HomeMy WebLinkAboutA001 - Council Action Form dated December 9, 2014 ITEM# 29
DATE: 12/9/14
COUNCIL ACTION FORM
SUBJECT: STATE PREEMPTION OF CITY LAP DANCE ORDINANCE
BACKGROUND:
In September 1996, the City Council adopted an ordinance prohibiting the touching
between nude or nearly nude entertainers and customers. It was determined at the time
that the physical contact between these parties was a potential health issue and directly
correlated to criminal activity, such as assaults and prostitution.
Iowa Code §728.11 gives the State sole authority to regulate "obscene material" as
defined in Iowa Code chapter 728. In July 2012, the Iowa Supreme Court determined
that "live nude dancing", while not explicitly included in the definition of "material", was
intended by the legislature to be included in the definition (Mall Real Estate, L.L.C. v.
City of Hamburg). Therefore, the Supreme Court decided that local government is
expressly preempted from enacting or enforcing an ordinance that regulates live
nude dancing, as it is considered obscene material.
On November 13, 2013, the Ames Police Department issued two citations to two
individuals for exposing a regulated/prohibited private body part in violation of the City's
lap dance ordinance. Both defendants challenged the citations claiming that the Ames
ordinance was preempted by State law and was therefore void and unenforceable. At
trial in District Associate Court, the Court decided in favor of the City and found the
defendants in violation of the Ames ordinance.
The defendants appealed the decision to the District Court. On November 14, 2014, the
District Court held that touching of a semi-nude dancer (a violation of Ames' ordinance)
was not distinguishable from "live nude dancing." Since the Iowa Supreme Court
determined that the definition of "live nude dancing" included physical contact, the
District Court held that the Ames ordinance was void and unenforceable as it was
preempted by state law. The City may appeal the decision within 30 days of the
order, by December 14, 2014. Since the decision, the Ames Police Department
has not been enforcing the ordinance.
Subsequent to the July 2012 Iowa Supreme Court decision, the State Legislature
introduced legislation that more clearly defined "material" in Iowa Code chapter 728.
The proposed legislation clarified that "live acts, performances, or exhibitions" are
excluded from the list of state-regulated obscene material. The proposal also limited the
state's preemption to not restrict a city's authority to regulate a place of business that
permits live nude or semi-nude performances. The proposed legislation (House File
359) passed in the House, but failed to pass in the Senate.
1
ALTERNATIVES:
1. Direct City staff to seek a change in Iowa Code to provide for local control of live
nude dancing.
2. Direct the City Attorney to appeal the decision of the District Court.
3. Direct the City Attorney to repeal Ames Municipal Ordinance §17.31, Touching of
Certain Entertainers Regulated.
MANAGER'S RECOMMENDED ACTION:
There are two questions before the City Council.
The first is whether the City Attorney should pursue further appeals in these cases. City
staff is not optimistic that the City would ultimately prevail in any further appeals in these
cases for a few reasons: (1) the decision interpreting live nude dancing to be state-
regulated obscene material came from the Iowa Supreme Court, and (2) the decision
determined that live nude dancing is included the "touching" of performers, which is
exactly what the Ames ordinance regulates.
The second question is whether City staff should attempt to persuade state legislators
to clarify state law, making it clear that cities have the authority to regulate this type of
activity. Historically, the City has sought greater local control over issues such as this,
because it provides an opportunity for the community to take into account its unique
interests, rather than relying on a broad state law.
Assuming the City Council is interested in local control regarding this issue, it is
therefore the recommendation of the City Manager that the City Council adopt
Alternative No. 1, thereby directing City staff to seek a change in Iowa Code to provide
for local control of live nude dancing. This issue can be raised during our upcoming visit
with our State legislators.
2