In 1990, the US Court of Appeals for the Eighth Circuit upheld “the constitutionality of a City of Minneapolis, Minnesota ordinance which: (1) prohibited the construction, use, design, or operation of a commercial building for the purpose of engaging in, or permitting persons to engage in, sexual activities which include high risk sexual conduct;[Footnote 3] (2) specifically prohibited partitions between subdivisions with apertures designed or constructed to facilitate sexual activities between persons on either side of the partition; and (3) provided that booths or stalls have at least one side open so that the area inside is visible to persons in the adjacent public room if the booth is used to view motion pictures or other forms of entertainment.”
Here is the Court’s reasoning in supporting the city:
…[19] The record before the council included: (1) affidavits by Minneapolis law enforcement officers stating that they had observed mutual masturbation, oral sex, and anal sex in adult bookstore viewing booths (Jt.App. at A.117, A.122-23); (2) support for the proposed ordinance from the Minnesota State Epidemiologist, the Director of Disease Prevention and Control for the Minnesota Department of Health, and the Minnesota Commissioner of Health, (Jt.App. at A.125); (3) scientific articles on the spread of the AIDS virus (Jt.App. at A.131-38, A.163-65); and (4) affidavits submitted by officials from Marion County, Indiana, (Jt.App. at A.155-62).[Footnote 10]
[20] From this record, the council concluded that the design of certain buildings was conducive to the spread of communicable diseases, and that these buildings presented a danger to the persons frequenting such buildings and “to the public health, safety and welfare of the community,” (infra) º 219.500, in general. In so doing, the council took special note of AIDS, due to its irreversible and uniformly fatal nature, and found that it was associated with high risk sexual conduct and of particular danger to persons in the community. To combat the threat posed by such high risk conduct the council enacted the ordinance challenged in this case….
[35] The City must also show that the ordinance is narrowly tailored to the goal of combating the spread of AIDS. The fact that the ordinance must be narrowly tailored does not mean that it must do so through the least-restrictive or least-intrusive means available. The Supreme Court in Ward stated that “the requirement of narrow tailoring is satisfied ‘so long as the…regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'” 109 S. Ct. at 2758 (quoting United States v. Albertini, 472 U.S. 675, 689, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985)). The ordinance easily satisfies this requirement.
[36] To satisfy this requirement, the City must first establish support for its position that high risk activity leads to transmission of the AIDS virus. The United States Surgeon General’s list of high risk behavior that can lead to the spread of the AIDS virus is consistent with the ordinance’s definition of high risk sexual conduct. Understanding AIDS 3 (HHS Publication No. (CDC) HHS-88-8404) (Jt.App. at A.168); see also Surgeon General’s Report on Acquired Immune Deficiency Syndrome 5 (Oct. 22, 1986) (Jt.App. at A.174). Furthermore, the ordinance’s definition is supported by the Minnesota State Epidemiologist, (Jt.App. at A.125), the Director of Disease Prevention & Control for the Minnesota Department of Health, (Jt. App. at A. 125), the Minnesota Commissioner of Health, (Jt.App. at A.125), and the Medical Director of the Hennepin County Sexually Transmitted Disease Clinic, (Motion Hearing on Preliminary Injunction Tr. 111). Accordingly, we are satisfied that the City has established that high risk conduct, as defined by the ordinance, leads to transmission of the AIDS virus.
[37] With this established, the City must show that high risk activity takes place in bookstore viewing booths. Appellants argue that there is insufficient evidence to support such a conclusion. They argue that: (1) the booths are too small; (2) the testimony of Officer Dean Severson of the Minneapolis Police Department is undercut because the Minneapolis Police have been prohibited from opening booths since 1982, and thus any activity seen must have occurred in open booths; (3) Officer Severson’s testimony was incorrect concerning the numbers of arrests made in adult bookstores over the last two years; (4) the single-person rule set in Henningsgard, No. 761468, slip. op., see (supra) note 7, is working; (5) Eve White, a dancer at Alexander’s stores, has never seen two people in an individual booth; and (6) Alexander has a video monitoring system and alarm system to prevent two people from occupying one booth. We have carefully considered these arguments and, in light of the weight of contrary evidence in the record before us, are not persuaded.
[38] The affidavits and testimony of Minneapolis law enforcement officers, health care experts, and appellant Campbell, clearly establish that booths in adult bookstores are used for fellatio and anal intercourse, both deemed high risk sexual activity by the ordinance. Officer Severson testified to seeing hundreds of instances of sodomy, indecent exposure, and prostitution in the booths of adult bookstores over the past six years. (Motion Hearing on Preliminary Injunction Tr. 156-57). Officer Ronald Christianson, also a member of the Minneapolis Police Department, in an affidavit submitted to the council, stated that the booths in the adult bookstores in his precinct were unsanitary and provided opportunities for indecent exposure, oral sex, and anal sex. (Jt.App. at A.122-24).
