regulation of adult book or video stores without on-premises

consumption.

38. Even if Ramsey relied on the same studies as

The City of Rochester, those Studies do not establish a

governmental interest in the regulation of adult book or video

stores without on-premises consumption of adult material.

39. Accordingly, from a factual standpoint, I can

find no justification in the material which I have reviewed, for

A66

the City of Ramsey’s reliance on the studies considered by the

City of Ramsey in regulating adult book or video stores without

on-premises consumption of adult material.

40. Adult book or video stores, without on-premises

consumption are not reasonably similar to adult book or video

stores without on-premises consumption, but are, in fact,

substantially different.

41. The only studies of which i am aware which

even mention adult book or video stores without on-premises

consumption, are my study in rochester, and the study by the

City of Daytona Beach, both of which found no adverse

secondary effects resulting from adult book or video stores

without on-premises consumption of adult material.

42. From a factual standpoint, there is no evidence

in the material which I have reviewed, which evidence is

relevant to the application of the City’s Adult Use Zoning

Regulations to adult book and video stores without on-premises

consumption of adult material.

FURTHER YOUR AFFIANT SAYETH NAUGHT

/s/ R. Bruce McLaughlin

STATE OF NEW YORK

COUNTY OF NEW YORK

The foregoing instrument was

acknowledged before me this

13th day of April, 1995

by ROBERT BRUCE MCLAUGHLIN

who is personally known to me or

who has produced a DRIVER’S LIC.

as identification and who did take an

oath.

Seal

/s/ ALICE HARRINGTON

Notary Public

My Commission Expires:

A67

R.BRUCE McLAUGHLIN, B.A., M.Sc. (PI),

PROJECT MANAGEMENT/LAND PLANNING

LAND DEVELOPMENT/LOCAL GOVERNMENT

CONSULTANT

EDUCATION:

Master of Science, (Planning)

University of Toronto

Department of Urban & Regional Planning

1974 (Thesis - Intergovernmental Relations

in the Planning Process)

Bachelor of Arts (Honors) York University

Political Science 1972

(Thesis - American Constitutional Law)

High School Graduate

Upper Canada College 1968

MEMBERSHIPS:

American Institute of certified Planners (1979)

Canadian Institute of Planners (1976)

CAREER HISTORY:

1983 - Present:

Principal, McLaughlin Consulting Services, Inc.

Operates and own business with a variety of private and public

sector projects. Projects include Land Use, Market and

Financial Feasibility Studies, Position Statements, Planning

Reviews, Transportation Analyses, Policy and Regulatory

Documents, Applications and Approvals and Urban design.

Also provides paralegal services for licensed attorneys involved

in land use or local government work.

‘And associated firms.

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1985 - 1989;

Zoning Hearing Master, Hillsborough County, Florida.

Served first as Alternate, and then full-time Zoning Hearing

Master for Hillsborough County, reviewing staff reports,

development proposals and evidence with respect to rezoning

applications, conditional use applications and alcoholic

beverage requests. Presided over hearings, establishing rules of

procedure, admissibility of evidence, points of law and related

matters.

Made recommendations to Board of County Commissioners,

with respect to planning merits, legal ramifications, findings of

fact, conclusions of law, and Comprehensive Plan consistency.

1974-1983

Responsible for 17 projects with a fee value of $450,000.00,

Managing budgets, timetables, client contacts and staff.

Directed planning, research and _ fulfillment of land

development and local government projects. Responsible for

presentations to clients and the public. Presented expert

evidence before administrative tribunals. Planning advisor to

several mid-sized urban municipalities.

In Tampa, Project Manager for all planning projects and

engineering projects. Business development effort to the firm,

including direct contacts and responding to requests for

proposals. Corporation Administration, including contractual

obligations, personnel, client liaison and general administrative

procedures. Professional planning including design, document

preparation and permitting.

Summers of 1971, 1972 and 1973:

Totten, Sims, Hubicki, Associates, Ltd., Willowdale, Ontario.

Responsibilities included general research, collection and

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analysis of various data and the preparation of reports for the

use of clients and management.

Other Positions:

Summer student - Internal Audit and Accounting

Departments, Fiberglas Canada, Ltd.

Official - Toronto Football Officials Association.

Referee - Various school and community hockey leagues.

"Boy Friday" - Political campaigns, Toronto, Ontario area.

Accepted as an Expert Witness:

United States District Court, Middle District of Florida,

Tampa, Fort Myers, Ocala and Jacksonville Divisions:

United States Bankruptcy Court, Middle District of Florida,

Tampa Division;

Circuit Courts: Pinellas, Hillsborough, Sarasota, Alachua,

Broward ad Leon Counties, Florida;

Superior Court, County of King, Washington

County Court, Hillsborough County

Hearing Examiner, Snohomish County, Washington

Various Code Enforcement Boards;

Pinellas County Property Appraisal Adjustment Board:

Ontario Municipal Board.

SUMMARY OF EXPERIENCE:

An experienced, analytical land planner local government

consultant and market analyst, highly skilled in land use, market

feasibility and transportation studies, rezoning and urban

des

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