Mall Real Estate, L.L.C., an Iowa Limited Liability Company v. City of Hamburg, an Iowa Municipal Corporation

IN THE SUPREME COURT OF IOWA
No. 10–0898

Filed July 27, 2012

MALL REAL ESTATE, L.L.C.,
an Iowa Limited Liability Company,

Appellant,

vs.

CITY OF HAMBURG, an Iowa
Municipal Corporation,

Appellee.

Appeal from the Iowa District Court for Fremont County, Greg W.

Steensland, Judge.

An establishment appeals an order denying its request for an

injunction enjoining a city from enforcing an ordinance regulating nude

dancing. REVERSED AND REMANDED WITH INSTRUCTIONS.

W. Andrew McCullough, Midvale, Utah, and Brian B. Vakulskas
and Daniel P. Vakulskas of Vakulskas Law Firm, Sioux City, for

appellant.

Raymond R. Aranza of Scheldrup Blades Schrock Smith Aranza,

P.C., Cedar Rapids, for appellee.
 2

WIGGINS, Justice.

The operator of an establishment offering nude and seminude

dance performances sought an injunction restraining a city from

enforcing its ordinance regulating nude and seminude dancing. The

district court found that state law did not preempt the ordinance and

that the ordinance was constitutional. On appeal, we find that state law

preempts enforcement of the ordinance and that it is unenforceable

against the establishment. Accordingly, we reverse the judgment of the

district court and remand the case with instructions to the court to enter

an order enjoining the city from enforcing its ordinance against the

establishment.

I. Background Facts and Proceedings.

On December 8, 2008, the Hamburg city council passed chapter

48 of its city code. The ordinance, known as the “Sexually Oriented

Business Ordinance,” contains provisions relating to licensing and

zoning and imposes a range of regulations upon sexually oriented

businesses. The stated purpose of the ordinance is to “regulate sexually

oriented businesses in order to promote the health, safety, morals, and

general welfare of the citizens of the City, and to establish reasonable

and uniform regulations to prevent the deleterious secondary effects of

sexually oriented businesses.” Hamburg, Iowa, Code § 48.010.01 (Dec.

8, 2008). The ordinance also states, “[I]t is neither the intent nor effect of

this ordinance to restrict or deny access by adults to sexually oriented

materials protected by the First Amendment to the Constitution of the

United States of America . . . .” Id.

Businesses subject to the terms of the ordinance include adult

cabarets, which the ordinance defines, among other things, as any

“business or entity that is with the emphasis on observation or viewing of
 3

nude or semi-nude performances whether the performers receive

compensation or not, that regularly features persons who appear nude or

semi-nude.” 1 Id. §§ 48.020.02, .030. The ordinance requires a sexually

oriented business to have a valid sexually oriented business license and

an employee of a sexually oriented business to have a valid sexually

oriented business employee license. Id. § 48.040.01–.02. Further, the

ordinance regulates many aspects and activities of sexually oriented

businesses, including the consumption of alcohol on the premises,

exterior portions of the businesses, signage, hours of operation, the

exhibition of sexually explicit films, live nudity, and siting. See id.

§§ 48.085–.087, .130–.150, .180, .200.

For example, the ordinance prohibits the possession or

consumption of alcoholic beverages by any person on the premises of a

sexually oriented business. Id. § 48.085. The ordinance also prohibits

any person from intentionally or knowingly appearing in a state of nudity

1The ordinance also classifies adult bookstores, adult novelty stores, adult video
stores, adult motels, adult motion pictures theaters, and seminude model studios as
sexually oriented businesses. Hamburg, Iowa, Code § 48.030 (Dec. 8, 2008). Further,
the ordinance defines “nudity or a state of nudity” as:
The showing of the human male or female genitals, pubic area, vulva,
anus, anal cleft, or cleavage with less than a fully opaque covering, or the
showing of the female breast with less than a fully opaque covering of
any part of the nipple and areola.
Id. § 48.020.14. Finally, the ordinance defines “semi-nude or state of semi-nudity” as:
A state of dress in which opaque clothing covers no more than the
genitals, anus, anal cleft, cleavage, pubic area, vulva, as well as the
nipple and areola of the female breast, as well as portions of the body
covered by supporting straps or devices. This definition shall not include
any portion of the cleavage of the human female breast exhibited by a
dress, blouse, skirt, leotard, bathing suit, or other wearing apparel
provided that the areola and nipple are not exposed in whole or in part.
Id. § 48.020.18.
 4

or from intentionally or knowingly violating Iowa Code section 728.5.2

Id. § 48.180.01. Similarly, the ordinance contains requirements that

seminude employees remain more than six feet away from customers and

on a stage at least two-feet high. 3 Id. § 48.180.02. It also prohibits the

exchange of gratuities between customers and seminude employees and

prohibits intentional contact between customers and seminude

employees. Id. § 48.180.03, .04. Moreover, it restricts the size, number,

and shape of a sexually oriented business’s signage, places restrictions

on the content of such signs, and regulates the font and color scheme of

such signs. Id. § 48.087.

The City imputes violations of the ordinance to the sexually

oriented business licensee. Id. § 48.190. If a sexually oriented business

licensee violates the ordinance or knowingly allows an employee to

violate the ordinance, then the City may suspend the license of the

business and the employee. Id. § 48.090. The ordinance also provides

for the revocation of a sexually oriented business license. For example,

the City may revoke a sexually oriented business license for activity on

the premises related to controlled substances, alcohol, prostitution, acts

of specified sexual activity, conduct negatively affecting the health,

safety, or welfare of the citizens of Hamburg, or conduct otherwise in

violation of the ordinance. Id. § 48.100.

