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Connie E. Anstey, James L. Bergthold, Law Office of Scott D. Bergthold, P. Several months after this court ened enforcement of amendments to city zoning ordinances regulating the location of "adult entertainment businesses" in Sioux City, Iowa which were passed just in time to bar the plaintiff's new store, a putative "adult entertainment business," from opening the plaintiff moved for summary judgment to make the preliminary injunction permanent. The plaintiff contends that nothing has changed and that the court should, therefore, confirm that the amended zoning ordinances violate First Amendment guarantees of free speech, leaving the only issue for trial the amount of damages to the plaintiff for the delay in opening its business caused by the unconstitutional amendments to the pertinent ordinances.

In response, the defendant city filed its own motion for summary judgment, asserting that another round of amendments has "mooted" the plaintiff's claims and that, in any event, the plaintiff's sale of "sex toys," for which no First Amendment protection is available, would have brought it within the purview of the first round of amended ordinances and would have constitutionally barred it from opening in its chosen location. The court must decide whether either party is entitled to summary judgment or whether this matter will, instead, proceed to trial on issues pertaining to the first round of ordinance amendments.

Plaintiff Doctor John's, Inc. Doctor John'sa putative "adult entertainment business," filed its original Complaint in this action on December 9,against the City of Sioux City, Iowa the Cityand Paul Eckert, in his official capacity as Sioux City's City Manager, challenging Sioux City's municipal ordinances imposing a moratorium on new "adult entertainment businesses" enacted in October and amended in November On January 20,Doctor John's filed an Amended Complaint, and on February 10,filed a Second Amended Complaint challenging further amendments to Sioux City's zoning ordinances concerning "adult entertainment businesses," enacted in January In its Second Amended Complaint, Doctor John's alleged that these ordinances violated its right to free expression protected by the First Amendment to the United States Constitution and constituted prior restraints on free expression; failed to allow reasonable alternative means of expression; resulted in a taking of its business property without due process of law; infringed First Amendment freedoms in a manner greater than necessary to further any valid interests of the City; lacked adequate procedural safeguards and failed to provide for prompt judicial review; and denied equal protection.

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The City denied these claims. On January 5,Doctor John's filed a Motion For Preliminary Injunction in which it requested that the court en the City from enforcing the temporary moratorium on adult entertainment businesses enacted in October At the evidentiary hearing, the court allowed Doctor John's to amend orally its Motion For Preliminary Injunction to seek an injunction against enforcement of the amended "adult entertainment business" ordinances enacted at the expiration of the moratorium in January the January Amendments.

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In a published ruling, Doctor John's, Inc. City of Sioux City, Iowa, F. Iowafiled February 26,the court entered a preliminary injunction ening the City from pursuing, instituting, continuing, or completing any and all enforcement actions pursuant to the municipal code employing the definition of "adult entertainment business" in the January Amendments, until such time as the preliminary injunction was dissolved or vacated, by this court or a reviewing court.

The preliminary injunction has remained in effect until this time. Some ten months after the court's preliminary injunction ruling, on December 20,Doctor John's filed a Motion For Partial Summary Judgment docket no.

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Somewhat more specifically, Doctor John's asserts in its supporting brief that the January Amendments do not withstand either strict or intermediate scrutiny. Consequently, Doctor John's seeks summary judgment granting permanent injunctive and declaratory relief barring enforcement of the January Amendments and leaving for trial only the issue of the damages that Doctor John's suffered because the opening of its store in Sioux City, Iowa, was delayed by the unconstitutional ordinances.

In its own motion and in resistance to the motion by Doctor John's, the City asserts that challenges to the January Amendments are "mooted," because further amendments repealing the January Amendments were filed in December the December Amendments ; because Doctor John's would have been a "sex shop" under the "sex toys" definitions in the January Amendments, which did not implicate First Amendment protections, and consequently, Doctor John's could have been lawfully excluded from its chosen location on that basis; and because, if the challenge to the "combination" provision of the January Amendments involving "adult media" is not moot, that provision was constitutional under the applicable level of scrutiny for regulation of speech, which the City contends is "intermediate scrutiny," so that Doctor John's could have been lawfully excluded from its chosen location under that provision, as well.

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On June 9,Doctor John's filed a motion to strike the supplemental appendix filed by the City with its reply docket no. These summary judgment motions, which pertain to the January Amendments, as well as Doctor John's motion to strike, are now before the court. As mentioned above, in Decemberwhile the present cross-motions for summary judgment on the January Amendments were pending, the City enacted additional amendments to its ordinances redefining "adult entertainment businesses" and repealing the January Amendments.

