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062998 CC Ws AgPCITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD CITY COUNCIL WORK SESSION COUNCIL CHAMBERS MONDAY, JUNE 29, 1998 7:00 P.M. AGENDA 1. CONVENE WORK SESSION A. Roll Call B . Review Agenda 2. DISCUSSION REGARDING POLICY SURVEY 3. REVIEW PROPOSED ADULT USE REGULATIONS 4. DISCUSSION ON TELECOMMUNICATIONS CONSULTANT 5. ADJOURN No official action is taken at Work Sessions CITY OF .a: a• .e`F' 4 MEMORANDUM SHOREWOOD 5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331 -8927 • (612) 474 -3236 FAX (612) 474 -0128 • www.state.net/shorewood • cityhall @shorewood.state.net TO: FROM: DATE: RE: FILE NO.: Planning Commission, Mayor and City Council r z i? ti Brad Nielsen 15 April 1998 Adult Use — Draft Ordinance 405 (Zon. Ord. Part I) Enclosed please find the following background materials regarding the regulation of adult uses in Shorewood: • Attachment I — Planner's Memorandum, dated 14 March 1997 • Attachment II — Attorney's Memorandum, dated 13 March 1997 • Attachment III — Appeals Court Decision Re: Crystal v. Fantasy House, dated 18 November, 1997 The City Attorney's office has advised us that we can not simply prohibit adult uses from locating within the community, nor can we adopt restrictions that effectively prohibit their location. This becomes a problem given the very limited amount of commercial land in Shorewood and the relatively small size of the areas zoned C -3, General Commercial. The maps contained in Attachment IV illustrate the effects of a 200 -foot separation requirement from churches, schools, day care facilities and residential uses. Also shown is a 250 -foot separation. These are extremely minimal separation requirements compared to what cities with larger commercial areas have adopted. Attachment V is a draft ordinance that establishes licensing procedures and standards for adult use establishments. We have incorporated the 200 -foot separation requirement in Section 309.03 (pg. 5). Also note that a 10 -foot separation requirement is proposed between adult use establishments and liquor establishments. This is intended to prevent >j �� PRINTED ON RECYCLED PAPER Memorandum Re: Draft Adult Use Ordinance 15 May 1998 bars from building glass walls between a bar area and a stage to get around the separation requirements. Imposing a greater setback, such as that for churches, schools, etc. for liquor establishments would effectively eliminate all sites from consideration. Once the Planning Commission has reviewed the proposed ordinance, a follow -up ordinance will be drafted incorporating adult uses into the Zoning Code. The earliest a public hearing could be scheduled is 16 June (normally a study session) or 7 July, a regular meeting. In order to avoid problems with the open meeting law, the City Attorney's office advises that any field trips intended to facilitate this study be conducted by individuals rather than as a group. Cc: Jim Hurm John Dean Dan Greensweig is -2- MAYOR Tom Dahlberg COUNCIL Kristi Stover Jennifer McCarty Jerry O'Neill CITY OF John Garfunkel SHOREWOOD 5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331 -8927 • (612) 474 -3236 FAX (612) 474 -0128 • www.state.net/shorewood • cityhall @shorewood.state.net I • ' • 1f► I TO: Planning Commission, Mayor and City Council • FROM: Brad Nielsen DATE: 14 March 1997 RE: Regulation of Adult Uses FILE NO.: 405 (Zoning Ord. Part I) XXX The regulation of adult uses (e.g. adult book and video stores, theaters, massage parlors, saunas, etc.) has been a topic of considerable concern for a number of metropolitan area communities over • the past couple of years. The subject hit closer to home recently when Excelsior found itself with an establishment of this nature in the middle of its downtown business district. You may have read of even more dramatic cases involving the cities of Ramsey and Hopkins. The City Council has expressed an interest in addressing this issue before it becomes a problem in Shorewood. Currently our codes do not distinguish between family video or book stores and those intended primarily for adult use. We would have little to say if an adult video store wanted to occupy space in one of our commercial districts. Recognizing this the Council has directed staff to begin work with the Planning Commission to adopt regulations to control such activities. Shorewood is fortunate in two ways: 1) we are not faced with an immediate problem; and 2) much of the work has been done by other communities or agencies. The Planning Department and City Attorney have begun discussions on the topic of adult use regulation. The recommended approach is through the adoption of zoning and licensing regulations. It is extremely important to realize that the activities we may seek to regulate are heavily protected by the first amendment. It is not possible to prohibit them entirely!. Attachment I A Residential Community on Lake Minnetonka's South Shore Memorandum Re: Adult Use Regulation 14 March 1997 Page two We will begin discussing adult use regulation at the Planning Commission Study Session on Tuesday night. The following background material has been attached for your review: Exhibit A An Outline of Process for Adoption of Ordinance Regulating Adult Establishments Exhibit B An Excerpt from the Report of the Attorney General's Working Group on the Regulation of Sexuallv Oriented Businesses. 6 June 1989 Exhibit C Conclusions Reached by Other Cities Studying the Adverse Secondary Effects of Sexually Oriented Businesses • Exhibit D Memo from City Attorney Re: Adult Establishment Ordinance It should be noted that an interim ordinance, establishing a six -month moratorium on adult uses, has been prepared and will be presented to the City Council at its 24 March meeting. This promises to be a topic about which some of us will learn more than we care to know! cc: Jim Hurm John Dean Mistress Aisha .7 CITY OF SHOREWOOD OUTLINE OF PROCESS FOR ADOPTION OF ORDINANCE REGULATING ADULT ESTABLISHMENTS I. Compile reports and studies addressing the secondary effects of adult establishments. II. Adopt interim ordinance temporarily regulating adult establishments. a. Interim ordinance is authorized by Minn. Stat. Sec. 462.355, Subd. 4. b. After interim ordinance is adopted, city's planning consultant should begin studying the various options for the city in regulating adult establishments. C. Consultant should check with other cities that have adopted permanent ordinances, . including those that have been tested in court such as Ramsey's, Hopkins', and Crystal's. III. Schedule an informational meeting with planning commission. a. General parameters should be explained to planning commission as to what authority the city has in regulating adult establishments. b. Planning commission should give direction to the staff on specific issues, such as the specific types of adult businesses desired to be regulated and general direction as to where the opportunity area should be for such businesses. IV. Planning commission holds a public hearing on the proposed ordinance. • a. At the hearing it should be emphasized that the city's ability to regulate adult p ty ty gu establishments is based on the potential for adverse secondary effects caused by such businesses (i.e., potential for increased crime, potential for decreased property values, and potential for such businesses to have a blighting influence). b. Based on information received at public hearing, the planning commission should formulate the final draft of the ordinance to present to city council. V. City council considers ordinance. Exhibit A DJG119163 An Outline of Process for Adoption of Ordinance SH230 -2 Regulating Adult Establishments officers should be used to support the need for zoning ordinances which address these problems. RECOMMENDATIONS 1. Communities should document findings of adverse secondary effects of sexually oriented businesses prior to enacting zoning regulations to control these uses so that such regulations can be upheld if challenged in court. 2. To reduce the adverse effects of sexually oriented businesses, communities should adopt zoning regulations to set distance requirenents between sexually oriented businesses -and sensitive uses, Including but not limited to residential areas, schools, child care facilities, churches and parks. 3. To reduce adverse impacts from concentration of sexually oriented businesses, communities should adopt zoning ordinances which set distance requirements between liquor establishments and sexually oriented businesses and between sexually oriented businesses and should consider restrict! "U sexually oriented businesses to one use per building. �l i 4. Communities should require existing businesses to comply with new zoning or other regulation pertaining to sexually oriented businesses within a reasonable time so that prior uses will conform to new laws. IV. LICENSING AND OTHER REGULATIONS Licensing and other regulations may also be used to reduce the adverse effects of sexually oriented businesses. The critical requirements which communities must keep -4 1 - Exhibit B An Excerpt from the Report of the Attorney General's Working Group on the Regulation of Sexuallv Oriented Businesses. 6 June 1989 in mind are that regulations must be narrowly crafted to address adverse secondary effects, they must be reasonably related to reduction of these effects and they must be capable of objective application. If these standards can be met, licensing and other regulatory provisions may play an important role in preventing unwanted exposure to sexually oriented materials and in reducing the crime problems associated with sexually oriented businesses. It is clear that failure to act upon a license application for a sexually oriented business cannot take the place of regulation. Without jus denial or fail ure to grant a license is a prior restraint in violation of the First Amendment. Parkway Theater Corporation v. City of Minneapo No. 716787, slip. op. (Henn. Co. Dist. Ct., Sept. 24, 1975). • An ordinance providing for license revocation of an adult motion picture theater if the licensee is convicted of an obscenity offense is also likely to be held unconstitutional as a prior restraint of free speech. Alexander v. City of St. Paul, 227 N.W.2d 370 (Minn. 1975). The Alexander court stated: [W]hen the city licenses a motion picture theater, it is licensing an activity protected by the First Amendmgnt,�and as a result the power of the city is more limited than when the city incenses activities which do not have First Amendment protection, such the business of selling liquor or running a massage parlor. Id . at 373 (footnote omit ed); see also Cohen v. City of Dalevi 695 F. Supp. 1168, 1171 (M.D. Ala. 1988) (past sale of obscene material cannot justify revocation of license). However, the courts have permitted communities to deny licenses to sexually oriented businesses if the person seeking a license has been convicted of other crimes which are closely related to the operation of sexually oriented businesses. In Dumas v. City of Dallas, supra the court reviewed a requirement that a license applicant not have been convicted of certain crimes within a specified period. Five of the enumerated crimes were held to be not sufficiently related to the purpose of the -42- adult entertainment licensing ordinance because the city had made no findings on their justification. The invalid enumerated offenses were controlled substances act violations, bribery, robbery, kidnapping and organized criminal activity. The court upheld requirements that the licensee not have been convirr ed of prostitution and sex - related offenses. id. at 1074. if a community seeks to require that persons with a history of other crimes be denied licenses, clear findings must first be made which justify denial of licenses on that basis. The Dumas court also invalidated portions of the licensing ordinance permi wing the police chief to deny a license if he finds that the applicant "is unable to operate or manage a sexually oriented business premises in a peaceful and law - abiding manner" or is not presently fit to operate a sexually oriented business." Neither provision satisfied the constitutional requirement that "any license requirement for an activity related to expression must contain narrow, objective, and definite standards to guide the licensing authority." Id . at 1072. See also Alexander 1i , supra slip op. at 16 (unconstitutionally vague to define regulated bookstores as those selling "substantial or significant portion" of certain publications); 11126 Baltimore Boulevard, supra 684 F. Supp. at 898 - 99 striking ordinance allowing zoning officials to deny permit d adult entertainment esta�lishment is not "in harmony" with zoning plan, does not "substantially impair" master plan, doe s" not "adversely affect" health, safety and welfare and is not "c- trimental" to neighborhood because such standards are subject to possible manipulation and arbitr'ry application "). A number of courts have upheld ocd requiring that vie- booths in adult theaters be open to discourage illegal and unsanitary sexual activit y t. See e.o. Doe v. City of Minneaoolis 693 F. Supp. 774 (D. Minn. 1968). Licensing provisions and ordinances forbidding massage parlors employees from administering massages to persons of the opposite sex have withstood equal protection and privacy and associational right challenges. See Clampitt v. City of Ft. Wayne 682 F. Supp. 401, 407 -408 (N.D. Ind. 1988) (equal protection); Wieainess. Inc. v. Fruchtman 482 F. Supp. 681, 689 -90 (S.D. N.Y. 1979), a`f'd 628 F.2d 1346 (2d Cir. 1980), cent. denied 449 U.S. 842, 101 S.Ct. 122. However, some courts have found same -sex massage regulations to be in violation of Title VII of the Civil Rights Act of ^ 3- rr ' 1 1964. See Stratton v. Drumm, 445 F. Supp. 1305 1310 (D. Conn. 1978); Cianciolo v Members of City Council 376 F. Supp. 719, 722 - 24 (E.D. Tenn. 1974); Josech v. House 353 F. Supp. 367, 374 -75 (E.D. Va.), a ff'd sub nom. Joszoh v. Blair 482 D.2d 575 (4th Cir.), cent. denied, 416 U.S. 955, 94 S. Ct. 1268 (1974). Contra Aldred v. Dulino 538 F.2d 637 (4th Cir. 1976). Although the Working Croup expressed strong concern about the operation of prostitution under the guise of massage parlors, this type of regulation is not advisable because legitimate therapeutic massage establishments could find their operations curtailed. Prostitution may be better controlled through prosecution and use of post - conviction actions such as forfeiture or enjoining a public nuisance. In 1985, a court upheld an ordinance making it unlawful to display for commercial purposes material "harmful to minors" unless the material is in a sealed wrapper and, if the cover is harmful to minors, has an opaque cover. Uooer Midwest Booksellers Assn v. City of Minneap 780 F.2d 1389 (8th Cir. 1985). Last year, the legislature enacted a state law similarly prohibiting display of sexually explicit material which is harmful to minors unless items are kept in sealed wrappers and, where the cover itself would be harmful to minors, within opaque covers. Minn. Stat. 5 617.293 (1988). This law has the potential to protect minors from° exposure to sexually oriented materials. Communities also have considerab! discretion to regulate sionage so that the exterior Vs of sexually oriented businesses does rbt expose unwitting observers to sexually explicit messages. ' j RECOM MENDATIONS �.... _ Prior to enacting licensing regulations, communities should document findings of adverse secondary effects of sexually oriented businesses and the relationship between these effects and proposed regulations so that such regulations can be upheld if challenged in court- -44- 1 2. Communities should adopt regulations which reduce the likelihood of criminal activity related to sexually oriented businesses, including but not limited to open booth ordinances and ordinances which authorize denial or revocation of licenses when the licensee has committed offenses relevant to the operation of the business. 