Agenda - Planning Commission - 10/06/1998

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Page 2-- September 10, 1998 Z.B. Adult Entertainment m State bans nude entertainment at all businesses Citation: Farkas v. Miller, 8th U.S. Circuit Court of Appeals, No. 98-1089 (1998) The 8th Circuit has jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota Iowa amended a state statute, making it a serious misdemeanor for any owner or manager of any business needing a sales tax permit to allow the actual or simulated public performance of any sex act, the exposure of genitals or buttocks of waitstaff, or the exposure of the "female breast nipple of any person who acts as an entertainer." The statute essentially required erotic dancers to wear G-strings and pasties during their performances. Before the amendment, the statute directed its pro- hibitions only at businesses that held liquor licenses. By applying the prohibi- tions to any business that needed a sales tax permit, the statute closed a loop- hole in the old version for so-called "juice bars." Farkas, Bryson, and Washington owned three of the four juice bars in the state. All the clubs offered nude dancing without violating the original statute because none served alcohol. The club owners sued the state, arguing the amended statute violated the First Amendment's guarantee of free speech. According to an earlier U.S. Supreme Court decision, a regulation burden- ing expressive activity such as public nudity was justified if the regulation was within the constitutional power of the government and furthered an important or substantial government interest, the government interest was unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment rights was no greater than necessary to further that interest. The clubs claimed that the Supreme Court's decision didn't apply to them because the Supreme Court was referring to a general law prohibiting public nudity, while Iowa's law specifically targeted nude dancing in juice bars. They also claimed the new statute was unconstitutionally vague because it didn't clearly define the statute's "theater" exception or the meaning of "simulated sex act" or "public performance." The court found the statute was constitutional, and the club owners appealed. DECISION: Affirmed. The amendment didn't violate the First Amendment. The law was clearly within the state's power, and furthered a substantial state interest in preventing the harmful secondary effects, of nudity in adult entertainment. Furthermore, the state's interest in reducing the secondary effects associated with nude dancing was unrelated to the suppression of free expression. Likewise, the requirement that dancers in juice bars wear G-strings and pasties restricted the dancers' expression no more than necessary to achieve the state's purpose. This applied equally to the statutory ban on public perfor- mances of actual or simulated sex acts. The amendment wasn't too vague. It was clear enough to provide a person