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.
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.