3. Communities should adopt regulations which reduce exposure of the community and minors to the blighting appearance of sexually oriented businesses including but not limited to regulations of signage and exterior design of such businesses and should enforce state law requiring sealed wrappers and opaque _covers on sexually oriented material. CONCLUSION There are many actions which communities may take within the law to protect themselves from the adverse secondary effects of sexually oriented businesses. Prosecution of obscenity crimes can play a vital role in decreasing the profitability of sexually oriented businesses and removing materials which violate community standards from local outlets. Forfeiture and injunction to prevent public nuisance should be available where sexually oriented businesses are the site of sex- related crimes and violations of laws pertaining to gambling, liquor or controlled substances. These actions will remove the most egregious establishments from communities. Zoning can reduce the likelihood that sexually oriented businesses will lead to neighborhood blight. Licensing can sever the link between at least some crime figures and sexually oriented businesses. Regulation and enforcement can protect minors from exposure to sexually explicit materials. The Attorney General's Working Group on the Regulation of Sexually Oriented Businesses believes that prosecution, seizure of profits, zoning and regulation of sexually oriented businesses should only be done in keeping with the constitutional -45- requirements of the First Amendment. Rational regulation can be fashioned to protect both our communities and our constitutional rights. • • 16- • CONCLUSIONS REACHED BY OTHER CITIES STUDYING TBE ADVERSE SECONDARY EFFECTS OF SEXUALLY ORIENTED BUSINESSES Exhibit C Conclusions Reached by Other Cities Studying the Adverse Secondary Effects of Sexually Oriented Businesses CONCLUSIONS OF T 1984 • • INDIANAPOLIS STUDY: 1. MAJOR CRIMES, SUCH AS CRIMINAL HOMICIDE, RAPE, ROBBERY, ASSAULT, BURGLARY, AND LARCENY, OCCURRED AT A RATE THAT WAS 23% HIGHER IN THOSE AREAS WHICH HAD SEXUALLY ORIENTED BUSINESSES. 2. THE SEX- RELATED CRIME RATE, INCLUDING RAPE, INDECENT EXPOSURE, AND CHILD MOLESTATION, WAS FOUND TO BE 77% HIGHER IN THOSE AREAS WITH SEXUALLY ORIENTED BUSINESSES. CONCLUSIONS OF THE 1978 ST. PAUL STUDY: • 1. THERE IS A STATISTICALLY SIGNIFICANT • BUSINESSES AND NEIGHBORHOOD DETERIORATION. 2, CORRELATION BETWEEN THE LOCATION OF ADULT ADULT ENTERTAINMENT ESTABLISHMENTS TEND TO LOCATE IN SOMEWHAT DETERIORATED AREAS. G 3`7Hd OLE 9 • CONCLUSIONS OF T 1980 N USTNEAPOLIS STUDY: 1. THE EFFECTS OF SEXUALLY ORIENTED BUSINESSES ON THE CR: qE RATE INDEX IS POSITIVE AND SIGNIFICANT REGARDLESS OF WHICH CONTROL VARIABLE IS USED. 2. SEXUALLY ORIENTED BUSINESSES CONTINUE TO BE ASSOCIATED WITH HIGHER CRIME RATES, EVEN WHEN THE CONTROL V LES' IMPACTS ARE CONSIDERED SIMULTANEOUSLY. 6 30vd 0L £BG££3 L 9'QI N311tYa= 'S aaNN3M:W0253 90 LE- £: -MVW CONCLUSIONS OF THE 1985 HOUSTON STUDY: • • 1. SEXUALLY ORIENTED BUSINESSES HAVE A SUBSTANTIAL NEGATIVE IlAPACT ON THEIR SURROUNDING NEIGHBORHOODS, INCLUDING BUT NOT NECESSARILY LIlVIITED TO ADVERSE EFFECTS ON AREA SECURITY, PROPERTY VALUES AND POTENTIAL FOR ECONONIIC DEVELOPMENT, AS WELL AS GENERAL QUALITY OF LIFE, INCLUDING AMONG OTHER THINGS SUCH ISSUES AS � SUITABILITY FOR FANIILY ACTIVITIES AND STABILITY', OF THE NEIGHBORHOOD ENVIRONMENT. 2. � SEXUALLY ORIENTED BUSINESSES ARE LIKELY CONTRIBUTORY FACTORS TO CP;INIINAL ACTIVITIES THAT ARE ENCOURAGED AS ANCILLARY TO THESE ENTERPRISES, WHETHER DIRECTLY WITHIN THE CONFIYES OF THE 0 t 33tfd MAR -13 -S7 12 =07 FROM =KENNEDY & GRAVEN ID =6123379310 PAGE 11 C7 *JLNAIV- J1 � x uo lz:lsjLx sN91NHsxrlayss:l MEMORANDUM TO: Members of the Planning Commission FROM: Dan Greensweig, Assistant City Attorney DATE: March 11, 1997 RE: Adult Establishment Ordinance In adopting an interim ordinance (moratorium), the city may use a special provision of state law which allows it to skip the usual notice and public input provisions applicable to zoning- amendments. The idea is that interim ordinances are to deal with emergencies or situations in which the usual process is too lengthy or subject to manipulation. The justification in this instance is that we do not want such uses to slip in while we are taking the time to carefully consider how to regulate them. Adult uses inevitably involve First Amendment issues. The courts take such matters very seriously and impose a high standard on any regulation of free speech. The justification for any regulation of adult uses is the demonstrated fact that such uses are not like other retail uses but have adverse effects on surrounding areas. Thus, we need to review and adopt the studies which have been done by other cities which show a link between the two. Generally, when dealing with free speech, the less regulation the better. Nevertheless, a complete • ban on adult uses may be enforceable for a limited period of time and is a prudent measure to have in place while considering a permanent ordinance regulating these uses. It is advisable, however, to make the duration of the moratorium no longer than necessary to conduct the necessary studies and implement the permanent ordinance. In considering a permanent ordinance, a number of legal considerations bear mentioning. First, adult use ordinances typically involve licensing, public health, and zoning. While only the zoning portions must go to the planning commission for review, it is best to have the planning commission review the entire ordinance to provide context for the review. Second, it is imperative to remember that the city may regulate but not prohibit adult establishments. Courts have uniformly found significant First Amendment rights surrounding such uses and will not allow cities to prohibit them directly or indirectly. Cities are allowed to regulate these uses, including their location, because of the documented secondary effects the uses tend to have on their neighborhoods. This means that a city is able to avail itself of a substantial body of empirical evidence which has found that adult uses tend to cause lower property values, blight and other specific physical and economic consequences on surrounding areas. It is because Of these secondary effects that cities may enact reasonable regulations. 0JG119i4 SF230 -2 Exhibit D Memo from Cif Attorney Re: Adult Establishment Ordinance Third, the courts have set forth locational requirements that, while not concrete, are relatively coherent. For example, adult uses can be subject to set backs from residential properties, daycare centers, schools, and the like. Determining the precise locational restrictions, however, depends on a balancing of a city's specific policies against the restrictions on regulation found in the First Amendment. The precise types of locational restrictions are an appropriate topic for discussion by the commission with its planners and attorneys. Fourth, any licensing scheme contained in the permanent ordinance must not grant unbridled discretion to the city or its officials and must set forth reasonable time limits in which the city will take action. It must also provide for prompt judicial review of a city decision to deny or revoke a license. In addition, the licensing fee imposed on adult establishments must be related to the cost of issuing the license. Finally, it should be noted that the city has significantly greater flexibility to regulate adult uses at locations that sell alcohol than at places that do not, because of the greater authority municipalities have in the area of liquor regulation. For example, nude dancing can be restricted at bars in ways that it cannot be restricted in other places. • DJG119141 SH230 -2 MEMORANDUM TO: Brad Nielsen, Planning Director FROM: John Dean, City Attorney DATE: March 13, 1997 RE: Supplemental Definitions Adult Establishment Moratorium Ordinance You requested that our office define the following terms used in the ordinance which establishes a moratorium on adult establishments: "Anilingus ": Sexual stimulation by licking or kissing the anus; a type of oral- genital sexual activity. "Buggery": Sodomy; a carnal copulation involving a man or woman with a beast or a man with a man; oral or anal copulation between a man and woman. "Coprophagy ": The ingestion of dung, or feces. "Coprophilia ": A morbid attraction to, and interest in (with sexual element), fecal matter. "Cunnilingus ": Oral stimulation of the vulva or clitoris; a type of oral- genital sexual activity. "Fellatio": Oral stimulation of the penis; a type of oral - genital sexual activity. "Necrophilia ": The impulse to have sexual contact, or the act of such contact, with a dead body, usually of males with femal corpses. "Pederasty ": Homosexual anal intercourse, especially when practiced on boys. "Pedophilia ": An abnormal attraction to children by an adult for sexual purposes. "Piquerism ": A sexual fetish in which the person stabs his victims in the buttocks or breasts. "Sapphism ": Lesbianism. "Zooerasty ": Bestiality; sexual relations with an animal. The above definitions were obtained from the following sources: Stedum's Medical Dictionary (25th Ed.) Attachment II Z 3�dd 0ICB4CCLI9 °QI N3AVU0 8 AaaNNax,woa. 224 Minn. 569 NORTH WESTERN .REPORTER, DRIES visitation rights), and because only visitation is at issue here, we conclude that only Texas' retention of jurisdiction over visitation is crit- ical in this case. Because a visitation modi- fication is a "determination" under both the PKPA and the Texas Family Code, and be- cause the PKPA says nothing to limit the effect of the Texas law that asserts cobtinu- ing jurisdiction over only visitation disputes, we conclude that nothing in the PKPA aug' gents that Texas law is entitled to less regard because it does not claim the breadth of jurisdiction that it could. 181 'Although two courts have dealt with the impact of Texas law on a visitation dis- pute commenced in another state and nei- ther discusses the effects of Texas' surren- der of jurisdiction over a child placement issue, both recognize that the PKPA' de- mands deference for continuing jurisdiction of the Texas courts over visitation disputes. Heattfield 749 F.2d 1138, 1141 -42 (although finding injunction premature on prospective Louisiana visitation dispute, holding that Texas court has exclusive jurisdiction over visitation issue); Tenenbaum v. Sprecher, 133 A.D.2d 371, 519 N.Y.S.2d 273 (N.Y.App. Div.1987) (citing Ilearlfteld and holding that 4. Other than the use of the disjunctive "or," the PKPA offers little instruction on this issue. Spe- cifically, the court of another state may not modi- fy a "determination of the custody" of a child if the original court has jurisdiction to modify "such determination." 28 U.S.C.A. § 173BA(f). Jurisdiction over a "custody determination"- con- tinues where the original court "has jurisdic- tion." 28 U.S.C.A. § 1738A(c)(1), (d). S. Both opinions contain language supporting a home state's exercise of jurisdiction to deal with an immediate emergency. Ileartfield, 749 F.2d at 1143; Tenenbaum, 519 N.Y.S.2d at 274 -75. See State its Interest of D.S.K., 792 P.2d 118, 127 (Utah App.1990) ( "Where a grave emergency ex- ists affecting the immediate needs and welfare of under PKPA, New York court must deferm jurisdiction of Texas courts on motaop modify visitation).' 4.. Continuing jurisdiction under the IIU CJA , 5 [91 Were we dealing only with the Mitii sots Uniform Child. Custody Jurisdiction a different question . would be presente But because the PKPA precludes a Minne to court from exercising its jurisdictfon contrary conclusion under UCCJA would n6i : give us cause to affirm the trial court. Whe ° the federal PKPA precludes exercise of UC CJA jurisdiction, we must give preemptivq effect to the federal enactment. Sams 4o Boston, 181 W.Va. 706, 384 S.E.2d 151, 156 (1989) (preemption recognized under the'su premacy clause of the United States Consti4 tution); see Thompson v. Thompson, 484; U.S. 174, 183, 108 S.Ct. 613, 518, 98 L.Ed2d 612 (1988) (discussing purpose of PKPA is "to have the same operative effect as the full. faith and credit statute'). 