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Finance and C ommerce A ppeuate C ourts Edition October . 1997
<br />GO URT OF APPEALS
<br />CIVIL OPINIONS
<br />rn#mm
<br />City of Crystal,
<br />Appellant,
<br />vs.
<br />Fantasy House, Inc.,
<br />d'b/a Fantasy Gifts; et al..
<br />Respondents.
<br />Filed September 30,1997
<br />Reversed
<br />HuspenI, Judge
<br />Hennepin County District Court
<br />File No. 9518970
<br />James J.Thomson, Daniel J.QreensweIg, Kennedy & Graven, Cha.<tered.
<br />470 Pillsbury Center, Minneapolis, MN 55402; George C. Hoff, Hoff, Barry
<br />& Kuderer, RA., 7901 Flying Cloud Dr., Suite 260, Eden Prairie, MN 55344
<br />(for appellant)
<br />David Grort^ck, Law Offices of David Gronbeck, 701 Fourth Ave. S.,
<br />Suite 1700, Minneapolis, MN 55415 (for respondents)
<br />Caria J.Heyf, 145 University Ave.W., St. Paul, MN 55103-2044 (for ami
<br />cus curiae League of Minnesota Cities)
<br />Randall 0. B.Tigue, 2620 Nicoilet Ave., Minneapolis, MN 55408 (for ami
<br />cus curiae Minnesota Civil Liberties Union)
<br />Considered and decided by Huspeni, Presiding Judge, Kalitowski,
<br />Judge, and Thorecn, Judge.'
<br />Retired judge of the district court serving as fudge oi the Minnesota Court ol Appelas
<br />by appolnimeni pursuant to Minn. Const, art VI, § 10.
<br />SYLLABUS
<br />1. An interim ordinance may place a moratorium on the location of
<br />adult establishment businesses until such time as their secondary effects
<br />can be adequately studied pursuant to Minn. Stat. $ 462.3SS, subd. 4
<br />(1996).
<br />2. A municipality may reasonably rely on studies of the secondary
<br />effects of adult establishment businesses to restrict such businesses, even
<br />if the studies focus on businesses that provide on-site consumption of
<br />sexually explicit material and some of the businesses being restricted do
<br />not provide on-site consumption.
<br />3. An ordinance that restricts the location of adult establishment busi
<br />nesses to 15% of the municipality's industrial and commercial zones pro
<br />vides sufficient reasonable alternative avenues of communication for
<br />adult establishment businesses.
<br />Reversed.
<br />OPINION
<br />HUSPENI, Judge (Hon. Franklin J. Knoll, District Court Judge)
<br />Respondent Fan.asy House, Inc. opened, an adult novelty business in
<br />appellant City of Crystal in violation of Crystal's interim ordinance that
<br />bans adult establishments. Crystal brought a motion for declaratory judg
<br />ment claiming that Fantasy House violated the ordinance and seeking to'
<br />enjoin Fantasy House from operating its business in Crystal. Fantasy
<br />House, in turn, alleged that both Ordinance No. 9S-II (interim ordinance)
<br />and the latcr-aJoptcd Ordinance No. 96-2 (permanent ordinance) were
<br />unconstitutional restrictions of free speech.
<br />After a trial, the court found that the interim ordinance banned adult
<br />establishments and that the permanent ordinance provided less than one
<br />percent of Crystal's land for their location. As a result, the court held that
<br />the interim and permanent ordinances failed to provide reasonable alter
<br />native avenues of communication and were not narrowly tailored to a
<br />substantial government interest Also, the court held that it was not rea
<br />sonable for Crystal to rely on studies of adult establishments providing
<br />on-site consumption of sexually explicit material because Fantasy House
<br />does not provide on-site consumption.
<br />Because we conclude that (1) municipalities may rely on studies of the
<br />negative secondary effects of adult establishments to draft a restrictive
<br />ordinance if the municipalities reasonably believe that the businesses
<br />studied are similar to those targeted by the ordinance and (2) the two ordi
<br />nances in question provided reasonable alternative avenues of communi
<br />cation, we reverse.
<br />FACTS
<br />In June 1995, unaware that any adult establishment was planning to
<br />open, appellant City of Crystal adopted Ordinance No. 95-11 (interim
<br />ordinance), which prohibited any adult establishment from locating with
<br />in 1,000 feet of residential areas, daycare centers, libraries, parks, reli
<br />gious institutions, playgrounds, or other public recreational areas.
<br />Because no area within Crystal was not within 1,000 feet of such places,
<br />adult establishments were effectively banned from the city.
<br />On December 1, 1995, respondent opened Fantasy House Gifts selling
<br />t-shirts, greeting cards, lingerie, a limited number of adult videos and
<br />books, and various sexual novelty items. The store was located in
<br />Crystal's B-4 district and was within 1,000 feet of a park and of a residen
<br />tial area. Crystal moved for a declaratory judgment that Fantasy House
<br />violated the interim ordinance and for an injunction prohibiting Fantasy
<br />House from operating its business in Crystal.
<br />On January 16. 1996, Crystal adopted Ordinance No. 96-2 (permanent
<br />ordina.".ce), replacing the interim ordinance. The permanent ordinance
<br />restricts any business devoting 25% or more of its floor area to merchan
<br />dise depicting specified sexual activities or specified anatomical areas to
<br />industrial areas not within 250 feet of any residential boundary, church,
<br />school, daycare, park, or specified business and not within 500 feet of any
<br />other adult use. In February 1996, the city supplemented its original
<br />declaratory judgment complaint to include a claim that Fantasy House
<br />was in violation of the permanent ordinance.
<br />A bench trial was held on Crystal's request for a declaratory judgment
<br />and Fantasy House's challenge to the constitutionality of both the interim
<br />and permanent ordinances. Testimony at trial showed that the permanent
<br />ordinance permitted the location of adult establishments on 34 acres of
<br />land in Crystal.'
<br />'It should be noted that, although Iha trial court focused its analysis on the tact that the
<br />available land was .9% ol the 3,768 total acres in Crystal, this available land also rep-
<br />resents 15% of Ciystart 233 acres ol Industrial and commercial zones. ‘________
<br />The trial court found that Fantasy House was entitled to First Amendment
<br />protection and that the ordinances were an unconstitutional restriction of
<br />free speech because they were not narrowly tailored and did not provide
<br />reasonable alternative avenues of communication.
<br />ISSUE
<br />Are the interim and permanent ordinances unconstitutional restrictions
<br />of free speech?
<br />ANALYSIS
<br />A municipal ordinance is presumed constitutional. The burden of prov
<br />ing that an ordinance is unreasonable or that the requisite public i.nterest is
<br />not involved, and consequently that the ordinance does not come within
<br />the police power of the city, rests on the party attacking its vahd::y. City of
<br />SL Paul V. Oalsin, 245 Minn. 325.329,71 N.W.2d 855.858 (1955)
<br />Before addressing the constitutionality of the challenged ordinances, w e
<br />Court of Appeals
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