Clarence Judy and Terry Rutledge own Mall Real Estate. Mall Real

Estate leases space located at 701 Main Street in Hamburg to the

2Iowa Code section 728.5 prohibits total nudity in places of business required to
obtain a sales tax permit. Iowa Code § 728.5 (2009). The Eighth Circuit Court of
Appeals held section 728.5 does not violate the First Amendment to the United States
Constitution. See Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998).
3The ordinance’s definition of “employee” includes performers. Hamburg, Iowa,
Code § 48.020.11.
 5

Hamburg Theatre for the Performing Arts, which has been open for nine

years and is also known as Shotgun Geniez. Mall Real Estate operates

the parking lots surrounding the Hamburg Theatre. Persons who wish to

enter the Hamburg Theatre must pay an individual parking fee to Mall

Real Estate. Performers at the Hamburg Theatre perform nude,

seminude, and fully clothed. At times during performances, performers

physically contact customers, often by sitting in their laps. The

performers also spend time talking to customers. The Hamburg Theatre

does not have a liquor license or sell alcohol, but it does allow customers

to supply their own alcohol. Judy believes the customers at the

Hamburg Theatre come to see nude dancing, get lap dances, and

converse with the performers.

Judy testified the Hamburg Theatre does its best to ensure the

customers and performers comply with the law. He further testified the

Hamburg Theatre does its best to ensure minors do not enter. Hamburg

Theatre employees have caught minors attempting to enter the club and

turned them away. The Hamburg Theatre gives customers younger than

twenty-one years old but older than eighteen years old a glow-in-the-dark

wristband to signify they are not permitted to consume alcohol. Further,

club employees keep watch to make sure no one with a wristband

consumes alcohol. Performers must provide identification proving their

age, but are otherwise free to perform in whatever manner they wish

provided they comply with any applicable laws while in the Hamburg

Theatre.

Judy estimates in excess of 112,000 customers have been to the

Hamburg Theatre during the past nine years. The Hamburg Theatre has

never been cited by police for unsightly litter, and no one in the club has

been cited for engaging in sex acts on the premises or for purchasing or
 6

selling drugs. However, on one occasion the police cited a minor as a

minor in possession of alcohol at the club. In addition, a seventeen-year-

old once danced on stage, but the Hamburg Theatre was acquitted of any

wrongdoing. There was also one case of alleged prostitution, which was

dismissed. Seven or eight incidents involving the club have resulted in

police reports. In defense of the Hamburg Theatre, Judy constructed a

list of all calls to police that had been made within 1000 feet of the

business since 2002, noting that only a few actually pertained to the

Hamburg Theatre.

Shortly after the City adopted the ordinance, Mall Real Estate filed

a petition seeking a declaratory judgment declaring that the City’s

ordinance does not affect or apply to the Hamburg Theatre and that the

ordinance is unconstitutional. Mall Real Estate further requested a

temporary injunction restraining Hamburg from enforcing the ordinance

against the Hamburg Theatre.

The district court denied Mall Real Estate’s request for declaratory

and injunctive relief, holding the ordinance affected and applied to the

Hamburg Theatre and was constitutional. Mall Real Estate filed a notice

of appeal. The district court stayed enforcement of the ordinance

pending the outcome of this appeal. On appeal, Mall Real Estate argues

the ordinance does not apply to the Hamburg Theatre, conflicts with

state law, and violates the Iowa Constitution. Mall Real Estate bases its

preemption argument on its assertion that the Hamburg Theatre is a

theater for the purposes of Iowa Code section 728.5 (2009). 4 The City

asserts it may pass valid zoning and licensing regulations. At trial, the

parties agreed the sections of the ordinance relating to zoning would not

4All references to the Iowa Code are to the 2009 Code unless otherwise noted.
 7

affect Mall Real Estate because the Hamburg Theatre preexisted the

ordinance. Therefore, we have no reason to consider any part of the

ordinance related to zoning.

II. Issues.

Because the issue of whether state law preempts the City’s

ordinance is dispositive of this appeal, we need not reach the

constitutional issues raised.

III. Scope of Review.

We review whether state law preempts a municipal ordinance for

correction of errors of law because it is a question of statutory

construction. Hensler v. City of Davenport, 790 N.W.2d 569, 578 (Iowa

2010).

IV. Whether the Iowa Code Preempts the Hamburg Ordinance.

Mall Real Estate asserts the Hamburg ordinance conflicts with

state law because section 728.5 contains a theater exception and the

Hamburg ordinance does not. Mall Real Estate bases this argument on

two other district court decisions that the district court distinguished as

dealing with different statutes under different facts and circumstances.

The City responds by arguing section 728.11 allows local governments to

pass ordinances related to zoning and licensing of such businesses.

Section 728.5 exempts theaters from the statewide ban of public

nudity. See Iowa Code § 728.5. Section 728.11 contains a uniform

application provision. It provides:

In order to provide for the uniform application of the
provisions of this chapter relating to obscene material
applicable to minors within this state, it is intended that the
sole and only regulation of obscene material shall be under
the provisions of this chapter, and no municipality, county
or other governmental unit within this state shall make any
law, ordinance or regulation relating to the availability of
obscene materials. All such laws, ordinances or regulations
 8
shall be or become void, unenforceable and of no effect on
January 1, 1978. Nothing in this section shall restrict the
zoning authority of cities and counties.