[39] At trial, Dr. Margaret Simpson, Medical Director of the Hennepin County Sexually Transmitted Disease Clinic, testified that, in the course of her duties, she had counseled hundreds of gay men, and that the clinic, under her guidance, had counseled thousands of gay men. (Motion Hearing on Preliminary Injunction Tr. 111). Based upon her contact with these men, she stated that high risk sexual activity, including oral and anal sex, takes place in adult bookstores and entertainment centers. (Motion Hearing on Preliminary Injunction Tr. 112). Further, she voiced her support for the ordinance as an appropriate attempt to discourage high risk sexual activity. (Motion Hearing on Preliminary Injunction Tr. 115).
[40] Appellant Campbell, who is familiar with the sexual habits of the gay community (Motion Hearing on Preliminary Injunction Tr. 52), provided further insight into the behavior taking place in closed viewing booths. Campbell testified that the booths were “a physical setup that be converted to that use. The bookstore cubicle is best for watching a movie in, but an alternative use is highly possible and frequently seen in my experiences for uncommitted, anonymous pseudo sex.” (Motion Hearing on Preliminary Injunction Tr. 67). Campbell also stated that bookstore sex has a legitimate function in that ” provides people with an opportunity to try it and see if they like it, to try a form of pseudosex to get their toes in the water.” (Motion Hearing on Preliminary Injunction Tr. 82)[Footnote 16] Campbell concluded that the new ordinance would not decrease the number of sexual encounters considered to be high risk, but would only push them into more dangerous situations. (Motion Hearing on Preliminary Injunction Tr. 84).
[41] The net result of this testimony is clear; sexual encounters occur in bookstore booths. (Motion Hearing on Preliminary Injunction Tr. 61-62).[Footnote 17] Further, we are not convinced by appellants’ alternative argument that there has been no evidence presented to show that this behavior also takes place in booths designed for viewing dancing. The health risk results from the booth being closed, not from the material viewed.
[42] Finally, to satisfy the narrow tailoring requirement, the City must show that the ordinance will s
erve to reduce high risk sexual conduct in the bookstore viewing booths. We are satisfied that the ordinance will reduce this behavior in two ways. First, it will discourage high risk activity by exposing the viewing booths to the open view of a public room and, second, if the high risk activity continues in the booths, it will assist law enforcement officials in enforcing public indecency and sodomy laws. Appellants contend that, at best, the ordinance will simply shift the location of high risk activity and could actually increase it by forcing individuals so inclined to go to places where high risk activity would be more likely to occur. Although we recognize that this ordinance cannot by itself prevent the spread of the AIDS virus in Minneapolis, we believe that it will serve to reduce high risk conduct leading to the spread of AIDS. Further, we believe that this is a situation where a “city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” Renton, 475 U.S. at 52 (quoting Young v. American Mini Theatres, 427 U.S. 50, 71, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976) (plurality)).
[43] Therefore, we are satisfied that the City’s interest in public health, specifically fighting the spread of the AIDS virus, would not be achieved as effectively without this ordinance, and thus it is narrowly tailored to serve a significant governmental interest.”
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In 1987, another city in Minnesota, St. Paul, passed its own ordinance so that “no movie arcade, as that term is defined in this chapter, shall have or maintain fully enclosed or concealed viewing areas or booths and to discourage unhealthy or illegal sexual practices among its patrons.” Among the city’s findings:
(1) There are significant public health and safety concerns created by the occurrence of masturbation and sexual acts within enclosed booths.
(2) There is an increased danger to patrons and to employees posed by the presence of body fluids as to which they could come in contact. The danger is the potential for spread of the AIDS virus and the Hepatitis B virus, among others.
(3) The unsanitary condition of the booths as described by the police and by the health division are intolerable in any event.
(4) Existing adult bookstores or movie arcades within the city have private viewing booths wherein adult-oriented videos and movies can be viewed privately. These booths are equipped with doors capable of being locked from the inside.
(5) The viewing booths were reported to be in a filthy condition, with body fluids (semen) on the floors, walls, doors and screens.
(6) In the booths there were messages soliciting all types of sexual activities. These messages, often with telephone numbers or other means of contact, were written on the walls or doors of the booths.
(7) The city council finds and concludes that this ordinance [Ordinance No. 17496] is an effective remedial measure designed to deal directly with the law enforcement and health and safety issues.
Thats not just logic. Thats really senislbe.