The Iowa League of Cities and the Metropolitan Coalition are seeking to change a state law that pre-empts cities from regulating nude dancing in a theater by establishing that cities have authority to decide the time, place and manner in which adult entertainment occurs.
The regulatory dispute stems from a 2012 Iowa Supreme Court ruling in which the divided justices concluded that state law conflicted with a local ordinance in Hamburg that prohibited nude dancing and alcohol consumption at sexually-oriented businesses.
The city of Hamburg’s ordinance also required seminude employees to remain six feet away from customers.
In enjoining the city from enforcing its ordinance, the justices said state law superseded the local regulation — but the court didn’t say the ordinance’s restrictions were unconstitutional.
The coalition of cities succeeded during the last legislative session in winning Iowa House approval of a bill that would allow local governments, such as cities and counties, to pass ordinances that prohibit nudity in local businesses.
However, the measure stalled in the Iowa Senate, and city officials hope to make another run at getting the legislation to Gov. Terry Branstad’s desk during the 2014 election-year session.
Municipalities currently only can regulate strip clubs through city zoning laws or sales tax rules that bar alcohol sales by businesses that allow public nudity.
Backers of House File 359 said the change would allow cities to regulate certain sexually explicit conduct to the extent that such activities are perceived as having adverse social and economic effects.
Jay Gourley, the mayor of Corwith, said zoning authority alone was not effective when his town of 309 residents was confronted with a performing arts studio that moved into an old restaurant building in the middle of the business district. He said eventually a dispute over a fire code inspection between the building owner and strip club operator closed the studio.
“Basically in the code of Iowa, there is very little that you can do to keep this type of activity out of your community,” said Gourley, noting that strip clubs manage to “operate on the fringes” of First Amendment free-expression protections.
“I think that file should be passed” by the Legislature, he added. “It gives us more home rule over adult entertainment, and that’s a positive thing.”
Sen. Rob Hogg, D-Cedar Rapids, chairman of the Senate Judiciary Committee, said the bill stalled in the Senate due to concerns within the majority-party caucus that the bill was overly broad and potentially would allow cities to regulate otherwise legitimate artist conduct.
“Personally I think it would be better if we didn’t have facilities like this. They’re not good for our economy, and they’re demeaning for people who work there,” Hogg said.
“I’d like to see it pass,” he added. “I think that cities ought to be able to regulate the working conditions and other things with these types of adult entertainment facilities.
“But they’ve got to get it drafted well and make the case.”
Barry Lindahl, Dubuque’s city attorney, said one problem with Iowa’s law is it prohibits nude or seminude dancing in establishments that have a sales tax permit. Most strip club operators have found ways to avoid selling anything on the premise, so regulations don’t apply, he said.
“We believe there’s a gap there in the law that needs to be filled,” Lindahl said. “Right now, there is no prohibition at all.”
The proposed legislation would make it clear that cities are not pre-empted from adopting regulations governing nude or seminude dancing, and it would be up to individual cities to decide how they would deal with their local situations, he added.
But therein lies the problem, said Rita Bettis, a lobbyist for the American Civil Liberties Union of Iowa, which opposes the bill and supports regulating nude performances at the state level. She contended allowing cities and counties to pre-empt state law would lead to a “labyrinth” of local regulations — some that would not infringe on free expressions and others that would impose inappropriate censorship.
“It’s important that the state have uniformity,” she said, to protect against the overbroad application of the obscenity law to protected activities that have literary, scientific, artistic or political values. “We think there is a reason and wisdom in the current structure.”
City officials concede that the proposed change is not being driven by a proliferation of strip clubs popping up around Iowa, but Lindahl said that might just be because it’s not widely known how open Iowa’s situation is.
“The problem is the door is open,” Lindahl said.
Hogg said there isn’t anything that makes the strip-club bill an urgent issue as legislators’ formulate their 2014 agendas. He said “if push came to shove” he believed the bill would have passed last session.
“I don’t know if push will come to shove on this bill because I don’t think it’s that big of a deal,” he said. “I don’t see it as a crisis confronting our state.”
Sen. Herman Quirmbach, D-Ames, said he opposed the measure that appears to be a solution in search of a problem.
“For people who don’t like that kind of thing, there’s an easy response. Don’t go in the front door,” he said.
Quirmbach said he does not want to create a situation where a touring company for a theatrical production that includes nudity, such as “Hair” or “Oh! Calcutta!,” might play to raves in one Iowa community and trigger arrests in another due to a patchwork of local regulations.
“We should have one First Amendment, and it should protect every Iowan’s rights equally no matter where they live in the state. We don’t want to get into a situation where we have 99 different little First Amendments in 99 different counties or 900-something cities,” Quirmbach said.
“If they have some particular thing that they believe is obscene, that they think should be banned in one community, well, bring it to us at the Legislature. If it really is obscene, let’s ban it statewide,” he added.