Mall Real Estate, L.L.C., an Iowa Limited Liability Company v. City of Hamburg, an Iowa Municipal Corporation , 818 N.W.2d 190 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 10–0898
Filed July 27, 2012
MALL REAL ESTATE, L.L.C.,
an Iowa Limited Liability Company,
Appellant,
vs.
CITY OF HAMBURG, an Iowa
Municipal Corporation,
Appellee.
Appeal from the Iowa District Court for Fremont County, Greg W.
Steensland, Judge.
An establishment appeals an order denying its request for an
injunction enjoining a city from enforcing an ordinance regulating nude
dancing. REVERSED AND REMANDED WITH INSTRUCTIONS.
W. Andrew McCullough, Midvale, Utah, and Brian B. Vakulskas
and Daniel P. Vakulskas of Vakulskas Law Firm, Sioux City, for
appellant.
Raymond R. Aranza of Scheldrup Blades Schrock Smith Aranza,
P.C., Cedar Rapids, for appellee.
2
WIGGINS, Justice.
The operator of an establishment offering nude and seminude
dance performances sought an injunction restraining a city from
enforcing its ordinance regulating nude and seminude dancing. The
district court found that state law did not preempt the ordinance and
that the ordinance was constitutional. On appeal, we find that state law
preempts enforcement of the ordinance and that it is unenforceable
against the establishment. Accordingly, we reverse the judgment of the
district court and remand the case with instructions to the court to enter
an order enjoining the city from enforcing its ordinance against the
establishment.
I. Background Facts and Proceedings.
On December 8, 2008, the Hamburg city council passed chapter
48 of its city code. The ordinance, known as the “Sexually Oriented
Business Ordinance,” contains provisions relating to licensing and
zoning and imposes a range of regulations upon sexually oriented
businesses. The stated purpose of the ordinance is to “regulate sexually
oriented businesses in order to promote the health, safety, morals, and
general welfare of the citizens of the City, and to establish reasonable
and uniform regulations to prevent the deleterious secondary effects of
sexually oriented businesses.” Hamburg, Iowa, Code § 48.010.01 (Dec.
8, 2008). The ordinance also states, “[I]t is neither the intent nor effect of
this ordinance to restrict or deny access by adults to sexually oriented
materials protected by the First Amendment to the Constitution of the
United States of America . . . .” Id.
Businesses subject to the terms of the ordinance include adult
cabarets, which the ordinance defines, among other things, as any
“business or entity that is with the emphasis on observation or viewing of
3
nude or semi-nude performances whether the performers receive
compensation or not, that regularly features persons who appear nude or
semi-nude.” 1 Id. §§ 48.020.02, .030. The ordinance requires a sexually
oriented business to have a valid sexually oriented business license and
an employee of a sexually oriented business to have a valid sexually
oriented business employee license. Id. § 48.040.01–.02. Further, the
ordinance regulates many aspects and activities of sexually oriented
businesses, including the consumption of alcohol on the premises,
exterior portions of the businesses, signage, hours of operation, the
exhibition of sexually explicit films, live nudity, and siting. See id.
§§ 48.085–.087, .130–.150, .180, .200.
For example, the ordinance prohibits the possession or
consumption of alcoholic beverages by any person on the premises of a
sexually oriented business. Id. § 48.085. The ordinance also prohibits
any person from intentionally or knowingly appearing in a state of nudity
1The ordinance also classifies adult bookstores, adult novelty stores, adult video
stores, adult motels, adult motion pictures theaters, and seminude model studios as
sexually oriented businesses. Hamburg, Iowa, Code § 48.030 (Dec. 8, 2008). Further,
the ordinance defines “nudity or a state of nudity” as:
The showing of the human male or female genitals, pubic area, vulva,
anus, anal cleft, or cleavage with less than a fully opaque covering, or the
showing of the female breast with less than a fully opaque covering of
any part of the nipple and areola.
Id. § 48.020.14. Finally, the ordinance defines “semi-nude or state of semi-nudity” as:
A state of dress in which opaque clothing covers no more than the
genitals, anus, anal cleft, cleavage, pubic area, vulva, as well as the
nipple and areola of the female breast, as well as portions of the body
covered by supporting straps or devices. This definition shall not include
any portion of the cleavage of the human female breast exhibited by a
dress, blouse, skirt, leotard, bathing suit, or other wearing apparel
provided that the areola and nipple are not exposed in whole or in part.
Id. § 48.020.18.
4
or from intentionally or knowingly violating Iowa Code section 728.5.2
Id. § 48.180.01. Similarly, the ordinance contains requirements that
seminude employees remain more than six feet away from customers and
on a stage at least two-feet high. 3 Id. § 48.180.02. It also prohibits the
exchange of gratuities between customers and seminude employees and
prohibits intentional contact between customers and seminude
employees. Id. § 48.180.03, .04. Moreover, it restricts the size, number,
and shape of a sexually oriented business’s signage, places restrictions
on the content of such signs, and regulates the font and color scheme of
such signs. Id. § 48.087.
The City imputes violations of the ordinance to the sexually
oriented business licensee. Id. § 48.190. If a sexually oriented business
licensee violates the ordinance or knowingly allows an employee to
violate the ordinance, then the City may suspend the license of the
business and the employee. Id. § 48.090. The ordinance also provides
for the revocation of a sexually oriented business license. For example,
the City may revoke a sexually oriented business license for activity on
the premises related to controlled substances, alcohol, prostitution, acts
of specified sexual activity, conduct negatively affecting the health,
safety, or welfare of the citizens of Hamburg, or conduct otherwise in
violation of the ordinance. Id. § 48.100.
Clarence Judy and Terry Rutledge own Mall Real Estate. Mall Real
Estate leases space located at 701 Main Street in Hamburg to the
2Iowa Code section 728.5 prohibits total nudity in places of business required to
obtain a sales tax permit. Iowa Code § 728.5 (2009). The Eighth Circuit Court of
Appeals held section 728.5 does not violate the First Amendment to the United States
Constitution. See Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998).
3The ordinance’s definition of “employee” includes performers. Hamburg, Iowa,
Code § 48.020.11.
5
Hamburg Theatre for the Performing Arts, which has been open for nine
years and is also known as Shotgun Geniez. Mall Real Estate operates
the parking lots surrounding the Hamburg Theatre. Persons who wish to
enter the Hamburg Theatre must pay an individual parking fee to Mall
Real Estate. Performers at the Hamburg Theatre perform nude,
seminude, and fully clothed. At times during performances, performers
physically contact customers, often by sitting in their laps. The
performers also spend time talking to customers. The Hamburg Theatre
does not have a liquor license or sell alcohol, but it does allow customers
to supply their own alcohol. Judy believes the customers at the
Hamburg Theatre come to see nude dancing, get lap dances, and
converse with the performers.