Those amendments are referred to herein, for the sake of convenience, as the December Amendments. Disposition of the Supplemental Motion For Summary Judgment relating to the December Amendments has been held in abeyance pending further discovery. See Order of September 1, docket no. Thus, only the issues pertaining to the January Amendments and the motion to strike filed by Doctor John's concerning the City's supplemental appendix are now before the court. The court was occupied during April, May, and June with the trial of the second of two death-penalty cases on its docket, and has since been occupied with the backlog of criminal cases with speedy trial requirements resulting from the lengthy trials in both of its death-penalty cases, as well as with preparation of an extensive ruling, filed at the end of July, on the complicated issues in the post-trial motions in the first death-penalty case.

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At those oral arguments, Doctor John's was represented by W. Vakulskas of Vakulskas Law Firm, P. The motions presently before the court are now fully submitted. In support of its motion for summary judgment, Doctor John's initially relied almost entirely on the evidence presented at the preliminary injunction hearing. The City, however, submitted copious materials purportedly demonstrating the reasonableness of its conclusion that "secondary effects" warranted its regulation of "adult entertainment businesses," including the Doctor John's store in Sioux City, Iowa.

In reply, Doctor John's submitted new materials in an attempt to rebut the relevance of any such "secondary effects" to its Sioux City store. Finally, the City submitted a supplemental appendix of additional "expert" materials, which Doctor John's has moved to strike.

These materials, taken as a whole, do not ificantly change the factual background concerning the attempt by Doctor John's to open a store in Sioux City and the City's response, as set forth in the court's preliminary injunction ruling. The court will not, however, attempt a dissertation of undisputed and disputed facts, but only a statement of sufficient facts to put in context the parties' arguments concerning their cross-motions for summary judgment.

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At some time in the fall ofDoctor John's leased property located at Singing Hills Boulevard, Sioux City, Iowa, for one of its stores, its first such store in Iowa. After delays caused by City enforcement of its amended zoning ordinances, Doctor John's opened that store in late February or early Marchpursuant to the court's preliminary injunction ening enforcement of the January Amendments. The Doctor John's store in Sioux City is in a commercial area across from a Wal-Mart, adjacent to a strip mall, a chiropractor's office, and a nail salon, and near various restaurants and motels, a minor league baseball stadium, a park with little league or softball fields, a bowling alley, and an ice-skating rink.

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The Doctor John's store in Sioux City sells a variety of merchandise, including primarily lingerie, swim wear, women's shoes, lotions, and oils, as well as games, novelty items, and "marital aids" or "adult toys," including, for example, vibrators, "dildos," "masturbation toys," and blow up dolls some described as "anatomically correct".

Doctor John's reiterates in the litigation of the summary judgment motions its contention that its stores, in Sioux City and elsewhere, sell a variety of products deed to appeal to couples who wish to enhance their love lives. Consequently, Doctor John's opines that it is more properly described as a "romance shop" than a "sex shop. This court observed in its ruling on the motion by Doctor John's for a preliminary injunction that several photographs of the Doctor John's store in Sioux City, which were shown to the court for "illustrative" purposes during the preliminary injunction hearing, revealed a handsome freestanding building with an interior display of swimsuits and lingerie that dominates the first impression of the store.

This merchandise is presented very much in the same manner as it would be in most national brand name clothing stores, which have become ubiquitous at malls across urban and suburban America. Thus, the first impression of the store is a far cry from the first image that most people would likely have of an "adult book store" or "sex shop.

In fact, from a quick drive-by, one would likely assume that the business was a rather upscale retail store for women's clothing and accessories.

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There are no "adult" s or banners proclaiming "peep shows," "live entertainment booths," "XXX movies," "live models," "adult massage," or any of the other tasteless come-ons all too familiar from adult entertainment stores that exist in virtually every American city of any size and which one may find scattered along interstates and highways even in rural America. The store has approximately 6, square feet of retail space and Ms. Bolton, who testified that she "run[s] the stores" for Doctor John's, testified at the preliminary injunction hearing that 75 to 80 percent of the store would be devoted to lingerie and swim wear, somewhere around 20 percent to lotions, oils, etc.

Bolton testified that all or nearly all of the videos at the Sioux City store would be "adult videos," and Doctor John's has submitted no additional evidence to the contrary as part of the summary judgment record. Although Ms. Bolton did not testify to an estimated percentage of total stock-in-trade that would be devoted to "novelties" or "adult toys," and explained that she could not say what percentage of "novelties" would be considered "adult," she did testify that 75 to 80 percent of the store's total stock would be "non-adult products.