1( ;1 5. Conflicting trial court orders [101 Appellant contends the trial court's jurisdictional order conflicts with the law of abuse to the child that justifies a claim of juris= diction premised on the emergency provision of Minn.Stal. § 518A.03, subd.I (c). In re Marriage of Schtnidt, 436 N.W.2d 99, 104 (Minn.1989) 6. Under Minnesota's version of the Unif &in 'Child Custody Jurisdiction Act, Minnesota courts -must defer to continuing jurisdiction of Texas courts over a visitation -rights dispute only if the Texas law that determines this jurisdiction is "substantially in accordance ", with the uniform law adopted in Minnesota. Minn.Stat. § 518A.14, subd. 1. A UCCJA analysis requires determining if deference can be , given to the Texas district court in light of the provision of Texas law that continues jurisdiction over a visi- tation dispute in any case where one parent continues to reside in that state. Tex. Fam.Code § 155.003(c). Under the Minnesota UCCJA, such continued jurisdiction is allowed only if one parent and the child continued to "have a signifi- cant connection" in the state and there remained in the state "substantial evidence concerning the child's present or future care, protection, train - `ing, and personal relationships." Minn.Stat. § 518A.03(b). Appellant has .not made a show- ing that the child continues to have a significant connection to Texas or that there is considerable evidence available in Texas on the present or future care of the child. 'f t << �ITY OF, CRYSTAL v. FANTASY IIOUSE, INC. Minn. 225 the child, a Utah court may enter appropriate r determined by another judge on orders for the protection of the child present in elf, even if its orders contravene those of a �+ sister sister stale that still retains jurisdiction over CUB- A tody.'; citing other authorities and observing an r of respondent that was filed on De- r 1 6, 1996, and modified on January 2 that this jurisdiction is temporary, pending ac- t Y� bn December 20, 1996, appellant filed tion by the state with continuing jurisdiction); In m ,t; r: cotton to vacate the ex pane order grant - re Interest of L.W. 241 Neb. 84, 486 N,W.2d 486, l! respondent when her motion was filed 498 (1992) (following D.S.KJ. Respondent December 6. The motion to vacate came claims that the current visitation schedule endan- but does k%, spotter judge and resulted in the gers the child, she not claim a grave or cry order that determined, because the �}?,•. court had continuing jurisdic- immediate emergency. And her claim of danger as p ver. the visitation issue, that the trial have in the case. does not rise to the level of abuse or threat of H FANTASY HOUSE, INC., d/b /a Fantasy H Gifts, et al., Respondents. under PKPA, New York court must deferm jurisdiction of Texas courts on motaop modify visitation).' 4.. Continuing jurisdiction under the IIU CJA , 5 [91 Were we dealing only with the Mitii sots Uniform Child. Custody Jurisdiction a different question . would be presente But because the PKPA precludes a Minne to court from exercising its jurisdictfon contrary conclusion under UCCJA would n6i : give us cause to affirm the trial court. Whe ° the federal PKPA precludes exercise of UC CJA jurisdiction, we must give preemptivq effect to the federal enactment. Sams 4o Boston, 181 W.Va. 706, 384 S.E.2d 151, 156 (1989) (preemption recognized under the'su premacy clause of the United States Consti4 tution); see Thompson v. Thompson, 484; U.S. 174, 183, 108 S.Ct. 613, 518, 98 L.Ed2d 612 (1988) (discussing purpose of PKPA is "to have the same operative effect as the full. faith and credit statute'). 1( ;1 5. Conflicting trial court orders [101 Appellant contends the trial court's jurisdictional order conflicts with the law of abuse to the child that justifies a claim of juris= diction premised on the emergency provision of Minn.Stal. § 518A.03, subd.I (c). In re Marriage of Schtnidt, 436 N.W.2d 99, 104 (Minn.1989) 6. Under Minnesota's version of the Unif &in 'Child Custody Jurisdiction Act, Minnesota courts -must defer to continuing jurisdiction of Texas courts over a visitation -rights dispute only if the Texas law that determines this jurisdiction is "substantially in accordance ", with the uniform law adopted in Minnesota. Minn.Stat. § 518A.14, subd. 1. A UCCJA analysis requires determining if deference can be , given to the Texas district court in light of the provision of Texas law that continues jurisdiction over a visi- tation dispute in any case where one parent continues to reside in that state. Tex. Fam.Code § 155.003(c). Under the Minnesota UCCJA, such continued jurisdiction is allowed only if one parent and the child continued to "have a signifi- cant connection" in the state and there remained in the state "substantial evidence concerning the child's present or future care, protection, train - `ing, and personal relationships." Minn.Stat. § 518A.03(b). Appellant has .not made a show- ing that the child continues to have a significant connection to Texas or that there is considerable evidence available in Texas on the present or future care of the child. 'f t << �ITY OF, CRYSTAL v. FANTASY IIOUSE, INC. Minn. 225 f� Cute a 569 N.W.2d 225 (M,nn.App. 1997) r determined by another judge on I concur in the opinion only insofar as it t. 23, 1997, three weeks before the concludes Parental Kidnapping Prevention at �1,hat • Is the subject of this, appeal The Act requires reversal. $court, acted in February on an initial an r of respondent that was filed on De- r 1 6, 1996, and modified on January 2 w rna p SU,,t. - Kra t Y� bn December 20, 1996, appellant filed m ,t; r: cotton to vacate the ex pane order grant - l! respondent when her motion was filed December 6. The motion to vacate came k%, spotter judge and resulted in the cry order that determined, because the �}?,•. court had continuing jurisdic- CITY OF CRYSTAL, Appellant, as p ver. the visitation issue, that the trial have in the case. V. trt did nob jurisdiction line urging of respondent, the trial court FANTASY HOUSE, INC., d/b /a Fantasy February 13 elected to vacate the January Gifts, et al., Respondents. lepof a judicial colleague. No. C3- 97 -96. these circumstances do not involve law of j,.-case. i See Loo v. Loo, 520 N.W.2d 740, Court of Appeals of Minnesota. j, ,n. 1 (Minn.1994) (law of the case ordi- Sept. 30, 1997. rily applies where an appellate court has led on a legal issue and remanded the case Review Denied Nov. 18, 1997. •further proceedings). � 1 �1] �We'recognize, as appellant contends, 1. at a judge, even with adequate authority to City brought declaratory judgment. visit an issue decided by another judge, "as against operator of adult novelty business, rule" 'should be "loathe to do so in the seeking to enjoin operation of business. The isence of extraordinary circumstances." District Court, Hennepin County, Franklin J. iristiansori v. Colt Indus. Operating Corp., Knoll, J., found that interim and permanent 4!b.S. 800, 817, 108 S.Ct. 2166, 2178, 100 ordinances on adult establishments were un- Ed.2d 811 (1988); see also Loo, 520 constitutional restriction on free speech: ,W.2d at 744 (generally an adjudication on City appealed. The Court of Appeals, Itus- .e merits of an issue is conclusive and peni, J., held that: (1) interim ordinance may "' ld,not be relitigated). And we appreci- (qu P lace moratorium on location of adult estab- `the potential for harm • to the judicial lishment businesses until such time as their � ' .. Istem, in the choices of counsel to promote secondary effects can lie adequately studied, i( kw competition as a means to obtain and (2) interim and permanent ordinances ;lief. Nevertheless, because the law com- did not violate right to free speech. gls us to reverse the trial court on the Reversed. lerits, we decline to reach a final judgment !} iffi, court's authority to vacate an earlier FAr"in the circumstances of this case. Dig `).• . - 1 1. Municipal Corporations x122.1(2) )ii) DECISION Municipal ordinance is presumed consti- W trial court could not exercise jurisdic- tutional. in this dispute because the Parental n 2 . •Municipal Corporations e---122.1(2) apping Prevention Act requires defer- e to the continuing jurisdiction of the Burden of proving that ordinance is un- as district court. reasonable or that requisite public interest is reversed. not involved, and consequently that ordi- 11,., , nance does not come within police power of HORT, Judge (concurring specially). city, rests on party attacking its validity. 226 Minn. 569 NORTH WESTERN REPORTER, 2d AS 3. Zoning and Planning 4&-70 Moratorium may be enacted for limited duration if appropriate studies are condiieted and zoning ordinances are expeditiously adopted. M.S.A. § 462.355, subd. 4. 4. Municipal Corporations 0 --106(2.1) Adoption of permanent ordinance ap- proximately seven months after enactment of interim ordinance was expeditious as matter of law. M.S.A. § 462.355, subd. 4. 5. Zoning and Planning c+�22 City may not enact interim ordinance in arbitrary manner to limit certain project. M.S.A. § 462.355, subd. 4. 6. Municipal Corporations X76 Interim ordinance banning adult estab- lishments from locating within 1000 feet of enumerated areas was not impermissibly en- acted to limit adult novelty business; ordi- nance was enacted at least three months before city became aware that objector was planning to open business in city. Crystal, MN, Ordinance 95-11. 7. Municipal Corporations X76 Interim ordinance may place moratori- um on location of adult establishment busi- nesses until such time as their secondary effects can be adequately studied. M.S.A. § 462.355, subd. 4; Crystal, MN, Ordinance 95-11. . S. Constitutional Law x90(3) Content - neutral time, place, and manner regulations do not violate First Amendment if they are designed to serve substantial gov- ernment interest and do not unreasonably limit alternative avenues of communication. U.S.C.A. Const.Amend. 1. 9. Constitutional Law 4=90.4(1) - First Amendment does not require dity to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence city relies on in support of adult establishment ordinance is reasonably believed to be rele- vant to problem that city addresses. U.S.C.A. Const.Amend. 1. 10. Constitutional Law e-90.40) City need only prove that adult esl lishment 'ordinance targets businesses ; i sonably believed to produce at least ac unwanted • secondary effects, to prove • 1 ordinance is narrowly tailored to governor interest, as required by free speech clai U.S.C.A. Const.Amend. 1. 11. Constitutional Law X90.4(1) no When municipal ordinance restricts frd speech to control negative effects of adult establishments, it must provide' reasonable alternative avenues of com itu icatioW U.S.C.A. Const.Amend. 1. P7 12. Constitutional Law e-90.40) io, First Amendment requires only that City not deny adult establishments a reasonable opportunity to locate business within city U.S.C.A. Const.Amend. 1. 13. Constitutional Law X90.4(1) Zoning and Planning x76 1 Ordinance restricting location of adult establishment businesses to 16% of city's in- dustrial and commercial zones provided sd ficient reasonable alternative avenues of communication for adult novelty business, as required by First Amendment. U.S.C.A� ; Const.Amend. 1; Crystal, MN, Ordinance 96-2. I 14. Zoning and Planning X672 9 Discrepancy between zoning ordinance and comprehensive plan does not affect pre-'• sumption of validity of ordinance; it Is just evidence that ordinance may have been arbP trary. 't ' Syllabus by the Court l i , n, ,, 1. An, interim ordinance may place. >; moratorium on the location of adult establish ment businesses until such time as their sec- ondary effects can' be adequately studied pursuant to, •Minn.Stat. § 462.365, subd. 4 (1996). 1 2. "A municipality may reasonably rely on studies of the secondary effects of adult establishment businesses to restrict such' businesses, even if the studies focus on busi- nesses that provide on -site consumption of sexually explicit material and some of the O Y OF CRYSTAL v. FANTASY IIOUSE, INC. Minn. 227 Cite u 569 N.W.2d 225 (MInn.App. 1997) ; inesses being restricted do not provide ly tailored to a substantial government inter - �iite consumption. est. ' Also, the court held that it was not 1i3. An ordinance that restricts the loca- reasonable for Crystal to rely on studies of h'of adult establishment businesses to 15% adult establishments providing on -site con - the municipality's industrial and commer- sumption • of sexually explicit material be- I zones provides sufficient reasonable al- cause Fantasy . House does not provide on- T hve •avenues of communication for adult site consumption. o sFabliehment businesses. IR9n li a`Jatnes J. Thomson, Daniel J. Greensweig, Jennedy & Graven, Chartered, Minneapolis, rge C. Hoff, - Hoff, Barry & Kuderer, p! Eden Prairie, for appellant. " V'PaAd Gronbeck, Law Offices of David ri ronbeck I Minneapolis, for respondents. �Xarla J. Heyl St. Paul, for amicus curiae J�;ague. of Minnesota Cities.: i , kkithdall D.B. Tigue, Minneapolis, for amj- m 6tiriae Minnesota Civil Liberties Union. ,igConsidered and decided by HUSPENI, P.J.{ and KALITOWSKI and THOREEN t JJ... d,nsc : OPINION It HUSPENI, Judge. IJRespondent Fantasy House, Inca opened a novelty business in appellant City of Gry9tal in violation of Crystal's interim ordi- hance that bans adult establishments. Crys- ,W a motion for - declaratory judg- i that Fantasy House violated tlie: ordinance and seeking to enjoin Fantasy puse from operating its business in Crystal. iintasy House, in turn, alleged that both Qfdinance No. 95-11 (interim ordinance) and Ic ons ' later- adopted Ordinance No.` 96-2 (per - ient - ordinance) were unconstitutional re- of free speech. o r r . a trial, the court found that the t'�Im ordinance banned adult establish - �ri{s and that the permanent ordinance pro - ded.less ,than one percent of Crystal's land oI'Aheir'location, As a result, the court held t the interim and permanent ordinances ed provide reasonable alternative ave- es•of communication and were not narrow - �1 ui Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by ap- Because we conclude that (1) municipalities may rely on studies of the negative second- ary effects of adult establishments to draft a restrictive ordinance if the municipalities rea- sonably believe that the businesses studied are similar to those targeted by the ordi- nance and (2) the two ordinances in question provided reasonable alternative avenues of communication, we reverse. FACTS In June 1995, unaware that any adult es- tablishment was planning to open, appellant City of Crystal adopted Ordinance No. 95-11 (interim ordinance), which prohibited any adult establishment from locating within 1,000 feet of residential areas, daycare cen- ters, libraries, parks, religions institutions, playgrounds, or other public recreational ar- eas. Because no area within Crystal was not within 1,000 feet of such places, adult estab- lishments were effectively banned from the city. On December 1, 1995, respondent opened Fantasy House Gifts selling t- shirts, greeting cards, lingerie, a limited number of adult videos and books, and various sexual novelty items. The store was located in Crystal's B- 4 district and was within 1,000 feet of a park and of a residential area. Crystal moved for a declaratory judgment that Fantasy House violated the interim ordinance and for an injunction prohibiting Fantasy house from operating its business in Crystal. On January 16, 1996, Crystal adopted Or- dinance' blo. 96-2 (permanent ordinance), replacing the interim ordinance. The per- manent ordinance .restricts any business de- voting 25% or more of its floor area to merchandise depicting specified sexual ac- tivities or specified anatomical areas to in- dustrial areas not within 250 feet of any pointment pursuant to Minn.Const. art. VI, § 10. 