Judy testified the Hamburg Theatre does its best to ensure the
customers and performers comply with the law. He further testified the
Hamburg Theatre does its best to ensure minors do not enter. Hamburg
Theatre employees have caught minors attempting to enter the club and
turned them away. The Hamburg Theatre gives customers younger than
twenty-one years old but older than eighteen years old a glow-in-the-dark
wristband to signify they are not permitted to consume alcohol. Further,
club employees keep watch to make sure no one with a wristband
consumes alcohol. Performers must provide identification proving their
age, but are otherwise free to perform in whatever manner they wish
provided they comply with any applicable laws while in the Hamburg
Theatre.
Judy estimates in excess of 112,000 customers have been to the
Hamburg Theatre during the past nine years. The Hamburg Theatre has
never been cited by police for unsightly litter, and no one in the club has
been cited for engaging in sex acts on the premises or for purchasing or
6
selling drugs. However, on one occasion the police cited a minor as a
minor in possession of alcohol at the club. In addition, a seventeen-year-
old once danced on stage, but the Hamburg Theatre was acquitted of any
wrongdoing. There was also one case of alleged prostitution, which was
dismissed. Seven or eight incidents involving the club have resulted in
police reports. In defense of the Hamburg Theatre, Judy constructed a
list of all calls to police that had been made within 1000 feet of the
business since 2002, noting that only a few actually pertained to the
Hamburg Theatre.
Shortly after the City adopted the ordinance, Mall Real Estate filed
a petition seeking a declaratory judgment declaring that the City’s
ordinance does not affect or apply to the Hamburg Theatre and that the
ordinance is unconstitutional. Mall Real Estate further requested a
temporary injunction restraining Hamburg from enforcing the ordinance
against the Hamburg Theatre.
The district court denied Mall Real Estate’s request for declaratory
and injunctive relief, holding the ordinance affected and applied to the
Hamburg Theatre and was constitutional. Mall Real Estate filed a notice
of appeal. The district court stayed enforcement of the ordinance
pending the outcome of this appeal. On appeal, Mall Real Estate argues
the ordinance does not apply to the Hamburg Theatre, conflicts with
state law, and violates the Iowa Constitution. Mall Real Estate bases its
preemption argument on its assertion that the Hamburg Theatre is a
theater for the purposes of Iowa Code section 728.5 (2009). 4 The City
asserts it may pass valid zoning and licensing regulations. At trial, the
parties agreed the sections of the ordinance relating to zoning would not
4All references to the Iowa Code are to the 2009 Code unless otherwise noted.
7
affect Mall Real Estate because the Hamburg Theatre preexisted the
ordinance. Therefore, we have no reason to consider any part of the
ordinance related to zoning.
II. Issues.
Because the issue of whether state law preempts the City’s
ordinance is dispositive of this appeal, we need not reach the
constitutional issues raised.
III. Scope of Review.
We review whether state law preempts a municipal ordinance for
correction of errors of law because it is a question of statutory
construction. Hensler v. City of Davenport, 790 N.W.2d 569, 578 (Iowa
2010).
IV. Whether the Iowa Code Preempts the Hamburg Ordinance.
Mall Real Estate asserts the Hamburg ordinance conflicts with
state law because section 728.5 contains a theater exception and the
Hamburg ordinance does not. Mall Real Estate bases this argument on
two other district court decisions that the district court distinguished as
dealing with different statutes under different facts and circumstances.
The City responds by arguing section 728.11 allows local governments to
pass ordinances related to zoning and licensing of such businesses.
Section 728.5 exempts theaters from the statewide ban of public
nudity. See Iowa Code § 728.5. Section 728.11 contains a uniform
application provision. It 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
8
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.
Id. § 728.11.
In construing statutes, our goal is to ascertain legislative intent.
Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). In
doing so, we consider the language the general assembly used in the
statute, the object the general assembly sought to accomplish, and the
wrong the general assembly sought to remedy. Swainston v. Am. Family
Mut. Ins. Co., 774 N.W.2d 478, 482 (Iowa 2009). When the general
assembly places preemption language in more than one relevant section
of the chapter, we must consider both sections together in order to
ascertain the general assembly’s intent. See Feld v. Borkowski, 790
N.W.2d 72, 83–85 (Iowa 2010) (Appel, J., concurring in part and
dissenting in part) (explaining that we may examine an issue that is
inextricably intertwined with another issue). Here, the general assembly
has placed preemption language in sections 728.5 and 728.11. See Iowa
Code §§ 728.5 (excepting theaters from the provisions of this section), .11
(stating chapter 728 shall be the sole regulation of obscene material in
the state). Therefore, we must look at these statutes together to
determine whether state law preempts the Hamburg ordinance.
The Iowa Constitution was amended in 1968 to provide municipal
governments with limited powers of legislative home rule. Iowa Const.
art. III, § 38A. The home rule amendment provides:
Municipal corporations are granted home rule power
and authority, not inconsistent with the laws of the general
assembly, to determine their local affairs and government,
except that they shall not have power to levy any tax unless
expressly authorized by the general assembly.
The rule or proposition of law that a municipal
corporation possesses and can exercise only those powers
9
granted in express words is not a part of the law of this
state.
Id. “The purpose of the home rule amendment was to give local
government the power to pass legislation over its local affairs subject to
the superior authority of the legislature.” Hensler, 790 N.W.2d at 584.
Thus, “[u]nder legislative home rule, the legislature retains the unfettered
power to prohibit a municipality from exercising police powers, even over
matters traditionally thought to involve local affairs.” City of Davenport v.
Seymour, 755 N.W.2d 533, 538 (Iowa 2008).
Courts have developed the doctrine of preemption to determine
whether the legislature permits or prohibits municipal action. Id. Under
the doctrine, municipalities generally cannot act if the legislature has
directed otherwise. Id. A municipality, however, may set standards
“more stringent than those imposed by state law, unless a state law
provides otherwise.” Iowa Code § 364.3(3); Sioux City Police Officers’
Ass’n v. City of Sioux City, 495 N.W.2d 687, 693 (Iowa 1993).
Nevertheless, “legislative power trumps the power of local authorities”
when the legislature exercises its power. Seymour, 755 N.W.2d at 538.
We have recognized express preemption, implied conflict preemption, and
implied field preemption. Hensler, 790 N.W.2d at 585.
We believe the Iowa Code expressly preempts the City from fully
enforcing its ordinance. “Express preemption applies when the
legislature has explicitly prohibited local action in a given area.” Id.