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Bolton also testified that Doctor John's would be willing to adhere to any limitation imposed by the court or the City on the percentage of "adult" items that could be sold in the store at its present location. Doctor John's has not retreated from that position in the litigation of the current cross-motions for summary judgment. The parties dispute whether Ms. Bolton's projections about the stock at the Sioux City store are borne out by the actual merchandise now in that store. I, Ex. Inexplicably, Doctor John's did not submit any affidavit countering these estimates with specific estimates of its own concerning either percentages of stock-in-trade or retail floor space devoted to the display of certain of items, leaving the court to infer from other evidence what the percentages might be.

The court notes that the record is also silent as to how either party computed percentages of stock-in-trade, whether by of actual inventory items, by dollar value wholesale or retailby net or gross sales receipts, or by some other calculation. The only photographs of the merchandise in the Doctor John's store in Sioux City submitted by the City as part of the summary judgment record are close-ups of packages of "sex toys," including phallus-shaped "ribbed massagers," vibrators and similar devices, male masturbation devices, "anal sleeves," "clit jewelry," nipple jewelry, sex videos featuring "foreplay," "oral" sex, "anal" sex, and "cumshots," and racks of such items.

On the other hand, the only photographs of the merchandise in the store submitted by Doctor John's as part of the summary judgment record are panoramic shots of the store's interior showing racks and racks of swimsuits, lingerie, shoes, purses, knick-knacks in the shapes of cavorting dolphins, etc. II, at uned s Minors are not admitted to Doctor John's stores, because as Ms. Bolton testified at the preliminary injunction hearing, Doctor John's "d[oesn't] believe that children should be in a store that carries adult material.

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Bolton testified that Doctor John's checks for proof of age and identity of everyone who comes into its stores to enforce its self-imposed ban on minors. The parties do not dispute that Doctor John's has actually enforced the "no minors" rule at the Sioux City store.

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Sioux City Municipal Code The BG zone is intended to provide business locations for retail, service and wholesale uses serving a city-wide clientele. The zone is intended to be located in areas characterized by good accessibility, including those areas which are heavily exposed to automobile traffic.

The permitted uses, permitted accessory uses and the permitted conditional uses shall be the same as the zone upon which the C zone is overlaid, except that this range of uses may be reduced by the terms of an approved planned development concept plan or an approved planned development site plan if no concept plan is required. However, Sioux City Municipal Code Adult entertainment businesses, as defined in chapter All nonconforming uses in the BG business zone may continue in operation under the provisions of Chapter All permits required herein shall be applied for within thirty days from the effective date of the ordinance codified in this chapter.

All uses not specifically enumerated as permitted uses in the BG zone are prohibited, subject to the right, set forth in Subchapter VII of Chapter The following are examples of adult entertainment businesses but the list is not to be considered exclusive: adult book stores; adult motion picture theaters; adult video stores, model studios, introductory services, and escort service bureaus.

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Prior to October 27,"adult book store" was defined as follows:. Similarly, prior to October 27,an "adult video store" was defined as follows:.

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Such inventory must be offered in an area segregated by a gate or door and monitored and indicated as being off-limits to minors. Under this ordinance, "substantial" was defined to mean "more than twenty-five percent of the book, periodical, magazine or video inventory are [sic] distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. Thus, this ordinance defined "adult entertainment businesses" by application of a "percent rule," under which businesses with twenty-five percent or more of their media stock-in-trade in "adult" media were "adult entertainment businesses," and consequently, were banned from general commercial zones of Sioux City.

Prior to setting up its store in Sioux City, Doctor John's representatives had some contact with the City Attorney concerning zoning requirements for the intended location of that store, in the course of which Doctor John's representatives indicated a willingness to adhere to the then-existing "percent rule. However, before Doctor John's could complete preparations to open its store in Sioux City, Sioux City's zoning requirements for "adult entertainment businesses" underwent ificant amendment.

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The "Moratorium" Amendments. Defendants' Summary Judgment Appendix docket no. In a newspaper article published November 11,the City Attorney, James Abshier, was quoted as saying, "What prompted [the moratorium] was some discussion I had with Doctor John's representatives" in which those representatives "told me they would be happy to live with the 25 percent limitation instead of stocking their business with all adult items. Abshier, dated November 10,indicates that Doctor John's had represented that its store would comply with the "percent rule" imposed by the existing ordinances and suggested that a moratorium would be appropriate to "preserve the integrity of the review process.

The moratorium amendment itself indicates that it was based on the City Council's findings that it had been advised and believed that the existing ordinance was "incomplete and inadequate in that it fails to regulate all aspects of the adult entertainment business," that the existing ordinance inadequately regulated the locations at which adult entertainment businesses might locate, and that it was in the public interest to study zoning regulations to ensure their effectiveness, validity, and constitutionality.

Ordinance was amended on November 10,by Ordinancebut that amendment did not alter the "sunset" date of January 5,for the moratorium.

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