228 Minn. 569 NORTH WESTERN REPORTER, *RIES residential boundary, church, school, day- care, park, or specified business and not within 500 feet of any other adult use. In February 1996, the city supplemented its original declaratory judgment complaint to include a claim that Fantasy House was in violation of the permanent ordinance. A bench trial was held on Crystal's request for a declaratory judgment and Fantasy House's challenge to the constitutionality of both the interim and permanent ordinances. Testimony at trial showed that the perma- nent ordinance permitted the location of adult establishments on 34 acres of land in Crystal.' The trial court found that Fantasy House was entitled to First Amendment pro- tection and that the ordinances were an un- constitutional restriction of free speech be- cause they were not narrowly tailored and did not provide reasonable alternative ave- nues of communication.. ISSUE Are the interim and permanent ordinances unconstitutional restrictions of free speech? ANALYSIS [1, 21 A municipal ordinance is presumed constitutional. The burden of proving that an ordinance is unreasonable or that the requisite public interest is not involved, and consequently that the ordinance, does not come within the police power of the city, rests on the party attacking its validity. City of St Paul v. Ualsin, 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955). Before addressing the constitutionality of the challenged ordinances, we must answer the preliminary question of whether First Amendment protections are at all implicated in this case. The trial court believed they were because "[p]art of (Fantasy House's) inventory consists of materials such as adult videos, greeting` cards with sexually explicit 1. It should be noted that, although the trial court focused its analysis on the fact that the avaitable land was .9% of the 3,768 total acres in Crystal, this available land also'represcnis 15% of Crys- tal's 233 acres of industrial and commercial zones. 2. Crystal claims that only approximately 2% of Fantasy House's materials are the type qualify messages, and T- shirts ' •• •." Crystal gues that Fantasy House is not entitled First Amendment protections because its op erations have only an incidental relationshy to.speech- related activities?:; t " We recognize that without First Amen - merit protection, Fantasy House would fa'e an insurmountable task in challenging these municipal ordinances. See Wedeineyer u; City of Minneapolis, 540 1J.W.2d 539,. G43 (Minn.App.1995) (municipal ordinances, valid, absent proof that they are clearly dia. criminatory and lack any relation, to pu A!� health, safety, or general welfare); Chase v. dity 'of Minneapolis, 401 N.W.2d 408; �12 (Minn.App.1987) (standard of review for ing decisions is whether the was i sonable and not arbitrary and capriciouig Therefore, because we deem it important. to reach the substantive issues presented this case, and because consideration of the substantive issues results in a conclusion that.' the ordinances are constitutional even wheel' tested under First Amendment principles, we shall assume, without so holding, that Fanta- sy House is indeed entitled to First Amend- ment protection. Constitutionality of the Interim Ordinance Crystal concedes that the interim grdi nance provided no place in Crystal for an adult business to • locate, but argues that Minn.Stat. § 462.355, subd. 4 (1996), gives# broad powers to create such an ordinancg, We agree. Minn.Stat. § 462.355, subd. 4, reads in rX evant part: If a municipality is conducting studies or has authorized a study to be conducted or has held or has scheduled a hearing for the purpose of considering adoption ' • • of [an ordinance] • • ' the governing body of the municipality may adopt an interim o - ing for First Amendment protection.. Fantasy House notes (hat Crystal cites to nothing in thg record that supports this assertion. We shall npS enter the thicket presented -by the question ii( whether First Amendment protections apply only when a certain percent of materials sold by art establishment are of the type qualifying for that protection. t O CITY OF CRYSTAL'v.;!FANTASY MOUSE, INC. Minn. 229 Che u 569 NM.2d 225 (MI—App. 1997) lance applicable to all or part ,of its Constitutionality of the Permanent Ordi- risdiction for the purpose of protecting nance betplanning process and the health, safety t?td.461fare of its citizens,: The interim Irilhiance may regulate,'restrictor Viany use • • • within the jurisdiction s • for a period not to exceed one year y6mithe date it is effective • ' •: a record indicates that Crystal complied L I�"�'� hese requirements. The interim ordi- 1Ee,,"Zindated that city study the [`e J "of [adult) uses orl * other uses in the nn are and present the results to 'Planning Commission' and City Council. 4191 h A Moratorium may be enacted for Itkil "duration if appropriate studies are iductkd and zoning ordinances are expedi- Aly adopted. Wedemeyer, 640 N.W.2d At wi 'Here, a permahent ordinance was SptA 'approximately seven months after ictinent of the interim ordinance. This expeditious as a matter of law. i, 6] We are aware, also, that a city may . enact an interim ordinance in an arbi- t ry manner to limit a certain project. Oical Services, Inc v. City of Savage, 487 fN2&263, 267 (Minn.App.1992). There is fipossibility that the interim ordinance at u9t here was enacted to limit a certain �joety The interim ordinance was enacted gash three months before Crystal became gr'e that Fantasy, House was planning to en' for business in Crystal. ff ',Fantasy House claims that Wede7ney- I and Medical Services are , an apparent dradiction to other holdings of this court. i l r MA Corp. v. City o St. Cloud, 562 u O y l , X2d, 312, 321 -22 (Minn.App.1997) ( "A city riot ban adult uses totally or fail to pro - I9 treasonable sites for relocation • • . • ") noting Alexander v. City of Minneapolis, 2d 278, 283-84 (8th Cir.1991)), review q (Minn. July 28, 1997). The distinc- >.however, is simple: while a city can r ely -ban a particular use with a permanent ��►4i[lg ordinance, Minnesota law created in- prlt zoning ordinances for just such a mora- rium. See Minn.Stat. § 462.355, subd. 4. [8) We turn' now to United States Su- preme' Court case law that describes the standards 9h ordinance must meet to comply with the constitutional requirements for re- stricting adult establishments. Content -neu- tral time, place, and manner regulations are constitutional if they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication. City of Renton v. Playtime Theatres, Ina., 475 U.S. 41, 47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986). Whether the permanent ordinance`is a valid content -neu- tral, time, place, and manner regulation was not addressed by the trial court and was not raised as an issue in this appeal. Therefore, we focus our analysis on whether the perma- nent ordinance does'serve a substantial gov- ernment interest and does not unreasonably limit alternative avenues of communication. A. Narrowly tailored to serve a sub - stantial government interest. Courts have consistently held that prevent- ing the negative secondary effects associated with adult establishments is a substantial government interest unrelated to the sup- pression of free expression. See City of Ren- ton, 475.U.S. at 50-51, 106 S.Ct. at 930 -31; ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir.1994). [9) For Crystal to prove that its perma- nent ordinance is narrowly tailored to the government interest, it must prove that adult establishments cause negative secondary ef- fects. In doing so, ,[t]he First Amendment does not require a city '. ' to conduct new studies or pro- duce evidence independent of that already generated by other cities, so long, as what- ever evidence the city relies upon is rea- sonably believed to be relevant to the problem that the city addresses. City of Renton, 475 U.S. at 51-52, 106 S.Ct. at 931 (emphasis added). In this case, Crystal relied on studies of businesses that allow on -site consumption of sexually explicit material to prove that all adult establishments cause negative second- 230 Minn. 569 NORTH WESTERN REPORTER, 2d *ES ary effects? The trial court agreed with Fantasy Houses position that the difference between businesses that provide on -site con- sumption of sexually explicit material and those that do not is so significant that the studies of businesses providing on -site con - sumption could not reasonably be relied upon to restrict businesses that do not provide on- site consumption. Because it rejected the city's reliance on these studies, the trial court held that the permanent ordinance f was not narrowly tailored to a substantial govern- ment interest and was unconstitutional. [101 While we do, not dispute that distinc- tions may, indeed, be drawn between on -site and off -site consumption in regulating adult establishments, we conclude that case law does not support the trial court's conclusion. The distinction between businesses that pro- vide on -site consumption and those that do not has been considered by this court and rejected as "simply not the law." City of Ramsey v. Holmberg, 648 N.W.2d 302, 306 (Minn.App.1996), review denied (Minn. Aug. 6, 1996). A city need only prove that the ordinance targets businesses "reasonably be- lieved to produce at least some of the un- wanted secondary effects * * *." /d (quot- ing ILQ Investments, 25 F.3d at 1418). We believe that the test established by the Supreme Court in City of Renton requires us to answer the following question: Did Crys- tal reasonably believe that the studies relied upon were relevant to restricting adult esta lishments4 We conclude that the testimony and evidence in , this case demonstrate that Crystal's belief was reasonable. Therefor'$" the permanent ordinance is narrowly tailored to meet the government's interest. l., 11. Reasonable alternative avenues . of communication. [11,12) , Under City of Renton, when e municipal ordinance restricts free speech order to control the negative effects of adult establishments, it must provide reasonable , alternative avenues of communication. Ida 1, 50, 106 S.Ct. at 930. The First Amendment requires only that a city not deny adult es- tablishments a reasonable opportunity to lo=; sate a business within the city. Id at 54, 106 S.Ct. at 932. Each business must fend foK itself in the real estate market and cope witli the same problems that all prospective pur chasers face. Id Providing 15 possible toes Lions has been found sufficient to meet the requirement of reasonableness. DI MA Corp., 662 N.W.2d at 322 (relying on Alexan- der v. City of Minneapolis, 928 F.2d at 283- 84) (holding that providing 6.6% of city's commercial land is sufficient). [13,141 In this case, the area provided by the permanent ordinance is .9% of the land in Crystal and IS% of the city's industrial and commercial zones; the trial court found this 3. Examples of adult establishments that provide on -site consumption of sexually explicit material include massage parlors, nude dance clubs, adult movie theaters, and adult establishments that provide booths for privately viewing adult mov. ies. Fantasy (louse provides no bh -site con- sumption of sexually explicit material. 4. The trial court's holding actually encompassed both the interim and permanent ordinances. In view of our earlier analysis of the constitutionali - ty of the interim ordinance, we limit our consid- eration of the trial court's determination on this Issue to the permanent ordinance only. 5. We note the strong dissent in City of Ramsey and other case law that would characterize this distinction as fundamental. See, e.g., ZJ. Gifts v. City of Aurora, 932 F.Supp. 1256, 1258 (D.Colo. 1996) (calling analysis in ILQ flawed for consid- ering the subjective intent of the city instead of the objective effects on the freedom to communi- cate). Further, in its amicus brief, Minnesota Civil Liberties Union (MCLU) cites 44 Liquormart v. Rhode Island, — U.S. —, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) to argue the ordi- nances upheld in ILQ and City of Ramsey vdould no longer be upheld. 44 Liquonttart holds that a state legislature does not have broad discretion to suppress truthful, non - misleading advertising to further a state goal when non - speech - related alternatives are available. — U.S. at —, 116 S.Ct. at 1511. A concurrence states that courts must carefully examine statutes that restrict speech allegedly to further a state goal. — VS. at —, 116 S.Ct; at 1522, O'Connor, l.,'concur;. ring. However. ILQ and City of Ramsey did not base their upholding of ordinances on any perceived discretion to suppress truthful, non - misleading speech. Instead, these courts based their hold- ings on the conclusion that the distinction be- tween businesses that provide on-site consump- tion and businesses that do not is Irrelevant, Such independent judicial determinations dem- onstrate that ILQ and City of Ramsey gave their`' respective ordinances sufficiently strict scrutiny. a result, any difficulty that Fantasy ,e has in locating in Crystal stems from ulties faced by all prospective real es- purchasers. The permanent ordinance des reasonable alternative avenues of nunication and is constitutional. DECISION 0 interim ordinance met the require - wnts of Minn.Stat. § 462.355, subd. 4 (1996). 1p enacting its permanent ordinance, Crystal Vasonably relied on studies that analyzed t negative secondary effects associated y'th adult establishment businesses to estab- lish - that the permanent ordinance served a gtjb$tantial government interest. The . per - W.anent ordinance also provided reasonable 0 ernative avenues of communication.. As a result, the interim and permanent ordinances We constitutional. 