by Gary Taylor
Relying on Mall Real Estate v. City of Hamburg (blogged here) Story County District Court recently ruled that the Ames “lap dance ordinance” is preempted by state law.
Rebekah Beth Williams and Alijah Blue Allison v City of Ames (PDF)
Story County District Court, November 14, 2014
Dangerous Curves serves alcohol and hires women to dance while wearing bikinis or underwear. In October 2013 an Ames police officer conducted a bar check of Dangerous Curves and observed the defendants performing lap dances while having exposed buttocks. Ames Municipal Code Section 17.31(1) prohibits this activity. It provides
No person appearing as an entertainer on commercial premises subject to an Iowa liquor license or beer permit, or on premises of an ‘adult entertainment business’ … shall fondle, caress or sit on the lap of any customer on said premises if the entertainer presents a performance on the premises while nude or so attired as to leave exposed the entertainer’s ….buttocks….”
The defendants were each issued a citation for violation of Section 17.31. The defendants pled not guilty and filed a motion to dismiss, arguing (1) Iowa Code 728.11 preempts Section 17.31, and (2) Section 17.31 is unconstitutionally vague and overbroad. The motion to dismiss was denied, and the District Associate Judge found the defendants guilty of violating Section 17.31. The defendants appealed to the Iowa District Court for Story County.
Preemption. Iowa Code 728.11 provides
In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials. All such laws, ordinances or regulations shall be or become void, unenforceable and of no effect on January 1, 1978. Nothing in this section shall restrict the zoning authority of cities and counties.
Iowa Code 728.5 regulates public indecent exposure, and specifically provides
1. An owner, manager, or person who exercises direct control over a place of business required to obtain a sales tax permit shall be guilty of a serious misdemeanor under any of the following circumstances:
b. If such person allows or permits the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress.
The District Court noted that in Mall Real Estate v. City of Hamburg the Iowa Supreme Court concluded that the legislature intended to include live nude dancing within the meaning of ‘obscene materials,’ and the effect of Section 728.11, therefore, was to preempt Hamburg’s nude dancing regulations. The defendants asserted that Mall Real Estate makes it clear that Section 17.31 is preempted by the Iowa Code. The City argued, however, that Mall Real Estate only works to apply the Iowa Code to nude dancing performances, while Section 17.31 addresses physical contact. According to the City, “once the dancer touches a customer the dancing is no longer a performance fitting within the definition of ‘obscene material.'” The City then has a governmental interest in protecting the health and safety of its citizens.
The District court sided with the defendants, noting that the performances in question in Mall Real Estate included physical contact between the dancers and customers and, therefore, “the Supreme Court has already determined that a live nude dancing performance, including physical contact with customers, is obscene material under the Iowa Code.” As a result, Section 17.31 regulates obscene material and is expressly preempted by state law.
Vague and overbroad ordinance. Even though the ruling for the defendants on the preemption argument had the effect of ending the controversy, the District Court proceeded to the constitutional question “in the event that this decision is appealed and the Appellate Courts of Iowa take another look at the [Mall Real Estate] case, which was decided by a split court.”
The District Court made quick work of this argument. It first cited a 1977 Iowa Supreme Court case that stated “we find it difficult to believe [the defendant] seriously contends people of common intelligence would not understand the meaning of nudity or would not be able to determine when the ordinance was violated by exposing to public view the breasts, buttocks, or genitals.” Because the term ‘buttocks’ is not vague, requiring the entire buttocks to be covered is not overbroad. “It would be easily discernible to observe whether or not the buttock was covered either partially or fully.”
Based on the preemption determination, the District Court reversed the defendants’ convictions.