Id. § 728.11.

In construing statutes, our goal is to ascertain legislative intent.

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). In

doing so, we consider the language the general assembly used in the

statute, the object the general assembly sought to accomplish, and the

wrong the general assembly sought to remedy. Swainston v. Am. Family

Mut. Ins. Co., 774 N.W.2d 478, 482 (Iowa 2009). When the general

assembly places preemption language in more than one relevant section

of the chapter, we must consider both sections together in order to

ascertain the general assembly’s intent. See Feld v. Borkowski, 790

N.W.2d 72, 83–85 (Iowa 2010) (Appel, J., concurring in part and

dissenting in part) (explaining that we may examine an issue that is

inextricably intertwined with another issue). Here, the general assembly

has placed preemption language in sections 728.5 and 728.11. See Iowa

Code §§ 728.5 (excepting theaters from the provisions of this section), .11

(stating chapter 728 shall be the sole regulation of obscene material in

the state). Therefore, we must look at these statutes together to
determine whether state law preempts the Hamburg ordinance.

The Iowa Constitution was amended in 1968 to provide municipal

governments with limited powers of legislative home rule. Iowa Const.

art. III, § 38A. The home rule amendment provides:

Municipal corporations are granted home rule power
and authority, not inconsistent with the laws of the general
assembly, to determine their local affairs and government,
except that they shall not have power to levy any tax unless
expressly authorized by the general assembly.

The rule or proposition of law that a municipal
corporation possesses and can exercise only those powers
 9
granted in express words is not a part of the law of this
state.

Id. “The purpose of the home rule amendment was to give local

government the power to pass legislation over its local affairs subject to

the superior authority of the legislature.” Hensler, 790 N.W.2d at 584.

Thus, “[u]nder legislative home rule, the legislature retains the unfettered

power to prohibit a municipality from exercising police powers, even over

matters traditionally thought to involve local affairs.” City of Davenport v.

Seymour, 755 N.W.2d 533, 538 (Iowa 2008).

Courts have developed the doctrine of preemption to determine

whether the legislature permits or prohibits municipal action. Id. Under

the doctrine, municipalities generally cannot act if the legislature has

directed otherwise. Id. A municipality, however, may set standards

“more stringent than those imposed by state law, unless a state law

provides otherwise.” Iowa Code § 364.3(3); Sioux City Police Officers’

Ass’n v. City of Sioux City, 495 N.W.2d 687, 693 (Iowa 1993).

Nevertheless, “legislative power trumps the power of local authorities”

when the legislature exercises its power. Seymour, 755 N.W.2d at 538.

We have recognized express preemption, implied conflict preemption, and

implied field preemption. Hensler, 790 N.W.2d at 585.

We believe the Iowa Code expressly preempts the City from fully

enforcing its ordinance. “Express preemption applies when the

legislature has explicitly prohibited local action in a given area.” Id.

Express preemption is consistent with the notion that “ ‘[l]imitations on a

municipality’s power over local affairs are not implied; they must be

imposed by the legislature.’ ” Seymour, 755 N.W.2d at 538 (quoting City

of Des Moines v. Gruen, 457 N.W.2d 340, 343 (Iowa 1990)).
 10

We have previously construed section 728.11 to mean that chapter

728 expressly prohibits a municipality from enacting an ordinance

regulating obscenity. In Chelsea Theater Corp. v. City of Burlington, 258

N.W.2d 372 (1977), we examined a 1975 Burlington ordinance “defining

and prohibiting the sale and distribution of obscene material and public

displays of explicit sexual material.” 258 N.W.2d at 373. In response to

the enactment of this ordinance, an “adult” movie theater operator

brought an action against the city to enjoin the enforcement of the

ordinance. Id. The movie theater asked us to determine whether section

728.11’s predecessor, Iowa Code section 725.9 (1975), preempted the city

from enacting an ordinance regulating material that is regulated by the

state. Id. Burlington contended section 725.9 only preempted the city

from enacting an ordinance regulating the dissemination of obscene

materials to minors. Id.

After looking at the legislative history of section 725.9, we

determined section 725.9 was not limited to the dissemination of obscene

materials to minors and instead restricted governmental subdivisions

from enacting any local ordinances regulating conduct covered in chapter

725, now chapter 728. Id. at 374. The United States Supreme Court

had come to the same conclusion when reviewing a conviction from the

United States District Court for the Southern District of Iowa for a

violation of a federal statute prohibiting the mailing of obscene materials.

See Smith v. United States, 431 U.S. 291, 293–95, 97 S. Ct. 1756, 1760–

61, 52 L. Ed. 2d 324, 331–32 (1977) (holding section 728.11’s

predecessor, section 725.9, preempted all local regulation of obscene

materials and was not restricted in application to the dissemination of

obscene materials to minors). Accordingly, in Chelsea Theater, we held
 11

the Burlington obscenity ordinance was irreconcilable with section 725.9

and thus preempted by state law. 258 N.W.2d at 374.

Thus, the scope of section 728.11 is broad. Since our decision in

Chelsea Theater, the general assembly has kept section 728.11 intact.

