Alexander v. City of Minneapolis
| Decision Date | 19 February 1982 |
| Docket Number | Civ. No. 4-81-337. |
| Citation | 531 F. Supp. 1162 |
| Parties | Ferris J. ALEXANDER and Benedict Jochim, Plaintiffs, and Vegas Cinema Corporation of Minneapolis, Inc., dba Avalon Theatre, Plaintiff-Intervenor, v. CITY OF MINNEAPOLIS, a municipal corporation; William A. Nordrum, Jr., individually and as Zoning Supervisor for the City of Minneapolis; and Anthony Bouza, individually and as Chief of Police of the City of Minneapolis, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Randall D. B. Tigue and Benjamin Houge, Minneapolis, Minn., for plaintiffs.
John H. Weston, Robert A. DePiano, Brown, Weston & Sarno, Beverly Hills, Cal., on behalf of plaintiff-intervenor.
Allen B. Hyatt, Asst. City Atty., Minneapolis, Minn., for defendants.
Plaintiffs Ferris J. Alexander and Benedict Jochim brought this action under 42 U.S.C. § 1983 for declaratory and injunctive relief against defendants City of Minneapolis, William A. Nordrum, Jr., and Anthony Bouza, alleging violations of their First and Fourteenth Amendment rights. Subsequently, plaintiff Vegas Cinema Corporation of Minneapolis, Inc., dba Avalon Theatre (Avalon), intervened pursuant to Fed.R.Civ.P. 24. The case arises from the implementation of Minneapolis Code of Ordinances § 540.410, a zoning ordinance which would prevent the plaintiffs, owners or operators of various "adult" bookstores and motion picture theaters, from continuing most of these operations in the same manner or location. Jurisdiction is alleged under 28 U.S.C. § 1343.
Plaintiffs assert that their activities are entitled to constitutional protection under the First and Fourteenth Amendments. They contend that Minneapolis Code of Ordinances § 540.4101 is unconstitutional on its face and as applied because it is an unlawful prior restraint of free speech and press, denies the plaintiffs equal protection of the law, is unconstitutionally overbroad and vague, and is an establishment of religion, all in violation of the First and Fourteenth Amendments.
Defendants contend that § 540.410 neither denies equal protection nor constitutes an establishment of religion. They claim the ordinance is drafted narrowly and precisely and is not unconstitutionally vague or overbroad. Finally, they assert that the ordinance only has an incidental impact on the exercise of free speech and press that is justified by the exercise of the city's zoning powers and is permitted under Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).
Shortly after this action was commenced, a hearing was held on plaintiffs' request for a temporary restraining order, and an order was issued temporarily preventing defendants from enforcing the challenged ordinance against the plaintiffs. The parties agreed to consolidate the hearing on plaintiffs' request for preliminary injunction with trial on the merits.
Prior to trial, defendants requested, and were granted, two continuances so that their expert could adequately prepare to testify to relocation sites available for the plaintiffs' businesses under the challenged ordinance. During this time, neither party objecting, the Minnesota Civil Liberties Union was granted leave to file a brief as amicus curiae. The parties also stipulated to the intervention of plaintiff Avalon and the entry of a temporary restraining order protecting Avalon from enforcement of the ordinance until a final decision by the court on the merits.
During the week-long trial, 13 witnesses testified, and 47 exhibits were received into evidence, including a videotape of proposed relocation sites and several maps of the City of Minneapolis depicting the effect of § 540.410 and other zoning ordinances. Upon conclusion of the trial the parties requested, and the court granted, leave to submit post-trial memoranda. The parties also agreed to the extension of the temporary restraining order applying to plaintiffs Alexander and Jochim until a final decision by the court on the merits.
The court having considered all testimony and exhibits presented at trial, having observed the demeanor of the witnesses and weighed their credibility, and having reviewed the arguments and memoranda of counsel for the parties and amicus curiae, now enters this Memorandum Opinion and Order for Judgment as its findings of fact and conclusions of law as required under Rule 52 of the Federal Rules of Civil Procedure.
