Books, Inc. v. Pottawattamie County, Ia.

• Decision Date: 22 September 1997
• Docket Number: Civil No. 1-97-90011.
• Citation: 978 F.Supp. 1247
• Parties: BOOKS, INC., an Iowa Corporation, Plaintiff, v. POTTAWATTAMIE COUNTY, IOWA, Defendant.
• Court: U.S. District Court — Southern District of Iowa

978 F.Supp. 1247

BOOKS, INC., an Iowa Corporation, Plaintiff, v. POTTAWATTAMIE COUNTY, IOWA, Defendant.

Civil No. 1-97-90011.

United States District Court, S.D. Iowa, Western Division.

September 22, 1997.

COPYRIGHT MATERIAL OMITTED

Deborah D. Cunningham, Omaha, NE, Bradley J. Reich, Denver, CO, Richard A. Anderson, Dallas, TX, for Plaintiff.

James E. Gritzner, Joan H. Fletcher, Des Moines, IA, for Defendant.

MEMORANDUM OPINION AND RULING ON REQUEST FOR PRELIMINARY INJUNCTION

MEMORANDUM AND RULING

PRATT, District Judge.

This case involves a county government's attempt to impose certain licensing and zoning requirements on "adult entertainment businesses." A company that wishes to establish such a business (1) argues that the ordinance is unconstitutional in several respects, and (2) requests that this court issue a preliminary injunction to block the enforcement of the ordinance. The court agrees that, as the evidence now stands, the ordinance is probably unconstitutional on several matters. The court, therefore, grants the prospective business's request for a preliminary injunction.

I. Background:

On December 28, 1994, the Board of Supervisors of Pottawattamie County amended the Pottawattamie County Code by adding a new chapter entitled "Adult Entertainment Business — License Required." Pottawattamie County, Iowa, Code ch. 3.50(1994). This new chapter governs the unincorporated areas of the county and does not concern the City of Council Bluffs or other incorporated municipalities. The pertinent portion of the ordinance reads as follows:

ADULT ENTERTAINMENT BUSINESS — LICENSE REQUIRED

3.50.010 DEFINITIONS: For the purpose of this the following words, terms and phrases shall be deemed to have the following meanings:

.01 ADULT ENTERTAINMENT BUSINESSES: Shall includ[e] the following uses, activities or establishments:

a. ADULT BOOKSTORE: An establishment that has a substantial or significant portion of its stock in trade in, or has a segment or section devoted to the sale or display of books, magazines or other periodicals, videos, tapes, holographs or holograms, sexually oriented paraphernalia, movies, games, materials, visual images or similar devices, along or in combination with each other, all or any of which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined herein.

b. ADULT MINI MOTION PICTURE THEATER: An enclosed building with a capacity for less than fifty (50) persons used for presenting materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined herein, for observation by patrons therein.

c. ADULT MOTION PICTURE THEATER: An enclosed building with a capacity of fifty (50) or more persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined herein, for observation by patrons therein.

. . .

h. LIVE DANCING OR ENTERTAINMENT, such as go-go dancing, strip-tease acts and exotic dancing.

i. MODELING STUDIOS.

j. OTHER KINDRED OR RELATED USES, ACTIVITIES OR ESTABLISHMENTS, wherein the employees, models, escorts or other contract workers are nude or seminude.

.07 MODEL: Any person who for consideration or gratuity appears either nude or seminude, to be viewed, photographed, sketched, drawn, sculptured; to dance; to provide reading or counseling sessions; for body painting; to deliver a service or in connection with the sale of merchandise; or to present materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

.08 NUDE or SEMINUDE: A state of dress in which any specified anatomical area is displayed.

.09 SPECIFIED ANATOMICAL AREAS: Any of the following:

a. Human genitals in a state of sexual stimulation or arousal;

b. Acts or representations of acts of human masturbation, sexual intercourse, sodomy, bestiality, oral copulation or flagellation;

c. Fondling or erotic touching of human genitals, pubic regions, buttock or female breast;

d. Excretory functions as part of or in connection with any of the activities set forth in subsections (a) through (c) above.