Express preemption is consistent with the notion that “ ‘[l]imitations on a
municipality’s power over local affairs are not implied; they must be
imposed by the legislature.’ ” Seymour, 755 N.W.2d at 538 (quoting City
of Des Moines v. Gruen, 457 N.W.2d 340, 343 (Iowa 1990)).
10
We have previously construed section 728.11 to mean that chapter
728 expressly prohibits a municipality from enacting an ordinance
regulating obscenity. In Chelsea Theater Corp. v. City of Burlington, 258
N.W.2d 372 (1977), we examined a 1975 Burlington ordinance “defining
and prohibiting the sale and distribution of obscene material and public
displays of explicit sexual material.” 258 N.W.2d at 373. In response to
the enactment of this ordinance, an “adult” movie theater operator
brought an action against the city to enjoin the enforcement of the
ordinance. Id. The movie theater asked us to determine whether section
728.11’s predecessor, Iowa Code section 725.9 (1975), preempted the city
from enacting an ordinance regulating material that is regulated by the
state. Id. Burlington contended section 725.9 only preempted the city
from enacting an ordinance regulating the dissemination of obscene
materials to minors. Id.
After looking at the legislative history of section 725.9, we
determined section 725.9 was not limited to the dissemination of obscene
materials to minors and instead restricted governmental subdivisions
from enacting any local ordinances regulating conduct covered in chapter
725, now chapter 728. Id. at 374. The United States Supreme Court
had come to the same conclusion when reviewing a conviction from the
United States District Court for the Southern District of Iowa for a
violation of a federal statute prohibiting the mailing of obscene materials.
See Smith v. United States, 431 U.S. 291, 293–95, 97 S. Ct. 1756, 1760–
61, 52 L. Ed. 2d 324, 331–32 (1977) (holding section 728.11’s
predecessor, section 725.9, preempted all local regulation of obscene
materials and was not restricted in application to the dissemination of
obscene materials to minors). Accordingly, in Chelsea Theater, we held
11
the Burlington obscenity ordinance was irreconcilable with section 725.9
and thus preempted by state law. 258 N.W.2d at 374.
Thus, the scope of section 728.11 is broad. Since our decision in
Chelsea Theater, the general assembly has kept section 728.11 intact.
Section 728.11 continues to provide for the uniform application of the
provisions of chapter 728 relating to materials covered by chapter 728.
By its terms, section 728.11 prohibits local governments from regulating
obscene material or the availability of obscene material. The parties did
not argue nor do we find a reason to overrule our decision in Chelsea
Theater. Moreover, the general assembly has chosen not to overrule
Chelsea Theater. When an interpretation by the court is left undisturbed
by the general assembly for a substantial period, we have to presume the
general assembly agreed with the court’s interpretation. Chi. Cent. &
Pac. R.R. v. Calhoun Cnty. Bd. of Supervisors, 816 N.W.2d 367, 374 (Iowa
2012). Therefore, it is quite evident the Iowa Code preempts any local
regulation of obscene materials. Accordingly, to the extent the Hamburg
ordinance regulates obscene material, it is preempted by state law.
The Hamburg ordinance does not hide its intent to regulate
obscene material. It states, “[I]t is neither the intent nor effect of this
ordinance to restrict or deny access by adults to sexually oriented
materials protected by the First Amendment to the Constitution of the
United States of America.” Hamburg, Iowa, Code § 48.010.01. Because
the ordinance does not seek to regulate materials protected by the First
Amendment, it must necessarily regulate unprotected material. The
category of unprotected speech involved here is obscenity. See Miller v.
California, 413 U.S. 15, 23, 93 S. Ct. 2607, 2614, 37 L. Ed. 2d 419, 430
(1973) (“This much has been categorically settled by the Court, that
obscene material is unprotected by the First Amendment.”).
12
The inquiry now turns to whether the general assembly intended
section 728.11 to apply to live nude dancing. The City does not argue in
its brief that live nude dancing is outside the scope of section 728.11.
Instead, the City’s sole argument is that section 728.11 allows the City to
issue licenses and permits to persons engaged in activity otherwise
covered by the statute. We disagree. The plain language of section
728.11 makes clear that section 728.11 prohibits municipalities,
counties, or other governmental units from enacting laws, ordinances, or
regulations concerning materials regulated under chapter 728. Section
728.11 goes further and states that all such laws, ordinances, or
regulations are void or unenforceable and have no effect. The plain
language of section 728.11 also creates an exception for a local
government’s zoning authority, not for its licensing or permitting
authority. Accordingly, unless a local ordinance is a zoning ordinance, it
is preempted to the extent it regulates material regulated by chapter 728.
See Estate of Ryan v. Heritage Trails Assocs., Inc., 745 N.W.2d 724, 730
(Iowa 2008) (“When the statute’s language is plain and its meaning is
clear, we look no further.”). The parties and the district court recognized
this when the parties agreed and the district court ruled that any part of
the ordinance pertaining to zoning would be unaffected by this lawsuit.
Even though the City does not argue that section 728.11 does not
apply to live nude dancing, we must reach this issue because the
outcome of this case hinges on the applicability of section 728.11 and its
interaction with section 728.5. See Feld, 790 N.W.2d at 85 (Appel, J.,
concurring in part and dissenting in part).
We believe the general assembly intended section 728.11 to apply
to live nude dancing. At the time of our decision in Chelsea Theater, the
Iowa Code did not contain any provisions specifically regulating the
13
showing of “adult” movies or nude dancing. See Iowa Code ch. 725
(1975). The general assembly began regulating nude dancing and “adult”
movie theaters around the time of our decision in Chelsea Theater. See
1976 Iowa Acts ch. 1245(1), § 2505 (codified at Iowa Code § 728.5 (Supp.
1977)). The general assembly made it a serious misdemeanor for an
owner, manager, or person who exercised direct control over a business
holding a liquor license or beer permit to allow nudity or display motion
pictures depicting sex acts or nudity in a licensed premise. Id. The
statute carved out an exception for theaters and performing arts venues
if the displayed nudity or sex act was part of the performance. Id.
After our decision in Chelsea Theater and prior to the passage of
the Hamburg ordinance, the general assembly passed three bills
amending section 728.5. In 1978, the general assembly made the
advertisement of any activity prohibited by the statute a serious
misdemeanor. 1978 Iowa Acts ch. 1068, § 6 (codified at Iowa Code
§ 728.5(6) (1979)). In 1992, the general assembly amended the statute to
criminalize live sex acts by minors. 1992 Iowa Acts ch. 1029, § 1
(codified at Iowa Code § 728.5(7) (1993)).
