Adult-use ordinance protects free expression

Council gives proposed ordinance first reading next Tuesday

By RON LARSEN

Journal Staff Writer

NEW ULM -- The process of regulating adult-use businesses in New Ulm, which started almost a year ago, entered its final stage with a public hearing on a proposed adult-use ordinance by the city's planning commission last week.

With the city council planning to give the ordinance its first reading next Tuesday, the ordinance, which was patterned after a land-use ordinance for regulating adult-use businesses in Mankato, will become law before the end of June.

Even with changes, Assistant City Attorney Susan Nierengarten said, the ordinance can have its first reading so that its second reading and adoption can occur at the council's next meeting, May 20. Then, it's a matter of publishing the ordinance that becomes law 30 days later.

Currently, such businesses are prohibited from setting up shop in New Ulm because of a state-sanctioned moratorium that the City Council first instituted in October 2001. The year-long moratorium was extended for another six months last October. It then was extended for another six months earlier this month.

However, enactment of an adult-use business ordinance would result in the termination of the emergency ordinance carrying the moratorium. As City Attorney Hugh Nierengarten had put it, "You have to let them do business."

New Ulm's city officials were reacting in 2001 to a strip club that set up shop in Nicollet earlier in the year. Because the club sold no alcohol, it was able to slip in under the city's ordinance radar.

Realizing that New Ulm was vulnerable because it too regulated only adult-use businesses that sold alcohol, the council enacted the moratorium and directed its planning commission to come up with a suitable ordinance regulating adult-use businesses whether they sold alcohol or not.

At issue was designing an ordinance that would effectively control such businesses without abridging their First Amendment right to free expression.

However, it quickly became apparent at last week's hearing that there was confusion and/or a desire to legislate such businesses out of existence among commission members and spectators alike.

Hugh Nierengarten told the commission the Mankato ordinance was selected because "it has withstood judicial review."

A major reason, he argued, was that the proposed ordinance is very specific in its definitions. And, in one instance, Nierengarten had included additional definition.

"This ordinance contains all the provisions that constitute the permissible limits in regulating adult use businesses in New Ulm," Nierengarten said.

When asked if the city could enact a "zero tolerance" for these types of businesses, Nierengarten said that was not possible under the Constitution.

However, Ben Thompson of New Ulm told the commission that regulating nudity and freedom of expression were two separate issues.

"To say that an ordinance that outlaws this type of business won't pass Constitutional muster just isn't true. If we don't base our decisions on morality, it's not going to work; it will fall apart," Thompson said.

"I feel you as a board are obligated to commend to the city council that licensing regulations be enacted too. We should make it as tough as possible to put a business in New Ulm," said Joel Schwarz of New Ulm.

"I'm guessing you (the board) share the same views (as the community), and I'm guessing that the community is interested in keeping these businesses out," said Tom Hobt of New Ulm.

"We're very sensitive to the community, but we must look at this objectively. We can only look at land-use issues. We can't address licensing issues because that is a council matter," Chairman Dan Braam replied.

Nierengarten explained the council had made a conscious decision at the beginning to base regulation on land use considerations rather than licensing. However, Community Development Director Dave Schnobrich told the commission that several communities do both, regulate based on land-use and licensing.

Commission members were told they could recommend that the council do both, but it did not pass that recommendation along to the council.

Still, several commissioners wished out loud that these businesses could be barred from New Ulm.

It boiled down to a matter of not being able to legislate morality, Nierengarten said.

"No one would like to see them kept out any more than I would, but it just can't be done legally."