.50.020 LICENSE: It is unlawful for any person to engage in, conduct of carry on, in or upon any premises or real property located or situated within the unincorporated area of the County, the activities or an adult entertainment business, unless there has been granted to such person a valid license, pursuant to the provisions of this Chapter. A separate license shall be required for each location within the County, at which an adult entertainment business is to be established.

.50.030 SITING CRITERIA: No person shall cause or permit the establishment of any adult entertainment businesses within two (2) miles of the corporate limits of any municipality, nor within one (1) mile from another such business, any school, church, public park, public playground, public plaza, cemetery or area zoned for residential use. Measurements shall be taken on a direct line from the main entrance of such adult entertainment business to the point on the property line of such other business, school, church, public park, public playground, public plaza, or area zoned for residential use which is closest to the said main entrance of such adult entertainment business.

The "establishment" of an "adult entertainment business" shall include the opening of such business, or the conversion of an existing business to any of the uses defined as an "adult entertainment business".

. . . . .

.50.050 LICENSE TERM: The term of an adult entertainment business license shall be for a period of one (1) year; provided, however, that all licenses shall expire on June 30th of each year unless sooner suspended or revoked.

.50.060 LICENSE RENEWAL: An adult entertainment business license, issued pursuant to the provisions of this Chapter, which has not been suspended or revoked, may be renewed for a period not to exceed one (1) year upon written application to the County Planning Director made at least thirty (30) days prior to the expiration date of the current valid license. The application of renewal of a license shall contain all of the information required by Section 3.50.080 of this Chapter and shall be processed in accordance with the provisions of this Chapter.

. . . . .

.50.080 APPLICATION FOR ADULT ENTERTAINMENT BUSINESS LICENSE — CONTENTS, RENEWALS, REQUIRED FEE:

.01 Any person desiring to obtain a license or renew an existing license, to operate an adult entertainment business, shall make application to the County Planning Director ....

.02 Neither the filing of an application for a license or renewal thereof, nor payment of an application or renewal fee, shall authorize the conducting of an adult entertainment business until such license is granted or renewed.

. . . . .

.05 The county planning department shall complete their certification that the premises is in compliance, or not in compliance, within twenty (20) days of receipt of the application by the County Planning Director.

.06 The County Planning Director, within thirty (30) days after receiving the application, shall grant the license or renewal license only if the County Planning Director finds that all of the following requirements have been met:

a. The required fees have been paid;

b. The application and location conforms in all respects to the provisions of this Chapter;

c. The applicant has not knowingly made a material misrepresentation of fact in the application;

d. The applicant fully cooperated in the investigation of the application; and

e. The applicant, manager or other person principally in charge of the operation of the business is at least eighteen (18) years of age.

.07 If the County Planning Director does not find that all of the requirements set forth in subsections (.06)(a) through (e) of this Section have been met, the County Planning Director shall deny the application for the license or renewal thereof. In the event the application for the license or renewal is denied by the County Planning Director, written notice of the denial shall be given to the applicant, specifying the ground or grounds for such denial.... Any applicant who[se] application for an adult entertainment business license or renewal has been denied by the County Planning Director, may appeal such denial to the Board of Supervisors within twenty (20) days of such denial. Applicants may seek prompt judicial review of this administrative action in any court of competent jurisdiction.

.50.090 PROHIBITED ACTIVITIES OF ADULT ENTERTAINMENT BUSINESS:

. . . . .

.08 No employee, escort, model, or other contract worker or person shall expose their female or male genitals or buttocks.

. . . . .

.50.140 PERMIT — RENEWAL APPLICATION:

. . . . .

.07 If the County Sheriff does not find that all of the requirements set forth in subsection .06 of this section have been met, the County Sheriff shall recommend denial of the application for the permit or renewal thereof.... Any applicant whose application for an escort/model permit, or renewal thereof, has been denied by the County Planning Director may appeal such denial to the Board of Supervisors within twenty (20) days of such denial. Applicants may seek prompt judicial review of this administrative action in any court of competent jurisdiction.

.50.150 UNLAWFUL ACTS: It is unlawful for:

. . . . .

.07 The holder of an escort/model permit to expose female or male genitals or buttocks while on the premises of an adult entertainment business.

. . . . .

.50.190 SUSPENSION OR REVOCATION OF A LICENSE OR PERMIT: If the County Planning Director finds that any person holding an adult entertainment...