In 1997, the general assembly expanded the scope of persons who
could be found guilty of a serious misdemeanor from an owner, manager,
or person who exercises direct control over a business holding a liquor
license or beer permit to an owner, manager, or person who exercises
direct control over a business requiring a sales tax permit. 1997 Iowa
Acts ch. 125, § 3 (codified at Iowa Code § 728.5 (Supp. 1997)). The
amendment also stopped regulating the display of motion pictures
depicting sex acts or nudity. Id. The amendment, however, maintained
the exception for theaters. Id. Section 728.5 remained unchanged from
14
this amendment to the time Hamburg passed its ordinance in 2008. 5 It
prohibits actual or simulated sex acts and nudity in certain
establishments. Iowa Code § 728.5.
These amendments make three important facts clear. First, since
section 728.5 first went into effect in 1977, a provision regulating nude
dancing has always been part of the obscenity chapter of the Iowa Code.
Second, the general assembly has amended the provision regulating
nude dancing three times since its enactment and never removed it from
the obscenity chapter of the Iowa Code. Third, in regulating nude
dancing, the general assembly has continued to exempt theaters. The
City does not contend that Mall Real Estate does not operate a theater.
Nonetheless, an argument can be made that the general assembly
did not intend section 728.11 to apply to live nude dancing because of
the definition of “material” in chapter 728. Section 728.1(3) defines
“material” as the following:
[A]ny book, magazine, newspaper or other printed or written
material or any picture, drawing, photograph, motion
picture, or other pictorial representation or any statue or
other figure, or any recording, transcription or mechanical,
chemical or electrical reproduction or any other articles,
equipment, machines or materials.
Iowa Code § 728.1(3). We acknowledge the commentators who have
opined the restriction on local government regulation of obscenity does
not appear to apply to live performances because the definition of
“material” in section 728.1(3) does not appear to include live
performances. See 4 John L. Yeager & Ronald L. Carlson, Iowa Practice:
5In 2010, the general assembly amended the statute again. See 2010 Iowa Acts
ch. 1078, § 2 (codified at Iowa Code § 728.5 (2011)). This amendment renumbered the
subsections of section 728.5 and made the theater exception inapplicable to certain
portions of the statute. See id.
15
Criminal Law and Procedure § 640, at 159–60 (1979). However, these
same commentators also acknowledge it was the general assembly’s
intent to regulate live performances and believe the failure of the general
assembly to include live performances in the definition of “material” in
section 728.1(3) “was in all probability an oversight.” Id. § 631, at 156.
We agree that the general assembly intended to regulate live
performances as part of the “material” regulated by chapter 728.
However, for the reasons explained below we disagree with these
commentators’ opinion that the definition of “material” does not include
live performances.
It is not unusual for an obscenity statute to explicitly include live
performances within the scope of the term “material” or “materials.” See,
e.g., Waterman v. Farmer, 84 F. Supp. 2d 579, 580–81 (D.N.J. 2000)
(interpreting a New Jersey statute that included live performances in the
definition of “sexually oriented material”); State v. Sorabella, 891 A.2d
897, 930 (Conn. 2006) (interpreting a statute defining “child
pornography” as “any material involving a live performance or
photographic or other visual reproduction of a live performance which
depicts a minor in a prohibited sexual act”); Ferrari v. Commonwealth,
859 N.E.2d 808, 810 & n.6 (Mass. 2007) (noting the definition of “matter”
includes live performances for the purposes of a criminal statute
prohibiting the dissemination of certain material to minors); State v.
Foglia, 440 A.2d 16, 16 (N.J. Super. Ct. App. Div. 1981) (interpreting a
statute criminalizing the sale of obscene material to minors where the
definition of “obscene material” included “live performance”); State v.
Bahl, 193 P.3d 678, 689 n.8 (Wash. 2008) (en banc) (noting the statutory
definition of “erotic materials” includes live performances). Although
Iowa Code section 728.1(3) does not specifically mention “live
16
performances,” it is clear from the above cases that the term “material” is
often defined to include live performances, particularly when the term is
used in an obscenity statute. The question becomes whether the phrase
“or any other . . . materials” in Iowa Code section 728.1(3) should be
interpreted to include live performances even though the legislature did
not explicitly mention live performances.
In order to go outside of the plain language of section 728.1(3), we
must find an ambiguity in the statute. See Estate of Ryan, 745 N.W.2d
at 730. To determine whether a statute is ambiguous, we apply the
following rules:
A statute is ambiguous if reasonable minds could differ or be
uncertain as to the meaning of the statute. Ambiguity may
arise from specific language used in a statute or when the
provision at issue is considered in the context of the entire
statute or related statutes.
Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 424–25
(Iowa 2010) (citations and internal quotation marks omitted). We also
interpret statutes in such a way that portions of it do not become
redundant or irrelevant. State v. Gonzalez, 718 N.W.2d 304, 308 (Iowa
2006). Additionally, we do not place undue importance on any single or
isolated portion, but instead consider all parts of an enactment together.
Swainston, 774 N.W.2d at 482. The general assembly did not enact
section 728.1 in isolation, but rather as one piece of the legislation that
contained the original provisions of chapter 728. See 1976 Iowa Acts ch.
1245(1), §§ 2505, 2801–10 (codified at Iowa Code ch. 728 (Supp. 1977)).
On its face, section 728.1(3)’s definition is recursive. A defining
term of “material” is “or any other . . . materials.” A recognized definition
of “material” is “a performer’s repertoire.” Merriam-Webster’s Collegiate
Dictionary 765 (11th ed. 2005). This definition would include live
17
performances, including nude and seminude dancing. However, one
could also reasonably conclude “material” refers to inanimate objects,
such as a table or book. Thus, reasonable minds could differ as to the
meaning of “materials” when it is used to define the term “material.”
Ordinarily, we would apply the “canon of construction noscitur a sociis,
which summarizes the rule of both language and law that the meanings
of particular words may be indicated or controlled by associated words.”
Peak v. Adams, 799 N.W.2d 535, 547 (Iowa 2011) (citation and internal
quotation marks omitted). Applying this canon, we would examine the
longer phrase: “or any other articles, equipment, machines or materials.”
Application of this canon could lead one to conclude that the defining
term “materials” must refer to inanimate objects. However, we cannot
apply this canon if its application thwarts legislative intent or makes the
general words meaningless. 2A Norman J. Singer & J.D. Shambie
Singer, Statutes and Statutory Construction § 47:16, at 355 (7th ed.