Section 728.11 continues to provide for the uniform application of the

provisions of chapter 728 relating to materials covered by chapter 728.

By its terms, section 728.11 prohibits local governments from regulating

obscene material or the availability of obscene material. The parties did

not argue nor do we find a reason to overrule our decision in Chelsea

Theater. Moreover, the general assembly has chosen not to overrule

Chelsea Theater. When an interpretation by the court is left undisturbed

by the general assembly for a substantial period, we have to presume the

general assembly agreed with the court’s interpretation. Chi. Cent. &

Pac. R.R. v. Calhoun Cnty. Bd. of Supervisors, 816 N.W.2d 367, 374 (Iowa

2012). Therefore, it is quite evident the Iowa Code preempts any local

regulation of obscene materials. Accordingly, to the extent the Hamburg

ordinance regulates obscene material, it is preempted by state law.

The Hamburg ordinance does not hide its intent to regulate

obscene material. It states, “[I]t is neither the intent nor effect of this

ordinance to restrict or deny access by adults to sexually oriented

materials protected by the First Amendment to the Constitution of the

United States of America.” Hamburg, Iowa, Code § 48.010.01. Because

the ordinance does not seek to regulate materials protected by the First

Amendment, it must necessarily regulate unprotected material. The

category of unprotected speech involved here is obscenity. See Miller v.

California, 413 U.S. 15, 23, 93 S. Ct. 2607, 2614, 37 L. Ed. 2d 419, 430

(1973) (“This much has been categorically settled by the Court, that

obscene material is unprotected by the First Amendment.”).
 12

The inquiry now turns to whether the general assembly intended

section 728.11 to apply to live nude dancing. The City does not argue in

its brief that live nude dancing is outside the scope of section 728.11.

Instead, the City’s sole argument is that section 728.11 allows the City to

issue licenses and permits to persons engaged in activity otherwise

covered by the statute. We disagree. The plain language of section

728.11 makes clear that section 728.11 prohibits municipalities,

counties, or other governmental units from enacting laws, ordinances, or

regulations concerning materials regulated under chapter 728. Section

728.11 goes further and states that all such laws, ordinances, or

regulations are void or unenforceable and have no effect. The plain

language of section 728.11 also creates an exception for a local

government’s zoning authority, not for its licensing or permitting

authority. Accordingly, unless a local ordinance is a zoning ordinance, it

is preempted to the extent it regulates material regulated by chapter 728.

See Estate of Ryan v. Heritage Trails Assocs., Inc., 745 N.W.2d 724, 730

(Iowa 2008) (“When the statute’s language is plain and its meaning is

clear, we look no further.”). The parties and the district court recognized

this when the parties agreed and the district court ruled that any part of

the ordinance pertaining to zoning would be unaffected by this lawsuit.

Even though the City does not argue that section 728.11 does not

apply to live nude dancing, we must reach this issue because the

outcome of this case hinges on the applicability of section 728.11 and its

interaction with section 728.5. See Feld, 790 N.W.2d at 85 (Appel, J.,

concurring in part and dissenting in part).

We believe the general assembly intended section 728.11 to apply

to live nude dancing. At the time of our decision in Chelsea Theater, the

Iowa Code did not contain any provisions specifically regulating the
 13

showing of “adult” movies or nude dancing. See Iowa Code ch. 725

(1975). The general assembly began regulating nude dancing and “adult”

movie theaters around the time of our decision in Chelsea Theater. See

1976 Iowa Acts ch. 1245(1), § 2505 (codified at Iowa Code § 728.5 (Supp.

1977)). The general assembly made it a serious misdemeanor for an

owner, manager, or person who exercised direct control over a business

holding a liquor license or beer permit to allow nudity or display motion

pictures depicting sex acts or nudity in a licensed premise. Id. The

statute carved out an exception for theaters and performing arts venues

if the displayed nudity or sex act was part of the performance. Id.

After our decision in Chelsea Theater and prior to the passage of

the Hamburg ordinance, the general assembly passed three bills

amending section 728.5. In 1978, the general assembly made the

advertisement of any activity prohibited by the statute a serious

misdemeanor. 1978 Iowa Acts ch. 1068, § 6 (codified at Iowa Code

§ 728.5(6) (1979)). In 1992, the general assembly amended the statute to

criminalize live sex acts by minors. 1992 Iowa Acts ch. 1029, § 1

(codified at Iowa Code § 728.5(7) (1993)).

In 1997, the general assembly expanded the scope of persons who

could be found guilty of a serious misdemeanor from an owner, manager,

or person who exercises direct control over a business holding a liquor

license or beer permit to an owner, manager, or person who exercises

direct control over a business requiring a sales tax permit. 1997 Iowa

Acts ch. 125, § 3 (codified at Iowa Code § 728.5 (Supp. 1997)). The

amendment also stopped regulating the display of motion pictures

depicting sex acts or nudity. Id. The amendment, however, maintained

the exception for theaters. Id. Section 728.5 remained unchanged from
 14

this amendment to the time Hamburg passed its ordinance in 2008. 5 It

prohibits actual or simulated sex acts and nudity in certain

establishments. Iowa Code § 728.5.

These amendments make three important facts clear. First, since

section 728.5 first went into effect in 1977, a provision regulating nude

dancing has always been part of the obscenity chapter of the Iowa Code.