2b Reversed. r(linur �ihllf)'q' pRIr NUNBERfKIfH 70.:11,:. Court of Appeals of Minnesota. Sept. 30, 1997. Review Granted Dec. 16. 1997. Physician sued hospital and members of its professional review bodies for monetary and injunctive relief after his hospital privi- leges were revoked for noncooperative be- havior. The Jackson County District Court, Bruce F. Gross, J., granted summary judg- ment to defendants, and physician appealed. The Court of Appeals, Short, J., held that: (1) appendix to physician's reply brief would be stricken; (2) physician's evidence did not re- but presumption that defendants were enti- tled to immunity from liability for damages under federal Health Care Quality Improve- ment Act (HCQIA); and (3) trial court did not abuse its discretion in awarding attorney fees to hospital or in limiting award to $25,- 000 of $137,000 requested. Affirmed; motion to strike granted. E Appeal and Error x757(1), 767(2) Costs e-252 , _ Because appendix to appellant's reply brief was prepared after trial solely for pur- pose of appeal, appellate court would grant hospital's motion to strike it, though without awarding fees. • 61 ,M.S.A., Rules Civ.App. !' Proc., Rule. 110.01. . ' antasy House asserts that zoning to put com- rcial uses,in the industrial section of.lown is gal because it conflicts with Crystal's compre- V ive plan. Minn.Stat. § 473.865, subd. 2 6) <T'A' ["I governmental unit shall not )pt any official control * • ! in conflict with (comprehensive plan • • • "). 1lowever, a ciepancy between the zoning ordinance and comprehensive plan does not affect the pre - nption of validity of the ordinance; it is just evidence that the ordinance may have been aibi- trary. R.A. Putnam & Associates, Inc. v. City of r. Mendota Heights, Dakota County, 510 N.W.2d 264, 268 (Mion.App.1994), review denied (Minn. Mar. 15,.1994). 1. 7. Testimony indicates that only 6% of Crystal is zoned for commercial or industrial uses. DOOR'S MEDICAL CLINIC i., CITY OF JACKSON Minn. 231 Cite as 569 N.W.2d 231 (M1nn.App. 1997) a to be insufficienL Again, we find' that I q a law does not support the trial court's DOC`TOR'S MEDICAL CLINIC, �nclusions. The area available,to Fantasy et al., Appellants, ,Upu$e is , more than double the percentage fqur)d : to be reasonable in Alexander. In V. jldition, we agree with Crystal's represents- CITY, OF JACKSON, Minnesota d/b /a qn that the limited area available in its city Jackson Medical Center, et al.,. of the city's overwhelmingly real- . Respondents. c an conservative planning enhd tiling �. Nos. CI- 97 -50, C4 -97 -527. pr4ctices. a result, any difficulty that Fantasy ,e has in locating in Crystal stems from ulties faced by all prospective real es- purchasers. The permanent ordinance des reasonable alternative avenues of nunication and is constitutional. DECISION 0 interim ordinance met the require - wnts of Minn.Stat. § 462.355, subd. 4 (1996). 1p enacting its permanent ordinance, Crystal Vasonably relied on studies that analyzed t negative secondary effects associated y'th adult establishment businesses to estab- lish - that the permanent ordinance served a gtjb$tantial government interest. The . per - W.anent ordinance also provided reasonable 0 ernative avenues of communication.. As a result, the interim and permanent ordinances We constitutional. 2b Reversed. r(linur �ihllf)'q' pRIr NUNBERfKIfH 70.:11,:. Court of Appeals of Minnesota. Sept. 30, 1997. Review Granted Dec. 16. 1997. Physician sued hospital and members of its professional review bodies for monetary and injunctive relief after his hospital privi- leges were revoked for noncooperative be- havior. The Jackson County District Court, Bruce F. Gross, J., granted summary judg- ment to defendants, and physician appealed. The Court of Appeals, Short, J., held that: (1) appendix to physician's reply brief would be stricken; (2) physician's evidence did not re- but presumption that defendants were enti- tled to immunity from liability for damages under federal Health Care Quality Improve- ment Act (HCQIA); and (3) trial court did not abuse its discretion in awarding attorney fees to hospital or in limiting award to $25,- 000 of $137,000 requested. Affirmed; motion to strike granted. E Appeal and Error x757(1), 767(2) Costs e-252 , _ Because appendix to appellant's reply brief was prepared after trial solely for pur- pose of appeal, appellate court would grant hospital's motion to strike it, though without awarding fees. • 61 ,M.S.A., Rules Civ.App. !' Proc., Rule. 110.01. . ' antasy House asserts that zoning to put com- rcial uses,in the industrial section of.lown is gal because it conflicts with Crystal's compre- V ive plan. Minn.Stat. § 473.865, subd. 2 6) <T'A' ["I governmental unit shall not )pt any official control * • ! in conflict with (comprehensive plan • • • "). 1lowever, a ciepancy between the zoning ordinance and comprehensive plan does not affect the pre - nption of validity of the ordinance; it is just evidence that the ordinance may have been aibi- trary. R.A. Putnam & Associates, Inc. v. City of r. Mendota Heights, Dakota County, 510 N.W.2d 264, 268 (Mion.App.1994), review denied (Minn. Mar. 15,.1994). 1. 7. Testimony indicates that only 6% of Crystal is zoned for commercial or industrial uses. 1 2 7 . 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Title 300 of the Shorewood Code of Ordinances is hereby amended by adding a new chapter as follows: • CHAPTER 309 ADULT ESTABLISHMENTS 309.01:FINDINGS AND PURPOSE: Studies conducted by the Minnesota Attorney General, the American Planning Association, and cities such as St. Paul, Minnesota; Indianapolis, Indiana; Hopkins, Minnesota; Ramsey, Minnesota; Rochester, Minnesota; Phoenix, Arizona; Los Angeles, California; and Seattle, Washington have studied the impacts that adult establishments have in those communities. These studies have concluded that adult establishments have adverse impacts on the surrounding neighborhoods. These impacts include increased crime rates, lower property values, increased transiency, neighborhood blight, and potential health risks. Based on these studies and findings, the City Council concludes: Subd. 1. Adult establishments have adverse secondary impacts of the types set forth above. Subd. 2 The adverse impacts caused by adult establishments tend to diminish if adult establishments are governed by geographic, licensing, and health requirements. Subd. 3. It is not the intent of the City Council to prohibit adult establishments from having a reasonable opportunity to locate in the city. Subd. 4 Minnesota Statutes section 462.357 and section 412.221 allow the City to adopt regulations to promote the public health, safety, morals and general welfare. Subd. 5. The public health, safety, morals and general welfare will be promoted by the city adopting regulations governing adult establishments. Attachment V 309.02: DEFINITIONS: For purposes of this chapter, the following terms have the meanings given them. Subd. 1. "Adult Establishment" means: a. any business that is conducted exclusively for the patronage of adults and that excludes minors from patronage, either by operation of law or by the owners of the business, except any business licensed under Title 400 of this Code; b. any business that devotes 25% or more of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to or derives 25% or more of its revenues from, items, merchandise, devices or other materials distinguished or characterized by an emphasis on material depicting, exposing, simulating, • describing, discussing, or relating to Specified Sexual Activities or Specified Anatomical Areas; or C. any business that engages in any Adult Use as defined in Subd. 2. of this chapter. Subd. 2. An "Adult Use" is any of the following activities or businesses: a. "Adult Body Painting Studio" means an establishment or business that provides the service of applying paint, ink, or other substance, whether transparent or non - transparent, to the body of a patron when the person is nude. b. "Adult Bookstore" means an establishment or business used for the barter, rental, or sale of items consisting of printed matter, pictures, slides, records, audio tape, videotape, or motion picture film if. (1) the business is not open to the public generally but only to one or more classes of the public, exclud- ing any minor by reason of age; or (2) 25% or more of the floor area of the business (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) is devoted to, or 25% or more of the revenue of the business is derived from, items, merchandise, or other materials distinguished or characterized by an emphasis on material depicting, exposing, describing, discussing, or relating to Specified Sexual Activities or Specified Anatomical Areas. C. "Adult Cabaret" means a business or establishment that provides dancing or other live entertainment distinguished or characterized by an emphasis on: (1) the depiction of Specified Sexual Activities or Specified Anatomical Areas; or (2) the presentation, display, or depiction of matter that seeks to evoke, arouse, or excite sexual or erotic feelings or desire. Rev. 5 -11 -98 -2- d. "Adult Companionship Establishment" means a business or establishment that excludes minors by reason of age, and that provides the service of engaging in or listening to conversation, talk, or discussion distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. e. "Adult Conversation/Rap Parlor" means a business or establishment that excludes minors by reason of age, and that provides the services of engaging in or listening to conversation, talk, or discussion distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. f. "Adult Health/Sport Club" means a health/sport club that excludes minors by reason of age, and that is distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. g. "Adult Hotel or Motel" means a hotel or motel that excludes minors by reason of age, and that presents material distinguished or characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas. h. "Adult Massage Parlor/Health Club" means a massage parlor or health club that excludes minors by reason of age, and that provides massage services distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. i. "Adult Mini - Motion Picture Theater" means a business or establishment with a capacity of less than 50 persons that presents material distinguished or characterized by an emphasis on Specified Sexual Activities or Specified • Anatomical Areas. j. "Adult Modeling Studio" means a business or establishment that provides figure models who, with the intent of providing sexual stimulation or sexual gratification, engage in Specified Sexual Activities or display Specified Anatomical Areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted. k. "Adult Motion Picture Arcade" means any place to which the public is permitted or invited where coin or slug- operated or electronically, electrically, or mechanically controlled or operated still or motion picture machines, projectors, or other image - producing devices are used to show images 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. Rev. 5 -11 -98 -3- "Adult Motion Picture Theater" means a motion picture theater with a capacity of 50 or more persons that as a prevailing practice excludes minors by reason of age or that as a prevailing practice presents material distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas for observation by patrons. m. "Adult Novelty Business" means an establishment or business that devotes 25% or more of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to, or derives 25% or more of its revenues from items, merchandise, or devises that either simulate Specified Sexual Activities or Specified Anatomical Areas or are designed for sexual stimulation. n. "Adult Sauna" means a sauna that excludes minors by reason of age, and that provides a steam bath or heat bathing room used for the purpose of bathing, relaxation, or reducing, if the service provided by the sauna is • distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. o. "Adult Steam Room/Bathhouse Facility" means 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, if the building or portion of a building restricts minors by reason of age and if the service provided by the steam room/bathhouse facility is distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas. Subd. 3. "Nude or Specified Anatomical Areas" means: a. Less than completely and opaquely covered human genitals, pubic regions, buttocks, anuses, or female breasts below a point immediately above the top of the areola; and b. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. Subd. 4. "Specified Sexual Activities" means: a. 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; the use of excretory functions in the context of a sexual relationship; anilingus; buggery; coprophagy; coprophilia; cunnilingus; fellatio; necrophilia; pederasty; pedophilia; piquerism; sapphism; or zooerastia; b. Clearly depicted human genitals in the state of sexual stimulation, arousal, or tumescence; Rev. 5 -11 -98 -4- C. Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; d. Fondling or touching of nude human genitals, pubic regions, buttocks, or female breasts; e. Situations involving a person or persons, any of whom are nude, who are clad in undergarments or in sexually revealing costumes and engaged in the flagellation, torture, fettering, binding, or other physical restraint of any person; f. Erotic or lewd touching, fondling, or other sexually oriented contact with an animal by a human being; or g. Human excretion, urination, menstruation, or vaginal or anal irrigation. a 309.03 Location. An Adult Establishment may not be located within 200 (two hundred) feet of. any residentially -zoned property boundary; or any church site, school site, day care facility, park, or within 10 (ten) feet of a business licensed under Title 400 of this Code. An Adult Establishment may not be located within 200 (two hundred) feet of another Adult Establishment. For purposes of this chapter, this distance is a horizontal measurement from the main public entrance of the Adult Establishment to: the nearest point of a residentially -zoned property boundary; the property line of a church site, school site, day care facility, park, or business licensed under Title 400 of this code; and the main public entrance of another Adult Establishment. 