South Dakota city to repeal, replace anti-nudity ordinance

Friday, July 24, 1998

Brookings, S.D., city officials decided on Tuesday to repeal an anti-nudity ordinance and let the public vote on a new proposal they say will withstand First Amendment challenges.

City officials proposed the anti-nudity law shortly after a strip club, Peelers Gentlemen's Club, opened in April. City officials placed the proposal on the June 2 primary election ballot, and it passed by a vote of 1,518 to 895.

The law prohibited “any person to knowingly or intentionally, in a public place, appear in a state of nudity.” The law also said no person under 21 could enter a place offering nude dancing.

Two days after the vote Peelers filed a federal lawsuit, contending the ordinance violated free-expression rights, and that city officials violated state law by placing the issue on the ballot too quickly.

State law provides that a county or municipality may propose an ordinance regulating “obscene live conduct” for approval “at the next regular municipal or general election.”

However, Brookings officials had placed the issue on the ballot for a “special municipal election.”

In Pegasus, Inc. v. City of Brookings, the club alleged that “as the ordinance was not referred to the electorate 'at the next regular municipal or general election,' it is not a valid ordinance and may not be enforced by defendant.”

Federal District Court Judge Lawrence Piersol issued a temporary restraining order June 12, preventing city officials from enforcing the ordinance until the matter could be resolved at trial, scheduled for Aug. 6.

Instead of going to trial, city officials decided Tuesday to repeal the ordinance and present citizens with a revised version, to be voted on in the Nov. 3 general election.

Alan Glover, attorney for the city, said that Brookings officials decided to propose a new ordinance for three reasons: “One, we felt that we might be lacking legal basis to exclude young adults 18-20 from these establishments. Secondly, the judge was not impressed with our argument that we could get away with deciding this issue at a special, not a general, election. Finally, the judge seemed to indicate that our ordinance should have an exception for legitimate theaters.”

In his order granting temporary relief, Piersol wrote that the ordinance may be overbroad because it does not exempt places “where performances with artistic merit might be presented such as modern dance, musicals and dramatic plays.” Piersol pointed out that “the Broadway performance of the drama The Elephant Man includes a scene in which a female actor briefly bares her breasts.”

The new proposal would prohibit only those under 18 from viewing nude dancing and provides an exception for “theatres used for production of legitimate theatre and theatrical productions.”

Rick Entwistle, attorney for the club, said: “The repeal of the existing ordinance moots our lawsuit. Therefore, we will dismiss our federal lawsuit.”

But, Entwistle said the new proposal would also violate the First Amendment. He especially questioned the “legitimate” theater exception, asking “What exactly is legitimate?”

“Our client will have to determine whether they want to challenge this new proposal if it becomes law,” he said. “We are hopeful that the ordinance will be defeated at the general election in November.”