Trish Mehaffey, CR Gazette –
The Iowa Supreme Court ruled Friday state law preempts a city ordinance regulating nude dancing in Hamburg.
The Hamburg city council passed an ordinance in 2008 regulating strip clubs, including licensing and zoning, alcohol and prohibits lap dances, according to the ruling. Mall Real Estate, which operates the Hamburg Performing Theatre for the Performing Arts, also known as Shotgun Geniez, sought an injunction restraining a city from enforcing its ordinance because it requires the semi-nude employees must remain more than six feet away from customers.
Owners, Clarence Judy and Terry Rutledge, argued the six-foot rule would eliminate lap dances – one of the major reasons patrons come to the club.
Brian Vakulskas, a Sioux City attorney who argued the appeal, said Friday the ruling protects or preserves this “business model,” which offers live nude performances, across the state.
“If local government was given the green light to shutdown (live nude dancing), I have no doubt they would do it,” Vakulskas said. “A negative ruling would have put them out of business.”
Mall Real Estate argued the Hamburg ordinance conflicts with the state law because a section in the law contains a theater exception and the ordinance doesn’t, according to the ruling. This section exempts theaters from the statewide ban of public nudity, and the provision states local governments aren’t allowed to make laws or ordinances relating to “availability of obscene materials.”
The justices considered the language of the statute involving obscene materials and concluded the legislature’s intent was that it included live nude dancing, according to the ruling. Therefore, state law would preempt any city ordinance regulating nude dancing in a theater.
Chief Justice Mark Cady and Justice Thomas Waterman dissented separately, saying the city ordinance should stand.
Cady argues “obscene materials” doesn’t include live nude dancing. The word “materials” doesn’t translate into “dancer” as the majority argued. The legislature defined the term “material” and dancer isn’t listed. It would make sense that legislators would regulate obscene pornography statewide but permit local governments to regulate live nude dancing, he said.
Cady said state law doesn’t preempt the ordinance and suggested the court should address whether the ordinance’s restrictions violate the state constitution.