Plaintiff Ferris J. Alexander (Alexander) has an ownership interest in six adult bookstores in Minneapolis. They are located at 401 East Hennepin Avenue, 624 Hennepin Avenue, 429 Hennepin Avenue, 327 East Lake Street, 735 East Lake Street, and 2968 Lyndale Avenue South. He also has an interest in four adult motion picture theaters in Minneapolis: a two-screen theater located at 735 East Lake Street, known as the Rialto, a three-screen theater at 1021 Franklin Avenue East called the Franklin, and the American and Empress theaters with a total of six screens, located at 614-16 Hennepin Avenue. Plaintiff Benedict Jochim (Jochim) is the manager of these theaters. Plaintiff Vegas Cinema Corporation (Avalon) owns the Avalon theater, located at 1500 East Lake Street, which also features adult films.
Defendant William A. Nordrum, Jr. (Nordrum) is the zoning administrator for defendant City of Minneapolis. Defendant Anthony Bouza is the police chief for the City of Minneapolis.
Section 540.410 was enacted in May of 1977 after public hearings2 before the Minneapolis City Council and the City Planning Commission and the preparation of a planning commission staff report on the experience of various other cities, including Detroit, in the zoning regulation of adult businesses.
The purpose of the ordinance is stated at § 540.410(a):
It is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances thereby having a deleterious effect upon the use and enjoyment of adjacent areas. Special regulation of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood .... The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area.
The quoted purpose clause is identical to that found in the Detroit ordinance upheld in Young v. American Mini Theatres, 427 U.S. 50, 54, n. 6, 96 S.Ct. 2440, 2444, n. 6, 49 L.Ed.2d 310 (1976).
The ordinance identifies the following uses with such serious objectionable operational characteristics: adults-only bookstores, adults-only motion picture theaters, massage parlors, rap parlors, and saunas (hereinafter "adult uses" when referred to collectively).
An adults-only bookstore is:
an establishment having forty (40) percent or more of its dollar volume in trade, in books, magazines and other periodicals which are distinguished or characterized by their principal emphasis on matters depicting, describing or relating to nudity, sexual conduct, sexual excitement or sadomasochistic abuse, ... for sale to patrons therein.
Similarly, an adults-only motion picture theater is defined as:
An enclosed building used for presenting, in forty (40) percent or more of its programs, materials distinguished or characterized by and emphasis on matters depicting, describing or relating to nudity, sexual conduct, sexual excitement or sadomasochistic abuse, ... for observation by patrons therein.
The ordinance provides for two primary restrictions of the regulated adult uses. First, no adult use may be operated within 500 feet of any of the following: a residentially zoned or office-residence zoned district, a church, a licensed day care facility, elementary or high schools, and public educational facilities serving persons 17 or younger. § 540.410(c). Second, no adult use may operate within 500 feet of another adult use. § 540.410(d). If more than one adult use is within 500 feet of another, in an otherwise permissible location, "the use of longest continuous operation" is permitted to remain. § 540.410(g).3
The 1977 ordinance allows for "amortization" of any adult use in existence at the time. These uses could lawfully continue until July 1, 1981. § 540.410(f). The city council could extend the compliance date upon the recommendation of the zoning administrator on a showing that discontinuance of the adult use would result in a taking of property. Id. Nordrum testified that he would recommend an extension only if satisfied that the applicant's investment in the use had not been recouped and that a different type of business could not be operated at that location.
The challenged ordinance does not operate in isolation. Other ordinances play a role in how § 540.410 affects the plaintiffs. The adult bookstores and theaters operated by the plaintiff are also subject to zoning restrictions applicable to all bookstores and theaters. Motion picture theaters of any type may only operate in areas zoned B3C, B3S, B4C, or B4S. Bookstores may locate in the areas zoned for theaters plus the additional districts zoned B2, B2S, B3, B4, B4-1, or B4-2.
Nordrum testified that in applying § 540.410, he classifies uses mentioned in the ordinance by reference to the "primary" use of the facility rather than a use which he judges to be "accessory."4 (The ordinance itself does not contain the words primary, principal or accessory use.) Nevertheless, he has classified at least two locations as "state licensed day care facilities" although the actual day care operations are a small part of the building's use (the Galaxy office building at 330 South Second Avenue and a senior citizen high-rise apartment building ...
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