Invasion of the Booty Snatchers

Strip clubs win a fight in courts, lose one at lege

In 2002, the Minneapolis Planning Commission amended a local zoning ordinance with a simple goal in mind: to shutter the few remaining strip clubs located outside the city's designated adult-entertainment district. As a practical matter, the move affected just two establishments—BJ's Lounge on West Broadway, and the 22nd Avenue Station, located across the river in Northeast. In the ensuing legal scrum, BJ's agreed to discontinue topless dancing by the end of this year. But the 22nd Avenue Station decided to fight back, arguing that the city's position was predicated on unfair assumptions and lousy studies.

Well, score one for the Double Deuce, as the 22nd Avenue Station is known to patrons.

Late last month, U.S. District Court Judge Michael Davis issued a preliminary injunction allowing the booty-shaking at the Deuce to continue unabated until the legality of the ordinance is decided. And from the tone of Davis's 19-page decision, the Deuce looks to be in less jeopardy than the related provision of the city's zoning code. As the judge put it, the club had raised "serious doubt as to whether the 2002 ordinance will pass constitutional muster."

Like many strip club opponents, the city Planning Commission relied on studies touting the "adverse secondary effects" adult establishments allegedly have on neighborhoods. In a nutshell, the secondary-effects doctrine holds that government has a legitimate interest in regulating strip clubs because they promote blight. For some three decades, that principle has been the tool of choice for government officials frustrated by the industry's successful use of the free speech defense.

Randall Tigue, an attorney who represents the Double Deuce, says the adverse secondary-effects tactic has often carried the day in legal fights. But, he adds, it is also vulnerable to legal challenge for one reason: Those adverse effects don't actually exist. "The notion that adult entertainment causes crime is a lie," says Tigue. "The secondary effects are just myths."

In the case of Double Deuce, at least, the evidence appears to support Tigue's contention. According to an affidavit prepared by urban planner R. Bruce McLaughlin, for instance, the club averaged significantly fewer calls for police service over a three-year period than two neighboring bars, a nearby liquor store, and even one nearby residence. McLaughlin also found no discernible effects on property valuation related to the presence of the club.

In his ruling, Judge Davis noted that the city failed to provide any meaningful rebuttal to McLaughlin's findings. And "although the City was not required to conduct its own empirical studies before passing the 2002 ordinance," Davis wrote, "it cannot rely on shoddy, irrelevant studies to justify its passage." In Davis's view, the club established "grave doubt on the reliability" of the studies most often cited.

The arguments in the case of the 22nd Avenue Station vs. the City of Minneapolis will likely be reprised in other Minnesota courts in the near future, thanks to a bill introduced in the Legislature by State Sen. Steve Dille. A Republican from Dassel, Dille drafted the measure in the hopes of making it much more difficult to open or operate strip clubs in outstate Minnesota.

If signed into law by Gov. Tim Pawlenty, Dille's proposal will limit the hours of operation for strip clubs from 10:00 a.m. to 10:00 p.m. Just as significantly, it will relieve municipalities from the obligation to make zoning provisions for strip clubs if there is another such business located within 50 miles. For good measure, the bill prohibits strip clubs from opening within 500 feet of a residential property or within a half-mile of a school or place of worship. The restrictions are designed with one aim: to make the strip clubs, in his words, "go away."

Dille says he was moved to introduce the legislation—modeled after a law in Delaware—after two strip clubs opened in small towns in his district. "For these little towns, it's very troublesome to have these kinds of businesses," Dille offers. "The nearby residents are concerned about decreased property values. They talk about condoms being thrown in their lawns, people hanging around until all hours of the morning. It's just a general disruption of their lives."

In his legislation, Dille cites the core tenets of the adverse secondary-effects doctrine. And Dille says there is plenty of evidence for such contentions. "I've been able to find at least 11 studies that have shown the adverse effects of these types of businesses," he says. He explicitly cites two studies conducted in Minnesota—one from St. Paul in 1978, one from Minneapolis in 1980—along with a report issued by former Attorney General Skip Humphrey in 1989.

Dan Linz, a professor at the University of California Santa Barbara who has researched adverse-effects claims for a quarter-century, is dismissive of the attorney general's report, which he says "grossly mischaracterized" the findings in Minneapolis and St. Paul. For instance, he points out, the 1978 St. Paul study states "no fewer than 14 times" that sexually oriented businesses do not cause negative effects.

"There is always this struggle between what we as social scientists find and what legislators will rely on in order to substantiate their political or moral views," Linz oberves. "And very often government officials trot out these studies without having even read them."

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