Hamburg IA strip club really a theater (no, I’m serious)

by Gary Taylor

State v. Judy
(Iowa Court of Appeals, February 10, 2010)

The State charged Clarence Judy, owner of a strip club in Hamburg, Iowa, with three counts of public indecent exposure in violation of Iowa Code sections 728.5 (3), (4), and (6)At trial, Judy moved for a judgment of acquittal alleging that his establishment fell into an exemption for “theaters.”   The theater exception reads:

The provisions of this section shall not apply to a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and in which any of the circumstances contained in this section were permitted or allowed as part of such art exhibits or performances. 

 The district court reserved ruling until the close of trial. In its final order, the court sustained Judy’s motion and dismissed the charges against him.

 The State sought a discretionary ruling from the Iowa Supreme Court, seeking an “interpretation of the theater exception in section 728.5.”  The Supreme Court assigned the case to the Iowa Court of Appeals.

The district court required the State to prove its case “that Judy’s place of business was not a theater.” After summarizing the evidence proffered by the State on this element, the court concluded that the State “failed to prove beyond a reasonable doubt that [the strip club] is not a theater.” On appeal, the State frames the issue for review by the courtas “whether a strip club in which the defendant permitted a minor to dance fully nude qualifies as a ‘theater’ exempted under the public decency statute contained in Iowa Code section 728.5.”
The Court of Appeals refused to issue a discretionary ruling, finding that “the issue as framed squarely challenges the sufficiency of the evidence on the theater element.”  In other words, the State was asking the court to make a finding on the facts of the case, not offer an interpretation of the term “theater.” “No useful purpose would be served by reaching the merits of this factual issue.”



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