309.04 Hours of Operation. An Adult Establishment may not be open to the public between the hours of 10:00 p.m. and 8:00 a.m. 309.05 Additional Conditions for Adult Cabarets. The following additional conditions apply to adult cabarets: Subd. 1 An owner, operator, or manager of an adult cabaret may not allow any dancer or other live entertainer to display Specified Anatomical Areas or to display or perform Specified Sexual Activities on the premises of the Adult Cabaret; Subd. 2 A dancer, live entertainer, performer, patron, or any other person may not display Specified Anatomical Areas in an Adult Cabaret; Subd. 3 The owner, operator, or manager of an adult cabaret must provide the following information to the city concerning any person who dances or performs live entertainment at the adult cabaret: The person's name, home address, home telephone number, date of birth, and any aliases; Rev. 5 -11 -98 -5- Subd. 4 A dancer, live entertainer, or performer may not be under 18 years old; Subd. 5 Dancing or live entertainment must occur on a platform intended for that purpose and that is raised at least two feet from the level of the floor; Subd. 6 A dancer or performer may not perform a dance or live entertainment closer than ten feet from any patron; Subd. 7 A dancer or performer may not fondle or caress any patron and no patron may fondle or caress any dancer or performer; Subd. 8 A patron may not pay or give any gratuity to any dancer or performer; and Subd. 9 A dancer or performer may not solicit or accept any pay or gratuity from any patron. 309.06 License Required. Subd. 1 A person may not own or operate an Adult Establishment without having first secured a license as provided for in this chapter. Notwithstanding any other provision of this code to the contrary, the procedures set forth in this chapter establish the exclusive method for obtaining an adult establishment license.. Subd. 2 The application for an Adult Establishment license must be submitted on a form provided by the City and must include: a. If the applicant is an individual, the name, residence, phone number, and birth date of the applicant. If the applicant is a partnership, the name, residence, phone number, and birth date of each general and limited partner. If the applicant is a corporation, the names, residences, phone numbers, and birth dates of all persons holding more than five percent of the issued and outstanding stock of the corporation; b. The name, address, phone number, and birth date of the operator and manager of the Adult Establishment, if different from the owner's; C. The address and legal description of the premises where the Adult Establishment is to be located; d. A statement detailing any gross misdemeanor or felony convictions relating to sex offenses, obscenity, or the operation of an Adult Establishment or adult business by the applicant, operator, or manager, and whether or not the applicant, operator or manager has ever applied for or held a license to operate a similar type of business in another community. In the case of a corporation, a statement detailing any felony convictions by the owners of more than five percent of the issued and outstanding stock of the corporation, and whether or not those owners have ever applied for or held a license to operate a similar type of business in another community; Rev. 5 -11 -98 -6- e. The activities and types of business to be conducted; f. The hours of operation; g. The provisions made to restrict access by minors; and h. A building plan of the premises detailing all internal operations and activities. Subd. 3 The license fee provisions for Adult Establishments are as follow: a. The annual license fee is set by Council resolution. b. An application for a license must be submitted to the City Clerk and accompanied by payment of the required license fee. Upon rejection of an application for a license, the City will refund the license fee. • C. Licenses will expire on December 31 in each ear. Each license will be P Y issued for a period of one year, except that if a portion of the license year has elapsed when the application is made, a license may be issued for the remainder of the year for a pro rated fee. In computing a pro rated fee, any unexpired fraction of a month will be counted as one month. d. No part of the fee paid by any license will be refunded, except that a pro rata portion of the fee will be refunded in the following instances upon application to the City Council within 30 days from the happening of one of the following events, provided that the event occurs more than 30 days before the expiration of the license: (i) Destruction or damage of the licensed premises by fire or • other catastrophe; (ii) The licensee's illness, if such illness renders the licensee unable to continue operating the licensed Adult Establishment; (iii) The licensee's death; or (iv) A change in the legal status making it unlawful for the licensed business to continue. e. An application must contain a provision in bold print indicating that withholding information or providing false or misleading information will be grounds for denial or revocation of a license. Changes in the information provided on the application or provided during the investigation must be brought to the attention of the City Council by the applicant or licensee. If such a change takes place during the investigation, it must be reported to the police chief or the City Clerk in writing and they will report it to the City Rev. 5 -11 -98 -7- Council. A failure by an applicant or licensee to report such a change may result in a denial or revocation of a Iicense. Subd. 4 The investigative fee for an Adult Establishment license is established by City Council resolution. Subd. 5 The procedures for granting an Adult Establishment license are as follow: a. The Chief of Police will conduct and complete an investigation within 30 days after the City Clerk receives a complete application and all license and investigative fees. b. If the application is for a renewal, the applicant will be allowed to continue business until the City Council has determined whether to renew or refuse to renew a license. • C. If, after the investigation, it appears that the applicant and the place proposed for the business are eligible for a license, then the license will be issued by the City Council within 30 days after the investigation is completed. If the City Council fails to act within 30 days after the investigation is completed, the application will be deemed approved. d. A license will be issued to the applicant only and is not transferable to another holder. Each license will be issued only for the premises described in the application. A license may not be transferred to another premise without the approval of the City Council. If the licensee is a partnership or a corporation, a change in the identity of any partner or holder of more than five percent of the issued and outstanding stock of the corporation will be deemed a transfer of the license. Adult Establishments existing at the time of the adoption of this chapter must obtain an annual license. • Subd. 6 A license will not be granted to or held by a person who: a. Is under 21 years of age; b. Who is overdue or whose spouse is overdue in payments to the city, county, or state of taxes, fees, fines or penalties assessed against them or imposed upon them; C. Who has been convicted or whose spouse has been convicted of a gross misdemeanor or felony or of violating any law of this state or local ordinance relating to sex offenses, obscenity offenses, or Adult Establishments; d. Who is not the proprietor of the establishment for which the license is issued; f. Who is residing with a person who has been denied a license by the City or Rev. 5 -11 -98 -8- any other Minnesota municipal corporation to operate an Adult Establishment, or residing with a person whose license to operate an Adult Establishment has been suspended or revoked within the preceding twelve (12) months; or g. Who has not paid the license and investigative fees required by this chapter. Subd. 7 An Adult Establishment license will not be granted for: a. Any Adult Establishment on premises where the applicant or any of its officers, agents or employees has been convicted of a violation of this article, or where a license hereunder has been revoked for cause, until one (1) year has elapsed after the conviction or revocation; b. Any Adult Establishment that is not in full compliance with the City Code and all provisions of state and federal law; or C. Any premises that are licensed under chapter 4 of this code. Subd. 8 A license is subject to the provisions of this article, and of any applicable chapters of the City Code and all provisions of state and federal law. Subd. 9 Licensed premises must have the license posted in a conspicuous place at all times. Subd. 10 A minor may not be permitted on the licensed premises. Subd. 11 Any designated inspection officer of the City has the right to enter, inspect, and search the premises of a licensee during business hours. Subd. 12 The licensee is responsible for the conduct of the licensed place of business and • must maintain conditions of order. Subd. 13 Adult goods or materials may not be offered, sold, transferred, conveyed, given or bartered to a minor, or displayed in a fashion that allows them to be viewed by a minor, whether or not the minor is on the licensed premises. Subd. 14 The licensee must keep itemized written records of all transactions involving the sale or rental of all items or merchandise for at least one year after the transaction. At a minimum, those records must describe the date of the transaction, a description of the transaction, the purchase price or rental price, and a detailed description of the item or merchandise that is being purchased or rented. These written records must be provided to the City upon request. Subd. 15 Suspensions, revocations, and nonrenewals of Adult Establishment licenses are governed by the following provisions: a. A violation of this article is a basis for the suspension or revocation of a license granted hereunder. In the event that the City Council proposes to Rev. 5 -11 -98 -9- revoke or suspend the license, the licensee must be notified in writing of the basis for such proposed revocation or suspension. The Council will hold a hearing for the purpose of determining whether to revoke or suspend the license. The hearing must be within 30 days of the date of the notice. The City Council must determine whether to suspend or revoke a license within 30 days after the close of the hearing or within 60 days of the date of the notice, whichever is sooner. the Council must notify the licensee of its decision within that period. b. If the Council determines to suspend or revoke a license, the suspension or revocation is not effective until 15 days after notification of the decision to the licensee. If, within that 15 days, the licensee files and serves an action in state or federal court challenging the council's action, then the suspension or revocation is stayed until the conclusion of such action. C. If the City Council determines not to renew a license, the licensee may continue its business for 15 days after receiving notice of such non - renewal. If the licensee files and serves an action in state or federal court within that 15 days for the purpose of determining whether the City acted properly, the licensee may continue in business until the conclusion of the action. d. If the City Council does not grant a license to an applicant, then the applicant may commence an action in state or federal court within 15 days for the purpose of determining whether the City acted properly. The applicant may not commence doing business unless the action is concluded in its favor. Section 2 . Title 500 of the Shorewood Code of Ordinances is hereby amended by adding a new chapter as follows: • Chapter 509 PREMISES CONDUCIVE TO HIGH -RISK SEXUAL CONDUCT 509.01 Findings and Purpose Conduct. The City Council of the City of Shorewood makes the following findings regarding the need to regulate commercial premises, buildings, and structures that are conducive to the spread of communicable disease of danger to persons in order to further the substantial interest of public health: Subd. 1. The experience of other cities establishes that certain commercial premises, buildings, and structures, or parts thereof, by reason of the design and use of such premises, buildings, or structures are conducive to the spread of communicable disease of danger to persons frequenting such premises, buildings, or structures, as well as to the general public, and that the risk of spreading infectious and contagious diseases can be minimized by regulating such commercial premises, buildings, and structures. Rev. 5 -11 -98 -10- Subd. 2. The experience of other cities where such commercial premises, buildings, and structures are present indicates that the risk of spreading the sexually transmittable disease of Acquired Immune Deficiency Syndrome (AIDS) is increased by the presence of such premises, buildings, and structures, because the design or use of such premises, buildings, and structures, or parts thereof can facilitate high -risk sexual conduct. Subd. 3. Medical publications of the Center for Disease Control of the United States Department of Health and Human Services indicate that the sexually transmittable disease of AIDS is currently irreversible and uniformly fatal. Medical research has further established that the risk factors for obtaining or spreading AIDS are associated with high risk sexual conduct. Subd. 4. Certain commercial premises, buildings, and structures, or parts thereof, by reason • of their design and use, are conducive to high -risk sexual conduct and hence the spread of communicable disease, and that the risk of spreading infectious and contagious diseases can be minimized by regulating these commercial premises, buildings, and structures. Subd. 5. The public health, safety, morals and general welfare will be promoted by the City adopting regulations governing commercial premises, buildings, and structures conduce to high -risk sexual conduct. Subd. 6. The purpose of these regulations is to prescribe regulations governing commercial premises, buildings, and structures that are conducive, by virtue of design and use, to high -risk sexual conduct which can result in the spread of sexually transmitted diseases to persons frequenting such premises, buildings, and structures. • 509.02 Definitions. For purposes of this chapter, the following terms have the meanings given them. Subd. 1. 