Court blocks city attempt to ban topless dancing at NE bar


The topless dancers at 22nd Avenue Station, at 22nd and University avenues in Northeast Minneapolis, have won another reprieve in the city’s efforts to be sure that what it calls “adult entertainment” is confined to the downtown business district.

Last week, Federal District Court Judge Michael Davis issued a preliminary injunction barring the City of Minneapolis from enforcing the adult-entertainment portion of its zoning ordinance against 22nd Avenue Station. This means the establishment is free to operate while the court case continues. The bar sued the city in federal court earlier this year, claiming that the city’s rules don’t pass constitutional muster.

The city’s 1992 zoning ordinance made adult entertainment a nonconforming use in areas other than downtown, but did not create a procedure for stopping adult entertainment in the nonconforming businesses. In 2002, the ordinance was amended to require that the adult entertainment end before May 1, 2003, unless the city granted extensions.
Since 2002, bar owner Glenn Peterson has had a waiver from the city ordinance that outlaws adult entertainment anywhere but downtown. Last year, however, administrative law judge Steve Mihalchick advised the council not to give 22nd Avenue Station any more extensions. The City Council concurred, and the court challenge began.

The only other business the ordinance affects, BJ’s on West Broadway in North Minneapolis, made an agreement with the city to end its topless dancing at the end of this year.

“At this stage in the proceedings,” Davis wrote, “the Court does not conclusively decide whether or not the 2002 ordinance is constitutional. However, Plaintiff has raised serious doubt as to whether the 2002 ordinance will pass constitutional muster.”

The bar has featured topless dancers since 1984. Peterson brought them in when the bar was in financial trouble; he said (according to a Minneapolis city attorney’s report) that the dancers brought in more business than other types of entertainment he’d tried and were, in fact, the only thing keeping him out of bankruptcy.

(There is no cover charge at the 22nd Avenue Station, and Peterson doesn’t pay the dancers; they work only for tips.)

In a memorandum that accompanied the preliminary injunction, Davis wrote, “Although the City presents an important interest in enforcing its zoning code to protect the welfare of its citizens…the risk of irreparable harm to Plaintiff [22nd Avenue Station] is great—it faces the extinction of its business and suppression of its protected expression; Plaintiff has raised a serious question regarding the constitutionality of the 2002 ordinance; Plaintiff has existed as a nonconforming use at its current location for over a decade; and the City presents no evidence that a short delay in enforcing the zoning ordinance will cause particular harm at this point in time.”

The City’s 2002 ordinance is based in part on a theory that establishments such as 22nd Avenue Station and BJ’s create “harmful secondary effects” in their neighborhoods. Cities that want to restrict adult entertainment can use that assumption to build their cases, unless an establishment can cast substantial doubt on the assumption. If that happens, then it’s up to the city to prove that the harmful secondary effects have happened.

In this case, Davis wrote, 22nd Avenue Station had the better evidence. “Plaintiff’s submissions tend to show that all local evidence regarding the continued existence of BJ’s and 22nd Avenue Station demonstrate no harmful secondary effects. The City has presented no contradictory evidence whatsoever regarding their effects on the neighborhood, despite the fact that both establishments have existed in their current locations for decades….”
Assistant City Attorney Erik Nilsson, who represented the City in earlier hearings before an administrative law judge, declined to comment on the preliminary injunction because he is not representing the city in this proceeding. The attorneys who represent the city, James Moore and Franklin Reed of the City Attorney office, could not be reached for comment.
Longtime Twin Cities civil liberties attorney Randall Tigue represented 22nd Avenue Station. He said they will now have a pretrial conference which will produce a scheduling order for the upcoming trial.

He said the city will have a chance to show evidence of adverse secondary effects from the adult entertainment, but “they simply can’t do it. There is no such evidence.”

To avoid a trial, Tigue said, the City could repeal the ordinance that calls for closing adult-entertainment businesses outside of downtown, “or agree to allow the establishment to remain.” He said that if the case goes to trial and 22nd Avenue Station wins, the City will have to pay the legal costs of the case. If the case is settled, the City wouldn’t have to pay those costs.
The city, he said, could also appeal the preliminary injunction to the 8th Circuit Court of Appeals. “It is an appealable order,” he said, and the city would “have 30 days from April 25” to appeal it.

Tigue emphasized that the entertainment at 22nd Avenue Station has never gone away. “It’s up and running, and will likely be up and running for the foreseeable future. People see the news, and think it’s closed. It’s not closed, and it never has been.”