Second, the general assembly has amended the provision regulating

nude dancing three times since its enactment and never removed it from

the obscenity chapter of the Iowa Code. Third, in regulating nude

dancing, the general assembly has continued to exempt theaters. The

City does not contend that Mall Real Estate does not operate a theater.

Nonetheless, an argument can be made that the general assembly

did not intend section 728.11 to apply to live nude dancing because of

the definition of “material” in chapter 728. Section 728.1(3) defines

“material” as the following:

[A]ny book, magazine, newspaper or other printed or written
material or any picture, drawing, photograph, motion
picture, or other pictorial representation or any statue or
other figure, or any recording, transcription or mechanical,
chemical or electrical reproduction or any other articles,
equipment, machines or materials.

Iowa Code § 728.1(3). We acknowledge the commentators who have

opined the restriction on local government regulation of obscenity does

not appear to apply to live performances because the definition of

“material” in section 728.1(3) does not appear to include live

performances. See 4 John L. Yeager & Ronald L. Carlson, Iowa Practice:

5In 2010, the general assembly amended the statute again. See 2010 Iowa Acts
ch. 1078, § 2 (codified at Iowa Code § 728.5 (2011)). This amendment renumbered the
subsections of section 728.5 and made the theater exception inapplicable to certain
portions of the statute. See id.
 15

Criminal Law and Procedure § 640, at 159–60 (1979). However, these

same commentators also acknowledge it was the general assembly’s

intent to regulate live performances and believe the failure of the general

assembly to include live performances in the definition of “material” in

section 728.1(3) “was in all probability an oversight.” Id. § 631, at 156.

We agree that the general assembly intended to regulate live

performances as part of the “material” regulated by chapter 728.

However, for the reasons explained below we disagree with these

commentators’ opinion that the definition of “material” does not include

live performances.

It is not unusual for an obscenity statute to explicitly include live

performances within the scope of the term “material” or “materials.” See,

e.g., Waterman v. Farmer, 84 F. Supp. 2d 579, 580–81 (D.N.J. 2000)

(interpreting a New Jersey statute that included live performances in the

definition of “sexually oriented material”); State v. Sorabella, 891 A.2d

897, 930 (Conn. 2006) (interpreting a statute defining “child

pornography” as “any material involving a live performance or

photographic or other visual reproduction of a live performance which

depicts a minor in a prohibited sexual act”); Ferrari v. Commonwealth,

859 N.E.2d 808, 810 & n.6 (Mass. 2007) (noting the definition of “matter”

includes live performances for the purposes of a criminal statute

prohibiting the dissemination of certain material to minors); State v.

Foglia, 440 A.2d 16, 16 (N.J. Super. Ct. App. Div. 1981) (interpreting a

statute criminalizing the sale of obscene material to minors where the

definition of “obscene material” included “live performance”); State v.

Bahl, 193 P.3d 678, 689 n.8 (Wash. 2008) (en banc) (noting the statutory

definition of “erotic materials” includes live performances). Although

Iowa Code section 728.1(3) does not specifically mention “live
 16

performances,” it is clear from the above cases that the term “material” is

often defined to include live performances, particularly when the term is

used in an obscenity statute. The question becomes whether the phrase

“or any other . . . materials” in Iowa Code section 728.1(3) should be

interpreted to include live performances even though the legislature did

not explicitly mention live performances.

In order to go outside of the plain language of section 728.1(3), we

must find an ambiguity in the statute. See Estate of Ryan, 745 N.W.2d

at 730. To determine whether a statute is ambiguous, we apply the

following rules:

A statute is ambiguous if reasonable minds could differ or be
uncertain as to the meaning of the statute. Ambiguity may
arise from specific language used in a statute or when the
provision at issue is considered in the context of the entire
statute or related statutes.

Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 424–25

(Iowa 2010) (citations and internal quotation marks omitted). We also
interpret statutes in such a way that portions of it do not become

redundant or irrelevant. State v. Gonzalez, 718 N.W.2d 304, 308 (Iowa

2006). Additionally, we do not place undue importance on any single or

isolated portion, but instead consider all parts of an enactment together.

Swainston, 774 N.W.2d at 482. The general assembly did not enact

section 728.1 in isolation, but rather as one piece of the legislation that

contained the original provisions of chapter 728. See 1976 Iowa Acts ch.

1245(1), §§ 2505, 2801–10 (codified at Iowa Code ch. 728 (Supp. 1977)).

On its face, section 728.1(3)’s definition is recursive. A defining

term of “material” is “or any other . . . materials.” A recognized definition

of “material” is “a performer’s repertoire.” Merriam-Webster’s Collegiate

Dictionary 765 (11th ed. 2005). This definition would include live
 17

performances, including nude and seminude dancing. However, one

could also reasonably conclude “material” refers to inanimate objects,

such as a table or book. Thus, reasonable minds could differ as to the

meaning of “materials” when it is used to define the term “material.”

Ordinarily, we would apply the “canon of construction noscitur a sociis,

which summarizes the rule of both language and law that the meanings

of particular words may be indicated or controlled by associated words.”

Peak v. Adams, 799 N.W.2d 535, 547 (Iowa 2011) (citation and internal

quotation marks omitted). Applying this canon, we would examine the

longer phrase: “or any other articles, equipment, machines or materials.”