2007); accord Wright v. State Bd. of Eng’g Exam’rs, 250 N.W.2d 412, 414
(Iowa 1977). For several reasons, we believe this is one of those
occasions when the canon is not applicable.
First, application of the canon would lead to an absurd result that
would thwart the legislative intent. See Harden v. State, 434 N.W.2d
881, 884 (Iowa 1989) (“We seek a reasonable interpretation that will best
effect the purpose of the statute and avoid an absurd result.”). In
chapter 728, the general assembly prohibited any person from
disseminating obscene material to minors. See Iowa Code § 728.2. One
of the practical effects of this limitation is that it prohibits the operator of
an adult movie theater displaying films containing obscene sex acts from
displaying such films to a minor. Indeed, the movie theater operator is
prohibited from even admitting a minor to the premises. Id. § 728.3.
18
However, if we did not construe “material” to include live performances,
then that same minor could view the same obscene sex act live in an
establishment falling under the theater exception of section 728.5. We
find it hard to believe the general assembly intended to permit minors to
view live obscene sex acts but prohibit them from viewing the same
obscene sex act on a movie theater screen. Thus, to construe the
definition of “material” to not include live performances would thwart
legislative intent.
Second, “or other . . . materials” must necessarily mean something
unique from the rest of the defining terms. The list of items contained in
section 728.1(3) is all-inclusive. It covers all conceivable inanimate
objects that could constitute “material” for the purposes of the obscenity
chapter. If the legislature did not give “or other . . . materials” a meaning
other than an inanimate object, the word would become surplusage. See
Iowa Auto Dealers Ass’n v. Iowa Dep’t of Revenue & Fin., 301 N.W.2d
760, 765 (Iowa 1981) (stating that we give effect to all the words in the
statute unless no other construction is reasonably possible). Therefore,
“or other . . . materials” must refer to something other than an inanimate
object, at least in the context of the obscenity chapter.
Third, the uniformity provision in section 728.11 is a strong
indication of the general assembly’s desire to establish statewide
regulation of obscenity. The placement of section 728.5, which pertains
to live performances in the obscenity chapter, is indicative of the general
assembly’s intent to include its regulation of live performances in this
statewide scheme. See In re Det. of Garren, 620 N.W.2d 275, 280 (Iowa
2000) (“The legislature’s intent to enact a civil statute is also implied
from the placement of the [Sexually Violent Predator Act] among code
chapters dealing with the mentally ill . . . .”); State v. Iowa Dist. Ct., 616
19
N.W.2d 575, 579 (Iowa 2000) (holding the placement of a statute
mandating a minimum sentence for certain felonies in the chapter
governing felonies rather than the chapter governing sentence reduction
indicated a legislative intent to operate as a minimum sentence for felons
and not a restriction on the power of a parole board); see also NLRB v.
Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (“Words are not pebbles
in alien juxtaposition; they have only a communal existence; and not
only does the meaning of each interpenetrate the other, but all in their
aggregate take their purport from the setting in which they are used.”).
We must read chapter 728 as a whole. By including within the obscenity
chapter a section pertaining to live performances of a sexual nature, it is
reasonable to infer based on the particular characteristics of chapter 728
that the general assembly intended live performances to be within the
scope of the term “or other . . . materials.”
Finally, the underlying issues in this case involve delicate issues of
free speech under the Iowa Constitution. The doctrine of constitutional
avoidance counsels us to construe section 728.1(3) in a fashion to avoid
constitutional issues. See Simmons v. State Pub. Defender, 791 N.W.2d
69, 74 (Iowa 2010); State v. Nail, 743 N.W.2d 535, 539 (Iowa 2007); see
also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345–48, 56 S. Ct.
466, 482–84, 80 L. Ed. 688, 710–12 (1936) (Brandeis, J., concurring)
(famously observing that constitutional adjudication is a matter of “great
gravity and delicacy” and discussing the principles of constitutional
avoidance). In considering whether a local ordinance is preempted under
state law, the preemption question is regarded as a question of statutory
construction. See Puerto Rico Tel. Co. v. Municipality of Guayanilla, 450
F.3d 9, 13 (lst Cir. 2006); N.J. Payphone Ass’n, Inc. v. Town of W. N.Y.,
299 F.3d 235, 239 n.2 (3d Cir. 2002). Thus, unlike an ordinary
preemption case, where a court construes statutes to avoid preemption,
20
a court faced with an important constitutional question should seek to
interpret statutes in a fashion to avoid constitutional issues.
Accordingly, we find the general assembly intended to include live
performances in the definition of “material” for the purposes of chapter
728. Therefore, to be consistent with our construction of section 728.11
in Chelsea Theater, we must find that section 728.11 preempts the City
from enacting any ordinance regulating nude dancing in a theater. Until
the general assembly amends section 728.11, the City is without
authority to regulate nude dancing. 6 Accordingly, we reverse the
judgment of the district court and remand this case for the court to enter
an order enjoining the City from enforcing its ordinance regulating nude
dancing in the Hamburg Theatre. Our ruling today does not prevent the
City from enforcing its laws or state laws dealing with controlled
substances, prostitution, loitering, littering, the service of alcoholic
beverages to adults or minors, the consumption of alcoholic beverages by
minors, or valid zoning laws.
V. Disposition.
Having found that state law preempts the City of Hamburg’s
ordinance because the ordinance attempts to regulate nude dancing, we
reverse the judgment of the district court and remand the case to the
district court with instructions to enter an order enjoining the City of
Hamburg from enforcing its ordinance against Mall Real Estate.
REVERSED AND REMANDED WITH INSTRUCTIONS.
All justices concur except Cady, C.J., and Waterman, J., who
dissent separately and Mansfield, J., who takes no part.
6
Although we conclude the general assembly intended nude and seminude
dancing to be within the scope of section 728.11, we do not express any opinion as to
the constitutionality of any provision in chapter 728 because it is beyond the scope of
this appeal.
21
#10–0898, Mall Real Estate, L.L.C. v. City of Hamburg
CADY, Chief Justice (dissenting).
I respectfully dissent from the decision by the majority.
Our legislature intended to regulate obscenity by regulating
“obscene material,” and it sought to do so exclusively through express
preemption. See Iowa Code § 728.11 (2009) (“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 . . . .”). To accomplish this regulation, the
legislature enacted chapter 728 and defined both “obscene material” and
“material.” See Iowa Code § 728.1(3), (5). We are ordinarily bound to
follow legislative definitions. Inter-State Nurseries, Inc. v. Iowa Dep’t of
Revenue, 164 N.W.2d 858, 861 (Iowa 1969). The legislative definition of
“obscene material” relates to material that depicts or describes obscene
matters, and the definition of “material” relates to the various mediums
used to depict or describe obscene matter. See Iowa Code § 728.1(3), (5).