'Booths, stalls, or partitioned portions of a room or individual room" means (i) enclosures specifically offered to persons for a fee or as an incident to performing high -risk sexual conduct, or (ii) enclosures which are part of a business operated on the premises which offers movies or other entertainment to be viewed within the enclosure, including enclosures wherein movies or other entertainment is dispensed for a fee, but does not include enclosures that are private offices used by the owners, managers or persons employed by the premises for attending to the tasks of their employment, and which are not held out to the public or members of the establishment for hire or for a fee or for the purpose of viewing movies or other entertainment for a fee, and are not open to any persons other than employees. Subd. 2. "Doors, curtains or portal partitions" means full, complete, non - transparent closure devices through which one cannot see or view activity taking place within the enclosure. Rev. 5 -11 -98 -11- townhomes, or boarding houses which are subject to other general health and sanitation requirements under state and local law. 509.05 Health Enforcement Powers. Subd. 1. In exercising powers conferred by this or any other chapter of this code relating to communicable diseases, the Public Health Official is to be guided by the most recent instructions, opinions and guidelines of the Center for Disease Control of the United States Department of Health and Human Services that relate to the spread of infectious diseases. Subd. 2. In order to ascertain the source of infection and reduce its spread, the Public Health Official, and persons under the Public Health Official's direction and control, may inspect or cause to be inspected, and to issue orders regarding any commercial building, structure or premises, or any part thereof, that may be a site of high -risk sexual conduct. If the Public Health Official determines that a hazardous site as defined herein exists, the Public Health Official will declare it to be a public health hazard and public health nuisance and will: a. Notify the manager, owner, or tenant of the hazardous site that the Public Health Official has reasonable belief that the premises, building or structure is a hazardous site as defined herein, b. Issue two written warnings at least ten days apart to the manager, owner, or tenant of the premises stating the specific reasons for the Public Health Official's opinion that the premises, building, or structure is a hazardous site as defined herein, C. Once such notices and warnings have been issued, the Public Health Official must proceed as follows: (i) After the manager, owner or tenant of the premises has been notified in writing as to the basis of the Public Health Official's determination, the manager, owner or tenant will have ten days from the date of the last warning to request a hearing before the Public Health Official or the Public Health Official's appointee for the determination as to the existence of such hazardous site. If the manager, owner or tenant of the premises does not request a hearing within ten days of the date of the last warning notice, the Public Health Official will then cause the premises to be posted with a warning advising the public that the premises have been declared a hazardous site and the Public Health Official will cause orders to be issued to the manager, owner or tenant of the premises constituting the hazardous site to take specified corrective measures to prevent high -risk sexual conduct from taking place within the premises. Rev. 5 -11 -98 -13- (ii) If the manager, owner, or tenant of the premises requests a hearing, the hearing will be held before the Public Health Official or the Public Health Official's appointee at a date not more than 30 days after demand for a hearing. After considering all evidence, the Public Health Official or the Public Health Official's appointee will make a determination as to whether the premises constitute a hazardous site, as defined herein and issue a decision based upon all hearing evidence presented. If the Public Health Official or the Public Health Official's appointee makes a determination that the premises constitute a hazardous site, the Public Health Official will then issue orders to the manager, owner, or tenant of the premises to take corrective measures to prevent high -risk sexual conduct from taking place within the premises and cause the premises to be posted with a warning advising the public that the premises have been declared a hazardous site. (iii) If, within 30 days after issuance of the orders to the manager, owner, or tenant of the hazardous site, the Public Health Official determines that such corrective measures have not been undertaken, the Public Health Official: may order the abatement of the hazardous site as a public nuisance, which may be enforced by mandatory or prohibitory injunction in a court of competent jurisdiction; or, may secure a court order for the closure of the premises constituting the hazardous site until the premises, building, or structure is in compliance with all provisions of this code. 509.06 Criminal Penalties. 10 A person violating any provision of this article or any person who removes, destroys or defaces warnings posted on premises by the Public Health Official pursuant to this chapter shall be guilty of a misdemeanor. Section 3 . This ordinance shall take effect on the day following its publication. Adopted this day of ' 1998. Tom Dahlberg, Mayor ATTEST: James C. Hurm, City Administrator /Clerk Rev. 5 -11 -98 -14- Kennedy L Graven. 47o ritbburq Gcnter 200 south surh Strm mutnctpoLs MN 55402 (612) 337 -9 telephone (612) 337 -9310 Fit c -mnl: artyc@kcnncdy -pAvcn cote DANt LJ. GPXENSWV-mc Attomey at Lam Direct DW (612) 337 -923 e -mail= dp cam° 690- kennedy- 9r`W -C= MEMORANDUM TO: Members of the Planning Commission • FROM: Dan Greensweig. Assistant City Attorney DATE: June 2. 1998 RE_ Conditional Use Permits for Adult Establishments I have been asked to provide information regarding the advisability of conditional use permit provisions in the city's adult use ordinance. I would advise against such provisions for both legal and practical reasons. From a legal perspective, the conditional use permitting Process clashes with judicial reluctance to allow cities to exercise ease -by -case discretion with respect to activities entitled to First • Amendment protection. Conditional use permits are. of course, a means by which a city can adopt appropriate restrictions on a land use that may otherwise not be appropriate for the area in which it will be located. As a result, the permits are necessarily fact - specifics involve extensive public participation, and attempt to balance the rights of the landowner against the rights of other residents of the neighborhood and the city. With regard to adult uses. though, the United States Supreme Court has found unconstitutional a pertnitting ordinance that allowed a city to impose "such other terns and conditions deemed necessary and reasonable.` In other words. by providing the city with the discretion that is a fundamental part of the rationale behind conditional use permits, the ordinance ran afoul of the First Amendment. From a practical standpoint, a conditional use permit approach also poses problems. it might be possible to devise a conditional use permit process that contains enough restrictions on the city's discretion to pass constitutional muster. Aside from the fact that these restrictions would essentially defeat the purpose of a conditional use permit, however. doing so would also create a situation in which public hearings would be required even though the city would be unable to constitutionally respond to many of the public's concerns adult t requests. Assuming the awning busin otherwise met the standards contained A7cia43ae :;uZ30 2 98 1 -J SOMA ££8 -1 O££BL££Z19 N300 7 A03NN3X -W0IJ we8Z:11 gg- ZO -unr Shorewood Planning Commission Memorandum June 2. 1998 Page 2 Commission and city council would therefore be placed in the difficult position of either voting or voting to deny to approve the conditional use permit in the face of strong public oppoos�i�tr�>�ve a p oor chance the permit in the face of a virtually guaranteed lawsuit that the city p of winning. In conclusion, it is my advice that a conditional use permit process not be used in the context of adult businesses entitled to first amendment protection. The owners of these types of business are generally very willing to engage in litigation, and there have been instances in which courts . have (perhaps improperly) thrown out entire adult use ordinances because of one perceived flaw. Thus, an overly aggressive adult use ordinance could lead to a situation in which the city has no valid regulations in place to restrict the location of precisely the type of establishment that is most likely to raise legitimate public concerns about property values and other land use issues. 7 hope that this information is helpful to you. If you have u� ge please et me additional materials about this or any other topic regarding reg ulation. know. • WG14434P SH230 -7 88 1 —� COMA t£B —! Ol£61.££Z19 UAM I A03NUN —woJi wsVZ:II 96— ZO —unr CITY OF SHOREWOOD CITY COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, MAY 19,1998 7:00 P.M. MINUTES CALL TO ORDER Chair Borkon called the meeting to order at 7:00 p.m. ROLL CALL Present: Chair Borkon; Commissioners Bailey, Callies, Collins and Anderson; Planning Director Nielsen; Council Liaison O'Neill. Absent: Commissioner Lizee APPROVAL OF MINUTES • Planning Commission Minutes - April 21,1998 Collins moved, Bailey seconded approving the Planning Commission Minutes of April 21, 1998, as amended on Page 2, Paragraph 4, Sentence 5, change "driveway issue" to "right - of -way issue." Motion passed 510. Planning Commission Minutes - May 5,1998 Collins moved, Anderson seconded approving the Planning Commission Minutes of May 5, 1998, as amended on Page 4, Item No. 3, Paragraph 6, delete "Commissioner Bailey noted his agreement." Motion passed 510. • Chair Borkon asked Council Liaison O'Neill to report on the recent storm damage ge throughout the city. Council Liaison O'Neill reported on the Emergency Council Meetings which have been held in this regard as well as the steps which are being taken to assist the residents through this situation. 1. DRAFT OF ADULT USE ORDINANCE Planning Director Nielsen reviewed and described the existing commercial areas in Shorewood as well as the impact the 200 -foot setback requirement would have on each of the sites. He pointed out there are a very limited number of areas in which an adult establishment could be located. Nielsen also provided a draft ordinance for review and consideration by the Commission. Commissioner Collins supplied the Commission with a copy of the Adult Use Ordinance currently in effect in St. Louis Park for their information and review. A PLANNING COMMISSION WORK SESSION MINUTES MAY 19,1998 - PAGE 2 Chair Borkon noted the only possible locations would be on Vine Hill Road, Highway 19 or the Shorewood Shopping Center. She inquired whether a Conditional Use Permit could be utilized. Nielsen explained in studying various ordinances, most cities are making this situation a permitted use along with a licensing procedure which is more stringent than conditional uses. The only element which would not be a part of a permitted use would be the public hearing process. In addition, Nielsen pointed out the licensing process would require a number of conditions. Chair Borkon asked whether the licensing requirements could be conditions contained within a Conditional Use Permit. Nielsen explained a Conditional Use Permit could be used subject to the requirements of Chapter 309. He felt the licensing process to be a stronger tool. Chair Borkon suggested requiring licensing in additional to a Conditional Use Permit. Nielsen stated he is investigating this matter. With respect to St. Louis Park, Commissioner Collins noted the permit itself could be so restrictive conditions would be unnecessary. • Chair Borkon stated she would be in favor of a Conditional Use Permit as long as a license is also required. She felt this would give the City more control. Commissioner Callies expressed • concern relative to a public hearing in that the Commission cannot deny an application based on public input opposing a particular request. Commissioner Anderson suggested utilizing a Conditional Use Permit which incorporates the setback requirements. Chair Borkon stated she would like to utilize the Conditional Use Permit process because it would give the City more control and provides the community with an opportunity to voice any concerns they may have. Commissioner Callies questioned whether there is a public hearing process in applying for a license. Nielsen noted there is no requirement for a public hearing process. Commissioner Bailey expressed concern relative to the Conditional Use Permit process in that it may ultimately raise First Amendment issues. Chair Borkon felt a public hearing to be an essential part of the process and commented the Commission can explain to the public there are restrictions which the Commission must adhere to such as making sites available for this use. Council Liaison O'Neill stated he would be interested in the licensing process. While he is in favor of public hearings, he did not feel there would be a benefit to holding a hearing and then informing the public the Commission is legally bound to provide a site. Commissioner Anderson inquired as to any notice area which would be required for the licensing process. Nielsen noted there is not a notification process, however, this requirement could be added to the licensing process. Chair Borkon stated she would be in favor of utilizing the licensing process as long as there is a mechanism for notification. Commissioner Anderson noted two of the sites border other communities and inquired what requirements from an adjacent community might have to be taken into consideration. He PLANNING COMMISSION WORK SESSION MINUTES MAY 19, 1998 - PAGE 3 suggested there may be a need for a reciprocal discussion with the adjacent communities. Nielsen will review this issue and report back to the Commission. Commissioner Anderson stated in the event of a public hearing, he wants to feel comfortable the Commission knows what will be said to the public relative to how the sites where selected. Nielsen noted this particular text amendment does not reference a particular site, therefore, a public hearing notice will be placed in the newsletter as well as a press release in the newspaper announcing a public hearing will be held to consider a text amendment to the ordinance having to deal with zoning in relation to Adult Use. Anderson moved, Bailey seconded accepting the language in the proposed ordinance to include a public notice requirement for the licensing process. Nielsen felt the Commission should examine both approaches. If the Commission should decide to use the permitted route as opposed to a Conditional Use Permit, a notice requirement would need to be incorporated into the licensing procedure. Commissioner Anderson stated it is • important to ensure there will be a public hearing regardless of the approach which is adopted. Commissioner Callies suggested amending the motion approving the language with the notice requirement for the licensing process, however, noting the Planning Commission will continue to study the Conditional Use Permit process. Commissioners Anderson and Bailey noted their agreement to the proposed amendment. Anderson moved, Bailey seconded amending the motion to include the Commission will consider further study of the Conditional Use Permit Process. Vote on Motion: Motion passed 510. 