Application of this canon could lead one to conclude that the defining

term “materials” must refer to inanimate objects. However, we cannot

apply this canon if its application thwarts legislative intent or makes the

general words meaningless. 2A Norman J. Singer & J.D. Shambie

Singer, Statutes and Statutory Construction § 47:16, at 355 (7th ed.

2007); accord Wright v. State Bd. of Eng’g Exam’rs, 250 N.W.2d 412, 414

(Iowa 1977). For several reasons, we believe this is one of those

occasions when the canon is not applicable.

First, application of the canon would lead to an absurd result that

would thwart the legislative intent. See Harden v. State, 434 N.W.2d

881, 884 (Iowa 1989) (“We seek a reasonable interpretation that will best

effect the purpose of the statute and avoid an absurd result.”). In

chapter 728, the general assembly prohibited any person from

disseminating obscene material to minors. See Iowa Code § 728.2. One

of the practical effects of this limitation is that it prohibits the operator of

an adult movie theater displaying films containing obscene sex acts from

displaying such films to a minor. Indeed, the movie theater operator is

prohibited from even admitting a minor to the premises. Id. § 728.3.
 18

However, if we did not construe “material” to include live performances,

then that same minor could view the same obscene sex act live in an

establishment falling under the theater exception of section 728.5. We

find it hard to believe the general assembly intended to permit minors to

view live obscene sex acts but prohibit them from viewing the same

obscene sex act on a movie theater screen. Thus, to construe the

definition of “material” to not include live performances would thwart

legislative intent.

Second, “or other . . . materials” must necessarily mean something

unique from the rest of the defining terms. The list of items contained in

section 728.1(3) is all-inclusive. It covers all conceivable inanimate

objects that could constitute “material” for the purposes of the obscenity

chapter. If the legislature did not give “or other . . . materials” a meaning

other than an inanimate object, the word would become surplusage. See

Iowa Auto Dealers Ass’n v. Iowa Dep’t of Revenue & Fin., 301 N.W.2d

760, 765 (Iowa 1981) (stating that we give effect to all the words in the

statute unless no other construction is reasonably possible). Therefore,

“or other . . . materials” must refer to something other than an inanimate

object, at least in the context of the obscenity chapter.
Third, the uniformity provision in section 728.11 is a strong
indication of the general assembly’s desire to establish statewide
regulation of obscenity. The placement of section 728.5, which pertains
to live performances in the obscenity chapter, is indicative of the general
assembly’s intent to include its regulation of live performances in this
statewide scheme. See In re Det. of Garren, 620 N.W.2d 275, 280 (Iowa
2000) (“The legislature’s intent to enact a civil statute is also implied
from the placement of the [Sexually Violent Predator Act] among code
chapters dealing with the mentally ill . . . .”); State v. Iowa Dist. Ct., 616
 19

N.W.2d 575, 579 (Iowa 2000) (holding the placement of a statute
mandating a minimum sentence for certain felonies in the chapter
governing felonies rather than the chapter governing sentence reduction
indicated a legislative intent to operate as a minimum sentence for felons
and not a restriction on the power of a parole board); see also NLRB v.
Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (“Words are not pebbles
in alien juxtaposition; they have only a communal existence; and not
only does the meaning of each interpenetrate the other, but all in their
aggregate take their purport from the setting in which they are used.”).
We must read chapter 728 as a whole. By including within the obscenity
chapter a section pertaining to live performances of a sexual nature, it is
reasonable to infer based on the particular characteristics of chapter 728
that the general assembly intended live performances to be within the
scope of the term “or other . . . materials.”
Finally, the underlying issues in this case involve delicate issues of
free speech under the Iowa Constitution. The doctrine of constitutional
avoidance counsels us to construe section 728.1(3) in a fashion to avoid
constitutional issues. See Simmons v. State Pub. Defender, 791 N.W.2d
69, 74 (Iowa 2010); State v. Nail, 743 N.W.2d 535, 539 (Iowa 2007); see
also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345–48, 56 S. Ct.
466, 482–84, 80 L. Ed. 688, 710–12 (1936) (Brandeis, J., concurring)
(famously observing that constitutional adjudication is a matter of “great
gravity and delicacy” and discussing the principles of constitutional
avoidance). In considering whether a local ordinance is preempted under
state law, the preemption question is regarded as a question of statutory
construction. See Puerto Rico Tel. Co. v. Municipality of Guayanilla, 450
F.3d 9, 13 (lst Cir. 2006); N.J. Payphone Ass’n, Inc. v. Town of W. N.Y.,
299 F.3d 235, 239 n.2 (3d Cir. 2002). Thus, unlike an ordinary
preemption case, where a court construes statutes to avoid preemption,
 20

a court faced with an important constitutional question should seek to
interpret statutes in a fashion to avoid constitutional issues.
Accordingly, we find the general assembly intended to include live
performances in the definition of “material” for the purposes of chapter
728. Therefore, to be consistent with our construction of section 728.11
in Chelsea Theater, we must find that section 728.11 preempts the City
from enacting any ordinance regulating nude dancing in a theater. Until
the general assembly amends section 728.11, the City is without
authority to regulate nude dancing. 6 Accordingly, we reverse the
judgment of the district court and remand this case for the court to enter
an order enjoining the City from enforcing its ordinance regulating nude
dancing in the Hamburg Theatre. Our ruling today does not prevent the
City from enforcing its laws or state laws dealing with controlled
substances, prostitution, loitering, littering, the service of alcoholic
beverages to adults or minors, the consumption of alcoholic beverages by
minors, or valid zoning laws.
V. Disposition.
Having found that state law preempts the City of Hamburg’s
ordinance because the ordinance attempts to regulate nude dancing, we
reverse the judgment of the district court and remand the case to the
district court with instructions to enter an order enjoining the City of
Hamburg from enforcing its ordinance against Mall Real Estate.
REVERSED AND REMANDED WITH INSTRUCTIONS.
All justices concur except Cady, C.J., and Waterman, J., who
dissent separately and Mansfield, J., who takes no part.

