Posted by: Patricia Salkin | January 25, 2012

Fed. Dist. Court in Minnesota Denies City’s Summary Judgment Motion on Adult Use Ordinance Based on Secondary Effects Study

Flirts Inc. owns an adult establishment in the City of Harris called the Heartbreaker.  Over time, the City has received complaints concerning Heartbreaker which included complaints to the mayor regarding drunk patrons, trash, pornographic literature left in yards, condoms left in the street and fights.  The City subsequently enacted an ordinance regulating nude and semi-nude dancing and Flirts Inc. sued claiming that the ordinance violates the First and Fourteenth Amendments because the ordinance was unconstitutionally overbroad and that the evidence the City used to support its enactment was inadequate.  

The ordinance required a license to operate an adult establishment. Among other things, the license application form is required to list the hours of operation, which are limited by the Ordinance to Monday through Saturday, 10:00 a.m. to 12 midnight, a fee of  $7,500.00 per year for an adult establishment (which was allegedly based on the estimated costs of responding to calls at Heartbreaker’s, including $3,000 for police calls, $4,000 for garbage cleanup, $450 for background checks, $200 of administrative costs, and $270 for first responder calls).

The Ordinance also provided that:

(1) No owner, operator, or manager of an adult entertainment center shall permit or allow any dancer or other live entertainer to perform nude.

(2) No dancer, live entertainer, patron or any other person may be nude in an adult entertainment center.

(3) No dancer, live entertainer or performer shall be under 18 years old.

(4) All dancing or live entertainment shall occur on a platform intended for that purpose and which is raised at least two feet from the level of the floor.

(5) No dancer or performer shall fondle, touch, or caress any patron and no patron shall fondle, touch, or caress any dancer or performer.

 (6) No patron shall pay or give any gratuity directly to any dancer or performer.

(7) No dancer or performer shall solicit any pay or gratuity from anypatron. 

For an adult use ordinance to be valid it must be content neutral and designed to serve a substantial government interest.   The Court found that the City’s ordinance focused on reducing the negative secondary effects of Heartbreakers, which includes trying to counter the “increased crime rates, lower property values, increased transiency, neighborhood blight, and potential health risks,”  and that therefore the goals of the regulation were content-neutral. 

However, with respect to secondary effects, the District Court agreed that the evidence used by the City to support its finding was inadequate. The City used studies from other communities with adult establishments as evidence to support secondary problems that occur because of the existence of these uses. The Court noted that because Heartbreakers has been an adult establishment in the City for seventeen years, the City should have used studies from its own City as evidence of the negative secondary effects of the adult establishment at issues rather than relying on other communities.  The Court, in denying the City’s summary judgment motion, noted it was not passing on the overall validity of the Plaintiff’s case.  Whether the licensing fees were appropriate also remains an open question. 

Flirts Inc. v. The City of Harris, Minnesota , 796 F. Supp. 2d 974 (4/21/ 2011). 

The opinion can be accessed at:

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