2. MATTERS FROM THE FLOOR - None 0 3. REPORTS Commissioner Bailey questioned a comment which Council Liaison O'Neill made at a Council meeting relative to complaints he has received from a number of residents relative to the length of time the Planning Commission spends on a particular issue. Commissioner Bailey questioned whether there is something the Commission should do in this regard. Council Liaison O'Neill explained he has received a number of complaints from residents as well as members of the Commission relative to the length of time which is utilized to consider a particular issue. He explained his belief the Commission should be reduced from seven members to five. Chair Borkon expressed concern relative to representation throughout the community, however, she would not have a problem with a five member commission. She stated she would encourage the Council to be aware of community representation. PLANNING COMMISSION WORK SESSION MINUTES MAY 19, 1998 - PAGE 4 Commissioner Bailey felt with the exception of possibly one study session, the Planning Commission has moved along quite well. Chair Borkon felt it might be helpful to change the order of the agenda to move an item up on the agenda in the event there are residents in attendance in response to a particular item. Commissioner Bailey pointed out there would be a greater chance of not having a quorum with a five member commission. Nielsen reported the Council has directed the Planning Commission to review the home occupation ordinance. In addition, the Council would like the Planning Commission to review the lighting of signs and hours of operation for such signs. 4. ADJOURNMENT 0 Collins moved, Anderson seconded adjourning the meeting at 8:58 p.m. Motion passed 510. 0 RESPECTFULLY SUBMITTED Cheryl Wallat Recording Secretary TimeSaver Off -Site Secretarial, Inc. • • CITY OF SHOREWOOD PLANNING COMMISSION MEETING TUESDAY, JUNE 2,1998 MINUTES CALL TO ORDER CITY COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:00 P.M. Lizee moved, Callies seconded appointing Pat Collins as the Pro Tern Chair Person for this meeting in the absence of Chair Borkon. Motion passed 4/1. (Commissioner Collins was the dissenting vote.) Pro Tem Chair Collins called the meeting to order at 7:00 p.m. ROLL CALL • Present: Pro Tern Chair Collins; Commissioners Lizee, Bailey, Callies and Anderson; Planning Director Nielsen; Council Liaison O'Neill. • Absent: Chair Borkon APPROVAL OF MINUTES Planning Commission Minutes - May 19,1998 Callies moved, Anderson seconded approving the Planning Commission Minutes of May 19, 1998, as submitted. Motion passed 4/0. (Commissioner Lizee abstained.) 1. SIMPLE SUBDIVISION • Applicant: Virginia Svoboda and Joe Glaccum Location: 6090 and 6130 Chaska Road • Ms. Svoboda and Mr. Glaccum were in attendance. Commissioner Lizee inquired how this swap would be recorded on the deed to the properties. Nielsen explained the property owners will deed the triangles to each other and they will then be recorded by Hennepin County. Anderson moved, Bailey seconded approving a Simple Subdivision for Virginia Svoboda and Joe Glaccum, 6090 and 6130 Chaska Road, subject to staff recommendations. Motion passed 510. Nielsen explained this matter will come before the City Council for their review and consideration on Monday, June 8, 1998. PLANNING COMMISSION REGULAR MEETING MINUTES JUNE 2,1998 - PAGE 2 2• SIMPLE SUBDIVISION/ LOT COMBINATION Applicant: Minnetonka Moorings, Inc. Location: 600 West Lake Street Mr. John Cross was in attendance on behalf of Minnetonka Moorings, Inc. He pointed out the northerly parcel contains 32 feet rather than 25 feet. Nielsen verified this by referring to the survey of the property. Commissioner Lizee inquired when the lighthouse will be moved. Mr. Cross explained a pad needs to be prepared, however, he would anticipate this work will be completed within the next six weeks. Commissioner Lizee asked whether Mr. Cross could have this work completed by August 1 and he was in agreement with this. Lizee moved to approve a Simple Subdivision/Lot Combination for Minnetonka Moorings, Inc., 600 West Lake Street, noting the northerly right -of -way to be 32 feet rather than 25 • feet, and subject to the lighthouse being moved to the original or an acceptable location by August 1, 1998. Commissioner Callies did not feel it necessary to include a provision relative to the lighthouse. • In the event the lighthouse situation is not corrected, Mr. Cross would be in violation of his Conditional Use Permit. Motion failed for lack of a second. Lizee moved, Bailey seconded approving a Simple Subdivision/Lot Combination for Minnetonka Moorings, Inc., 600 West Lake Street, noting the northerly right -of -way to be 32 feet rather than 25 feet and subject to staff recommendations. Motion passed 510. 3. STUDY SESSION • a. Adult Use Regulations - Draft Zoning Code Text Amendment Nielsen provided the Commission with a Memorandum from Assistant City Attorney an • Greenswig addressing the issue of Conditional Use Permits for Adult Establishments. y Nielsen reported it would be the recommendation of staff to utilize a licensing process and a permitted use rather than a Conditional Use Permit, adding language to the licensing chapter which requires notification within 500 or 1,000 feet. Pro Tem Chair Collins pointed out, as noted by Attorney Greenswig, the Conditional Use Permit process would require public hearings at which the City would be unable to constitutionally respond to many of the public's concerns and requests. PLANNING COMMISSION REGULAR MEETING MINUTES JUNE 2,1998 - PAGE 3 Commissioner Bailey felt a Conditional Use Permit would be inconsistent with the idea of adult uses in that a Conditional Use Permit should not be utilized if it causes a reduction in surrounding property values. Commissioner Callies asked if the issue of notice has been resolved. Nielsen stated he would utilize the notice process which is currently contained in the zoning code. Commissioner Lizee pointed out the notice area has been extended in the past on various projects. Commissioner Callies expressed concern if there is a separate notification requirement. for a parfiettlar tise, this wottid offer an opportunity for a property owner to not reeeive notiee. Anderson moved, Bailey seconded approving permitted use with a licensing process to include the notice requirement consistent with the notification process utilized by the City. Motion passed 4/1. (Commissioner Lizee was the dissenting vote.) • Commissioner Lizee felt a conditional use would show more integrity than a permitted use. b. Home Occupation Regulations - Review Requirements • Commissioner Anderson inquired what type of occupations are being performed. Nielsen noted there are businesses making gift baskets, gun dealers, secretarial services, contractors, computer services as well as a number of Special Home Occupation Permits. Pro Tem Chair Collins inquired whether a person utilizing electronic data in and out of their home would be required to have a permit. Nielsen explained if this work qualifies as a business, a permit would be required. Commissioner Callies commented she would want to control such things as traffic and signage. Nielsen felt the biggest advantage to a Special or Home Occupation Permit would be that the . residents are made aware of the requirements which must be met to operate a home occupation. Commissioner Callies pointed out many residents may not be aware such an ordinance exists. Nielsen suggested it be included once per year in the City newsletter which is delivered to all residences. Nielsen explained staff reviewed the Home Occupation Permits from Minnetonka, Plymouth and Eden Prairie. He felt the benefit to this process to be that when an applicant applies for a permit, a questionnaire is completed and the applicant is made aware of the rules. The applicant must then show to the City how they will comply with the requirements. Commissioner Bailey asked about the purpose in requiring a Limited Home Occupation Permit. Nielsen pointed out use of an outside employee or conducting a business in an accessory building would trigger the need for a Limited Special Home Occupation Permit. Commissioner Bailey stated he would sympathetic to not requiring a permit for a limited home occupation. He would be opposed to a law which would cause someone to be in violation unintentionally. PLANNING COMMISSION REGULAR MEETING MINUTES JUNE 2, 1998 - PAGE 4 Nielsen explained Minnetonka has taken the entire category which encompasses the limited home occupations and made them accessory uses within the residential districts. If a resident is in excess of those requirements, they would then need to apply for a Conditional Use Permit. Pro Tern Chair Collins asked how the City would become aware of violations. Nielsen noted violations are complaint driven. Commissioner Anderson felt it to be intrusive to require a license to do things in your home which you would do for general pleasure purposes as long as it does not violate a neighbor's rights to their property. Commissioner Lizee asked Council Liaison O'Neill about his experience with Home Occupation Permits. He pointed out at one time a substantial number of homes on his block were operating home occupations without a permit. Council Liaison O'Neill stated he would be in favor of utilizing the Minnetonka approach to home occupation permits. Commissioner Anderson felt there may need to be better definitions contained within the ordinance. Commissioner Lizee felt the types of businesses which would be allowed could be better defined. • Nielsen felt the consensus of the Commission to be that a limited permit should be more of an accessory use and that a license or permit would not be required. If the use were to go beyond this, a Conditional Use Permit would be required. A better definition of home occupation should be considered. Commissioner Bailey felt the current Special Home Occupation Permit works quite well and should not be changed. Commissioner Anderson felt there to be a gray line between limited use and special use and some guidance should be given to administrative staff to assist them in determining where that gray line lies. Nielsen noted a distinction between the two has not been a problem in the past. • Commissioner Bailey felt perhaps there would be a way to work in a provision relative to outsiders entering the premises as opposed to working inside the home at different hours. He expressed his agreement in eliminating the requirement of a permit for a limited home occupation. Commissioner Lizee stated she concurs with Commissioner Bailey. She asked whether the Planning Commission should look at the percentage of floor use as defined by the IRS as a possible guideline. Nielsen expressed concern the IRS requires a minimum amount of use and the City would want to limit this.. Nielsen will review this and return to the Commission with some suggestions. Commissioner Callies felt the ordinance could be rewritten so that it is clearer and easier to follow and understand. Commissioner Anderson stated he would like to see the ordinances being used by other cities such as Minnetonka. He felt it to be intrusive to require a license for a limited home occupation. PLANNING COMMISSION REGULAR MEETING MINUTES JUNE 2,1998 - PAGE 5 With respect to signage, Commissioner Callies did not feel it would be offensive to have a small sign indicating "office" for limited home occupations with an office. She would, however, not want to see neon signs. Nielsen felt it important to limit signs in residential areas. He recommended against anything more liberal than is currently permitted in the ordinance. Commissioner Callies commented the City may want to consider permitting a business such as a dentist with a small business in the home. Nielsen stated he will return to the Commission with some proposed changes to the ordinance based upon their input. 4. MATTERS FROM THE FLOOR - None 5. REPORTS • Commissioner Bailey commented on the change in the make up of the Planning Commission and stated he did not feel this change should have been made mid year. Council Liaison O'Neill reported he has a copy of the survey which was just completed and anyone wishing copies may contact him. Nielsen noted the next meeting of the Planning Commission is scheduled for June 16th and will be a study session. Pro Tem Chair Collins invited Commissioner Lizee to the next meeting of the Commission to receive accolades from the Commission for her years of service. He thanked her for her time, service and guidance during his short time on the Commission. Commissioner Lizee stated, "It is better to die on your feet than to live on your knees." • 6. ADJOURNMENT Bailey moved, Anderson seconded adjourning the meeting at 8:24 p.m. Motion passed 510. 0 - RESPECTFULLY SUBMITTED Cheryl Wallat Recording Secretary TimeSaver Off -Site Secretarial, Inc. Note: Corrections to minutes by the Planning Commission are shown as italics for additions and ... _saikeottts for deletions.