6
Although we conclude the general assembly intended nude and seminude
dancing to be within the scope of section 728.11, we do not express any opinion as to
the constitutionality of any provision in chapter 728 because it is beyond the scope of
this appeal.
 21
#10–0898, Mall Real Estate, L.L.C. v. City of Hamburg

CADY, Chief Justice (dissenting).
I respectfully dissent from the decision by the majority.

Our legislature intended to regulate obscenity by regulating

“obscene material,” and it sought to do so exclusively through express

preemption. See Iowa Code § 728.11 (2009) (“In order to provide for the

uniform application of the provisions of this chapter relating to obscene

material applicable to minors within this state, it is intended that the

sole and only regulation of obscene material shall be under the

provisions of this chapter . . . .”). To accomplish this regulation, the

legislature enacted chapter 728 and defined both “obscene material” and

“material.” See Iowa Code § 728.1(3), (5). We are ordinarily bound to

follow legislative definitions. Inter-State Nurseries, Inc. v. Iowa Dep’t of

Revenue, 164 N.W.2d 858, 861 (Iowa 1969). The legislative definition of

“obscene material” relates to material that depicts or describes obscene

matters, and the definition of “material” relates to the various mediums

used to depict or describe obscene matter. See Iowa Code § 728.1(3), (5).

These definitions express the scope of the regulation intended by the

legislature, as well as the scope of preemption of local regulation.

The legislature defined the term “material” by listing five categories

of material containing twenty-one or more specific items:

1. “[A]ny book, magazine, newspaper or other printed
or written material”;
2. “[A]ny picture, drawing, photograph, motion
picture, or other pictorial representation”;
3. “[A]ny statue or other figure”;
4. “[A]ny recording, transcription, or mechanical,
chemical, or electrical reproduction”;
5. “[A]ny other articles, equipment, machines or
materials.”
 22

See id. § 728.1(3). The question of statutory interpretation in this case is

whether this definition includes the act of nude erotic dancing by a live

performer. The majority concludes the legislature intended for nude

dancing to be included within the meaning of the word “materials.” In

other words, in the judgment of the majority, “materials” means a dancer

to our legislature. This conclusion not only defies common sense, it

defies our accepted rules of construction.

Two intrinsic aids are commonly used to find the legislative intent

of statutes that define a particular concept by using a list of descriptive

words. The first aid is the noscitur a sociis doctrine, which provides that

the meaning of ambiguous words is determined by reference to their

relationship with associated words and phrases. Peak v. Adams, 799

N.W.2d 535, 547–48 (Iowa 2011) (describing noscitur a sociis as a canon

of construction that “ ‘summarizes the rule of both language and law that

the meanings of particular words may be indicated or controlled by

associated words’ ” (quoting 11 Richard A. Lord, Williston on Contracts

§ 32:6, at 432 (4th ed. 1999))). The coupling of words ordinarily denotes

an intention that the words should be understood in the same general

sense. 2A Norman J. Singer & J.D. Shambie Singer, Statutes and

Statutory Construction § 47:16, at 353 (7th ed. 2007) [hereinafter Singer].

In other words, the meaning of a word is judged by the company the

word keeps. State v. Merino, 915 P.2d 672, 691 (Haw. 1996). The

doctrine was perhaps most colorfully explained by Lord Macmillan as

“words of a feather flock together.” Hugh Pattison Macmillan, Rt. Hon.

Lord, Law and Language, Presidential Address to the Holdsworth Club

(May 15, 1931).

The noscitur a sociis doctrine is accepted in the law to discern

legislative intent because it reflects the accepted way people write and
 23

speak about a particular topic. Good communication is built by weaving

a set of words together to create what linguists call semantic fields,

words that share a common meaning and allow the topic to be

understood as a connected text rather than a disconnected thought.

Just as good writing seeks to eliminate unrelated words because they

confuse the message, good interpretation seeks to construe ambiguous

words as connected, not unrelated.

If, for the moment, the disputed word in this case—materials—is

removed from the twenty-one-word list of section 728.1(3), all five

categories and every descriptive word within each category describe

various mediums that can be used to depict or display inanimate

obscene pornography. The mediums listed have been used to create a

multibillion-dollar commercial industry that distributes pornographic

material worldwide. When the word “materials” is then added back into

the definition in section 728.1(3), its meaning is logically derived from its

associated words. Our legislature, like people in general, would not

construct a list of twenty ways to distribute inanimate obscene material

and then add a new topic of animate displays of obscenity to the

definition by adding the word “materials” at the end of the list. Clearly,

the application of the doctrine of associated words would exclude live

performing arts from the definition of “material.” Under the noscitur a

sociis doctrine, the word “materials” would mean any mediums used to

display inanimate obscene pornography not specifically listed.