These definitions express the scope of the regulation intended by the
legislature, as well as the scope of preemption of local regulation.
The legislature defined the term “material” by listing five categories
of material containing twenty-one or more specific items:
1. “[A]ny book, magazine, newspaper or other printed
or written material”;
2. “[A]ny picture, drawing, photograph, motion
picture, or other pictorial representation”;
3. “[A]ny statue or other figure”;
4. “[A]ny recording, transcription, or mechanical,
chemical, or electrical reproduction”;
5. “[A]ny other articles, equipment, machines or
materials.”
22
See id. § 728.1(3). The question of statutory interpretation in this case is
whether this definition includes the act of nude erotic dancing by a live
performer. The majority concludes the legislature intended for nude
dancing to be included within the meaning of the word “materials.” In
other words, in the judgment of the majority, “materials” means a dancer
to our legislature. This conclusion not only defies common sense, it
defies our accepted rules of construction.
Two intrinsic aids are commonly used to find the legislative intent
of statutes that define a particular concept by using a list of descriptive
words. The first aid is the noscitur a sociis doctrine, which provides that
the meaning of ambiguous words is determined by reference to their
relationship with associated words and phrases. Peak v. Adams, 799
N.W.2d 535, 547–48 (Iowa 2011) (describing noscitur a sociis as a canon
of construction that “ ‘summarizes the rule of both language and law that
the meanings of particular words may be indicated or controlled by
associated words’ ” (quoting 11 Richard A. Lord, Williston on Contracts
§ 32:6, at 432 (4th ed. 1999))). The coupling of words ordinarily denotes
an intention that the words should be understood in the same general
sense. 2A Norman J. Singer & J.D. Shambie Singer, Statutes and
Statutory Construction § 47:16, at 353 (7th ed. 2007) [hereinafter Singer].
In other words, the meaning of a word is judged by the company the
word keeps. State v. Merino, 915 P.2d 672, 691 (Haw. 1996). The
doctrine was perhaps most colorfully explained by Lord Macmillan as
“words of a feather flock together.” Hugh Pattison Macmillan, Rt. Hon.
Lord, Law and Language, Presidential Address to the Holdsworth Club
(May 15, 1931).
The noscitur a sociis doctrine is accepted in the law to discern
legislative intent because it reflects the accepted way people write and
23
speak about a particular topic. Good communication is built by weaving
a set of words together to create what linguists call semantic fields,
words that share a common meaning and allow the topic to be
understood as a connected text rather than a disconnected thought.
Just as good writing seeks to eliminate unrelated words because they
confuse the message, good interpretation seeks to construe ambiguous
words as connected, not unrelated.
If, for the moment, the disputed word in this case—materials—is
removed from the twenty-one-word list of section 728.1(3), all five
categories and every descriptive word within each category describe
various mediums that can be used to depict or display inanimate
obscene pornography. The mediums listed have been used to create a
multibillion-dollar commercial industry that distributes pornographic
material worldwide. When the word “materials” is then added back into
the definition in section 728.1(3), its meaning is logically derived from its
associated words. Our legislature, like people in general, would not
construct a list of twenty ways to distribute inanimate obscene material
and then add a new topic of animate displays of obscenity to the
definition by adding the word “materials” at the end of the list. Clearly,
the application of the doctrine of associated words would exclude live
performing arts from the definition of “material.” Under the noscitur a
sociis doctrine, the word “materials” would mean any mediums used to
display inanimate obscene pornography not specifically listed.
The second intrinsic aid, ejusdem generis, is a variation of the first
and describes a common drafting technique that allows lawmakers to
capture all of the intended applications of the statute. See 2A Singer
§ 47:17, at 357, 370–73. This doctrine attempts to reconcile the
incompatibility between specific and general words so that all parts of a
24
statute are construed together, and no words are rendered superfluous.
Id. at 375–76. This maxim treats specific words as expressing a class or
topic and a general word within the same group as a means of extending
the statute to include everything within the class, though not specifically
listed. Id. § 47:18, at 378. The doctrine is not just semantics and formal
logic. Id. at 382. Instead,
[i]t rests on practical insights about everyday language
usage. When people list a number of particulars and add a
general reference like “and so forth,” they mean to include by
use of the general reference not everything else but only
others of the like kind.
Id.
Like the first doctrine, this maxim also reveals our legislature did
not intend to include the act of dancing within the definition of material.
The definition lists only inanimate mediums and concludes with a
catchall category of “any other articles, equipment, machines or
materials.” See Iowa Code § 728.1(3) (emphasis added). The ejusdem
generis doctrine reveals the legislature used the last category of more
general words to expand the definition of material to include everything
embraced within the class of medium capable of displaying or depicting
inanimate, obscene pornography. Moreover, the words “articles,”
“equipment,” and “machines” in the catchall category do not describe a
new class of animate means of displaying pornography so that the
meaning of “materials” could include nude dancing. Accordingly, like the
first intrinsic aid, the doctrine of ejusdem generis does not support the
conclusion of the majority. See Fleur de Lis Motor Inns, Inc. v. Bair, 301
N.W.2d 685, 690 (Iowa 1981) (indicating the doctrines of noscitur a sociis
and ejusdem generis normally produce identical results).
25
I acknowledge that neither of these intrinsic aids should be
followed by courts when there is a clear, contrary legislative intent. Yet,
there is nothing about the statute in question or any other rules of
construction that manifest an intent to regulate the subject of obscenity
in the live performing arts. The contrary conclusion by the majority is, in
its best light, unpersuasive.
First, reasonable people would agree that our legislature could
logically choose to regulate the distribution of inanimate obscene
materials without also regulating obscenity in the live performing arts.
The legislature could, of course, preempt both areas, but the two are not
so compatible that a court interpreting a preemption statute could
conclude it would be absurd to only preempt local regulation of
inanimate obscene materials and not obscene live dancing. In fact, it
makes perfect sense for our legislature to regulate the obscene
pornography industry statewide but permit local government to
participate in the regulation of live nude dancing in their communities.
Live nude dancing raises problems quite different from traffic in
inanimate obscene pornography. Additionally, it would make perfect
sense for our legislature to regulate the distribution of obscene
pornography to minors in the form of film shown by movie theaters and
to leave it to local government to regulate access by minors to places that
provide live adult entertainment. Contrary to the claim of the majority,
such an approach would not mean our legislature would have intended
to permit minors to view live obscene sex acts by excluding live dancing
from the subject in the preemption. Preemption is a doctrine of
legislative authority to exclusively regulate an area. It does not express a
legislative intent to permit conduct that falls outside of the preempted
area. For example, our legislature did not intend to countenance
26
overtime parking in society by failing to include state provisions
governing overtime parking within its laws governing the operation of
motor vehicles.
