Nude dancing club to challenge ordinance passed by referendum

Tuesday, November 10, 1998

The owners of a nude dancing club in Brookings, S.D., plan to file a second federal lawsuit tomorrow challenging the constitutionality of the city's anti-nudity ordinance.

This second lawsuit challenges the ordinance that voters passed by referendum last week.

City officials first proposed an anti-nudity ordinance shortly after Peelers Gentleman's Club opened for business in April. Club owners alleged that city officials placed the measure on the ballot in direct response to the opening of the club, which featured topless dancing.

South Dakota law allows a city to pass ordinances setting up a “contemporary community standards test to regulate … obscene live conduct in any commercial establishment or public place within its jurisdiction.” State law further provides that ordinances regulating such “obscene live conduct” must be placed on the ballot at the next regular municipal or general election.

Last June, the voters in Brookings approved the anti-nudity ordinance at a special municipal election. Two days later, the club filed its first lawsuit, Pegasus, Inc. v. City of Brookings, contending that the ordinance was not valid, in part because it was not voted on during a general election.

In July, city officials repealed the ordinance after a federal judge seemed skeptical of the way city officials had placed the measure on a special ballot. City officials had also added a few other amendments to the law, which generally prohibited “any person to knowingly or intentionally, in a public place, appear in a state of nudity.”

After city officials repealed the ordinance, Peelers dropped its first lawsuit.

However, last Tuesday the citizens of Brookings once again approved the anti-nudity law 65% to 35%.

The owners of Peelers have now filed a second lawsuit, contending that the anti-nudity ordinance violates First Amendment free-expression rights.

Randall Tigue, lead attorney for Peelers, said: “This law is clearly unconstitutionally overbroad. The U.S. Supreme Court has clearly stated that nudity alone is not obscenity. The law is simply not a legitimate regulation of nudity.”

Tigue, who litigates adult entertainment cases nationwide, said that the ordinance defines nudity too broadly. “One of the definitions of nudity under this law is covered male genitals in a discernibly turgid state,” he said.

“What are city officials going to do under this law?” asked Tigue. “Are they going to raid every singles bar on Saturday night? If they do, they are going to have a serious overcrowding problem in their jail. I dare say that the police chief and the city attorney and anyone else with a normal set of hormones has violated this ordinance on numerous occasions.”

Tigue also took issue with another provision of the ordinance that exempts nudity at so-called legitimate theaters. “This part of the ordinance is constitutionally invalid because it protects places, not performances,” he said. “Under this new law, if someone streaks buck-naked down a theater aisle they are protected, but if they engage in the same conduct at a place like Peelers, they will be in violation of the law. What sense does that make?”

Attorneys for Peelers have also filed a motion for a temporary restraining order to block enforcement of the law. That motion is expected to be heard Thursday afternoon.