Thus, for the majority to conclude it would be absurd for our
legislature to have left nude dancing out of its preemption scheme is
itself absurd. Additionally, the absurd-results doctrine followed by the
majority must only be utilized sparingly due to the risk of displacing
legislative policy with judicial policy based on speculation. Kolzow v.
State, 813 N.W.2d 731, 739 (Iowa 2012) (“We use the absurd results
doctrine sparingly because of the risk of displacing legislative policy.”);
2A Singer § 45:12, at 105–07. When there is no basis to claim an absurd
result, there is no claim to use the doctrine.
Second, the list of items in section 728.1(3) may be fairly
comprehensive, but hardly all inclusive, so as to render the meaning of
the term “other . . . material” as surplusage, as asserted by the majority.
Ordinarily, it is nearly impossible to spell out every condition in a
statute, making it common for legislators to use general words in
conjunction with specific enumerative words to include additional
contingencies. See 2A Singer § 47:17, at 370–73. The approach taken
by the majority to declare the specific enumerated terms of the statute to
be all inclusive undermines our law and logic. It is inconsistent with the
accepted legislative drafting technique of using catchall phrases to
capture the entire scope of the statute. Commonly, catchall phrases are
used to allow a statute to maintain its relevancy in the face of our ever-
changing society. For example, in this case, the catchall phrase in
section 728.1(3) would allow the statute to not only capture all current
mediums of the distribution of inanimate obscene material, but also new
27
mediums that surely will be developed in the future as technology
continues to change.
Third, words in a statute are to be given their common meaning.
Severs v. Abrahamson, 255 Iowa 979, 981, 124 N.W.2d 150, 152 (1963).
There is no legal principle that allows the secondary meaning of a word
to change the topic of a statutory definition, especially when the
secondary meaning has little, if any, connection to the new topic sought
to be introduced. In this case, the word “materials” may have a
secondary meaning relating to the repertoire of a performer, but the
meaning of “repertoire” is itself a torturous way to express an intent to
include live nude dancing. Nevertheless, the legislature would not use a
word with a primary meaning consistent with the other associated words
in a statutory definition to create a new topic in the definition derived
from a secondary meaning of the word. In other provisions of chapter
728, the legislature expressly criminalizes public indecent exposure by
persons. Iowa Code § 728.5. Yet, the preemption provision at issue is
limited to obscene materials. See id. § 728.11. If the legislature intended
to preempt local regulation of live acts, it would have said so in section
728.11.
Fourth, courts must attempt to construe statutes in a way that
does not render them unconstitutional. 2A Singer § 45:11, at 80–81.
This approach means courts are to interpret a statute in a way that
supports its constitutionality when the statute is open to two reasonable
constructions. See id. In this case, the word “materials” in section
728.1(3) is not open to two reasonable constructions in the context of the
statute.
Fifth, it is of no value to string together cases from other
jurisdictions where legislatures have specifically defined obscenity to
28
include live performances. As previously indicated, it would be a
reasonable approach for a state to regulate both inanimate obscene
material and live nude dancing. Nevertheless, it would be just as
reasonable to regulate obscenity using a combination of state and local
government regulations. The question for us in this case is to determine
the approach taken in Iowa, not the approach taken in other states. Any
reference to a string of authorities from other states appears facially
impressive, but is totally irrelevant.
Finally, in Dingman v. City of Council Bluffs, 249 Iowa 1121, 90
N.W.2d 742 (1958), we said the plain, obvious, and rational meaning of a
statute is always preferred over any curious, narrow, hidden sense that
is only uncovered by ingenuity and intellect. 249 Iowa at 1127, 90
N.W.2d at 746–47. The majority has failed to heed this admonition. Our
legislature did not intend for the word “materials” to mean nude, erotic
dancing. A square peg simply will not fit into a round hole.
Therefore, I would conclude state law did not preempt Hamburg’s
ordinance. The Iowa legislature did not deprive local governments of the
ability to regulate live nude dancing. Therefore, we should address the
substantive issue of whether the restrictions imposed by the Hamburg
ordinance violate our Iowa Constitution’s prohibition of laws abridging
the freedom of speech. Because the majority does not address the issue,
however, I will leave it for another day to express my views in this area
and simply dissent from the decision made by the majority.
29
#10–0898, Mall Real Estate, L.L.C. v. City of Hamburg
WATERMAN, Justice (dissenting).
I respectfully dissent from the majority opinion. I join in the
preemption analysis of Chief Justice Cady’s dissent, but would reach the
merits and conclude the City of Hamburg’s ordinance restricting conduct
at defendant’s strip club, Shotgun Geniez, is constitutional under well-
settled precedent. The majority erroneously deprives local governments
of the ability to regulate such establishments in our state and unfairly
blames the legislature for this outcome. As Chief Justice Cady explains,
live nude dancing simply does not fall within the definition of “obscene
materials” in Iowa Code section 728.1(2), (5) (2009) in which the
legislature prescribed a list of inanimate objects like photos, movies, and
magazines that are removed from local regulation by the preemption
provision in section 728.11 that is expressly limited to obscene materials.
The strip club challenges the ordinance under article I, section 7 of
the Iowa Constitution, but offers no persuasive reason to diverge from
settled federal precedent in applying the Iowa constitutional protections
for speech and expressive conduct. I believe the protection for the
expressive conduct at issue is the same under the Iowa and Federal
Constitutions. See In re Adoption of S.J.D., 641 N.W.2d 794, 802 (Iowa
2002) (“The Iowa Constitution also protects free speech and imposes the
‘same restrictions on the regulation of speech as does the Federal
Constitution.’ ” (quoting State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997)));
Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493, 498
(Iowa 1976) (“We believe the federal and state constitutional provisions,
which contain almost identical language, impose the same limitation on
abridgement of freedom of the press.”).
30
Although federal precedent makes clear nude dancing is protected
expressive conduct, it is “within the outer perimeters of the First
Amendment” and only “marginally so.” Barnes v. Glen Theatre, Inc., 501
U.S. 560, 566, 111 S. Ct. 2456, 2460, 115 L. Ed. 2d 504, 511 (1991)
(plurality); accord City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S. Ct.
1382, 1391, 146 L. Ed. 2d 265, 278 (2000) (plurality) (stating nude
dancing “falls only within the outer ambit of the First Amendment’s
protection”). The expressive conduct at issue in this case, including pole
dancing, is a far cry from the heart of the First Amendment—protection
for political speech and debate to better inform the citizenry for self-
government. See Knox v. Serv. Emps. Int’l Union, Local 1000, ___ U.S.
___, ___, 132 S. Ct. 2277, 2288, 183 L. Ed. 2d 281, 296 (2012). 7 As
Justice Stevens aptly observed, “it is manifest that society’s interest in
protecting [erotic] expression is of a wholly different, and lesser,
7The Knox Court this summer summarized the core First Amendment values as
follows:
Our cases have often noted the close connection between our
Nation’s commitment to self-government and the rights protected by the
First Amendment. See, e.g., Brown v. Hartlage, 456 U.S. 45, 52, 102
S. Ct. 1523, 1528, 71 L. Ed. 2d 732, 740 (1982) (“At the core of the First
Amendment are certain basic conceptions about the manner in which
political discussion in a representative democracy should proceed[.]”);
Buckley v. Valeo, 424 U.S. 1, 93, n. 127, 96 S. Ct. 612, 46 L. Ed. 2d 659(1976) (per curiam) (“[T]he central purpose of the Speech and Press
Clauses was to assure a society in which ‘uninhibited, robust, and wide-
open’ public debate concerning matters of public interest would thrive,
for only in such a society can a healthy representative democracy
flourish[.]”); Cox v. Louisiana, 379 U.S. 536, 552, 85 S. Ct. 453, 13
L. Ed. 2d 471 (1965) (“Maintenance of the opportunity for free political
discussion is a basic tenet of our constitutional democracy[.]”); Whitney
v. California, 274 U.S. 357, 375, 47 S. Ct. 641, 71 L. Ed. 1095 (1927)
(Brandeis, J., concurring); Patterson v. Colorado ex rel. Attorney General
of Colo., 205 U.S. 454, 465, 27 S. Ct. 556, 51 L. Ed. 879 (1907) (Harlan,
J., dissenting).
Knox, ___ U.S. at ___, 132 S. Ct. at 2288, 183 L. Ed. 2d at 296.
31
magnitude than the interest in untrammeled political debate” and “few of
us would march our sons and daughters off to war to preserve the
citizen’s right” to view nude dancing or receive lap dances. Young v. Am.
Mini Theatres, Inc., 427 U.S. 50, 70, 96 S. Ct. 2440, 2452, 49 L. Ed. 2d
310, 326 (1976) (plurality). Most importantly, the First Amendment and
its Iowa counterpart protect the right of citizens to criticize government
officials. That is not what the strippers are doing at Shotgun Geniez.
The Supreme Court has twice upheld state laws requiring nude
dancers to wear “G-strings” and “pasties,” concluding the restrictions
imposed de minimis infringement on marginally protected speech while
legitimately targeting undesirable secondary effects associated with
sexually oriented business. See Pap’s A.M., 529 U.S. at 294, 120 S. Ct.
at 1393, 146 L. Ed. 2d at 281 (reasoning a ban on total nudity arguably
“has some minimal effect on the erotic message by muting that portion of
the expression that occurs when the last stitch is dropped,” but “[a]ny
effect on the overall expression is de minimis”); Glen Theatre, Inc., 501
U.S. at 571, 111 S. Ct. at 2463, 115 L. Ed. 2d at 514 (reasoning the G-
string and pasties requirement “does not deprive the dance of whatever
erotic message it conveys”).
I believe Iowa local governments may enact restrictions designed to
limit undesirable secondary effects such as prostitution, assault, and
drug distribution associated with strip clubs in their own communities,
unless the restrictions “so interfere[] with the message that it essentially
bans the message.” Pap’s A.M., 529 U.S. at 293, 120 S. Ct. at 1393, 146
L. Ed. 2d at 280. The City of Hamburg’s ordinance restricts total nudity
in a manner upheld by the Supreme Court. Id. The ordinance also
prevents the strip club from selling alcohol, which is unrelated to the
erotic message. The ordinance further requires sexually oriented
32
business to close by 2 a.m., restricts consumption of alcohol brought in
by patrons, requires dancers to perform on a stage at least six feet from
customers, and limits how customers can properly tip dancers. In my
view, all these restrictions pass constitutional muster.
The strip club complains the City’s six-foot distance requirement
“kills the business model.” No doubt a customer’s sensory appreciation
of the dancer’s artistic message is enhanced by the grinding physical
contact of a vigorous lap dance. But, I see no constitutional right to give
a paying customer a lap dance. If it is the “artistic expression” that is
constitutionally protected, the City may impose reasonable time, place,
and manner restrictions to curb undesirable secondary effects. A six-
foot minimum distance requirement still allows a customer a full view of
the dancing without the heightened risk of secondary effects encouraged
by physical contact.
Numerous federal appellate courts have held restrictions like
Hamburg’s permissibly impose incidental and minimal burdens on the
expressive message of nude dancing and constitute a legitimate effort to
control the negative secondary effects associated with sexually oriented
businesses. See 84 Video/Newsstand, Inc. v. Sartini, 455 F. App’x 541,
561–62 (6th Cir. 2011), cert. denied, ___ U.S. ___, 132 S. Ct. 1637, 182
L. Ed. 2d 234 (2012) (upholding no-touch and hours restrictions against
First Amendment challenge); Fantasy Ranch Inc. v. City of Arlington, 459
F.3d 546, 562 (5th Cir. 2006) (“[W]e hold that the effect on the overall
expression is de minimis, as the City of Arlington has muted only that
portion of the expression that occurs when the six-foot line is crossed,
while leaving the erotic message largely intact.”); G.M. Enters., Inc. v.
Town of St. Joseph, 350 F.3d 631, 638 (7th Cir. 2003) (upholding a no-
touching requirement because “a minimal physical buffer between
33
patrons and dancers does not reduce the availability of nude dance
entertainment”); Wise Enters., Inc. v. Unified Gov’t of Athens-Clarke Cnty.,
217 F.3d 1360, 1363–65 (11th Cir. 2000) (upholding ordinance
preventing sale of alcohol in sexually oriented business); Lady J. Lingerie,
Inc. v. City of Jacksonville, 176 F.3d 1358, 1364–65 (11th Cir. 1999)
(upholding an hours-of-operation and square-foot limitation because the
restrictions “do not directly regulate[] the expressive conduct that is the
basis of the plaintiffs’ First Amendment challenges: nude dancing”);
Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998) (rejecting First
Amendment challenge to Iowa statute requiring pasties and G-strings).
These authorities are persuasive and should be followed when applying
our Iowa constitutional protections to this case.
For these reasons, I would affirm the district court ruling
upholding the City of Hamburg ordinance.