The second intrinsic aid, ejusdem generis, is a variation of the first

and describes a common drafting technique that allows lawmakers to

capture all of the intended applications of the statute. See 2A Singer

§ 47:17, at 357, 370–73. This doctrine attempts to reconcile the

incompatibility between specific and general words so that all parts of a
 24

statute are construed together, and no words are rendered superfluous.

Id. at 375–76. This maxim treats specific words as expressing a class or

topic and a general word within the same group as a means of extending

the statute to include everything within the class, though not specifically

listed. Id. § 47:18, at 378. The doctrine is not just semantics and formal

logic. Id. at 382. Instead,

[i]t rests on practical insights about everyday language
usage. When people list a number of particulars and add a
general reference like “and so forth,” they mean to include by
use of the general reference not everything else but only
others of the like kind.

Id.

Like the first doctrine, this maxim also reveals our legislature did

not intend to include the act of dancing within the definition of material.

The definition lists only inanimate mediums and concludes with a

catchall category of “any other articles, equipment, machines or

materials.” See Iowa Code § 728.1(3) (emphasis added). The ejusdem

generis doctrine reveals the legislature used the last category of more

general words to expand the definition of material to include everything

embraced within the class of medium capable of displaying or depicting

inanimate, obscene pornography. Moreover, the words “articles,”

“equipment,” and “machines” in the catchall category do not describe a

new class of animate means of displaying pornography so that the

meaning of “materials” could include nude dancing. Accordingly, like the

first intrinsic aid, the doctrine of ejusdem generis does not support the

conclusion of the majority. See Fleur de Lis Motor Inns, Inc. v. Bair, 301

N.W.2d 685, 690 (Iowa 1981) (indicating the doctrines of noscitur a sociis

and ejusdem generis normally produce identical results).
 25

I acknowledge that neither of these intrinsic aids should be

followed by courts when there is a clear, contrary legislative intent. Yet,

there is nothing about the statute in question or any other rules of

construction that manifest an intent to regulate the subject of obscenity

in the live performing arts. The contrary conclusion by the majority is, in

its best light, unpersuasive.

First, reasonable people would agree that our legislature could

logically choose to regulate the distribution of inanimate obscene

materials without also regulating obscenity in the live performing arts.

The legislature could, of course, preempt both areas, but the two are not

so compatible that a court interpreting a preemption statute could

conclude it would be absurd to only preempt local regulation of

inanimate obscene materials and not obscene live dancing. In fact, it

makes perfect sense for our legislature to regulate the obscene

pornography industry statewide but permit local government to

participate in the regulation of live nude dancing in their communities.

Live nude dancing raises problems quite different from traffic in

inanimate obscene pornography. Additionally, it would make perfect

sense for our legislature to regulate the distribution of obscene

pornography to minors in the form of film shown by movie theaters and

to leave it to local government to regulate access by minors to places that

provide live adult entertainment. Contrary to the claim of the majority,

such an approach would not mean our legislature would have intended

to permit minors to view live obscene sex acts by excluding live dancing

from the subject in the preemption. Preemption is a doctrine of

legislative authority to exclusively regulate an area. It does not express a

legislative intent to permit conduct that falls outside of the preempted

area. For example, our legislature did not intend to countenance
 26

overtime parking in society by failing to include state provisions

governing overtime parking within its laws governing the operation of

motor vehicles.

Thus, for the majority to conclude it would be absurd for our

legislature to have left nude dancing out of its preemption scheme is

itself absurd. Additionally, the absurd-results doctrine followed by the

majority must only be utilized sparingly due to the risk of displacing

legislative policy with judicial policy based on speculation. Kolzow v.

State, 813 N.W.2d 731, 739 (Iowa 2012) (“We use the absurd results

doctrine sparingly because of the risk of displacing legislative policy.”);

2A Singer § 45:12, at 105–07. When there is no basis to claim an absurd

result, there is no claim to use the doctrine.

Second, the list of items in section 728.1(3) may be fairly

comprehensive, but hardly all inclusive, so as to render the meaning of

the term “other . . . material” as surplusage, as asserted by the majority.

Ordinarily, it is nearly impossible to spell out every condition in a

statute, making it common for legislators to use general words in

conjunction with specific enumerative words to include additional

contingencies. See 2A Singer § 47:17, at 370–73. The approach taken

by the majority to declare the specific enumerated terms of the statute to

be all inclusive undermines our law and logic. It is inconsistent with the

accepted legislative drafting technique of using catchall phrases to

capture the entire scope of the statute. Commonly, catchall phrases are

used to allow a statute to maintain its relevancy in the face of our ever-

changing society. For example, in this case, the catchall phrase in

section 728.1(3) would allow the statute to not only capture all current

mediums of the distribution of inanimate obscene material, but also new
 27

mediums that surely will be developed in the future as technology

continues to change.

Third, words in a statute are to be given their common meaning.

Severs v. Abrahamson, 255 Iowa 979, 981, 124 N.W.2d 150, 152 (1963).

There is no legal principle that allows the secondary meaning of a word

to change the topic of a statutory definition, especially when the

secondary meaning has little, if any, connection to the new topic sought

to be introduced. In this case, the word “materials” may have a

secondary meaning relating to the repertoire of a performer, but the

meaning of “repertoire” is itself a torturous way to express an intent to

include live nude dancing. Nevertheless, the legislature would not use a

word with a primary meaning consistent with the other associated words

in a statutory definition to create a new topic in the definition derived

from a secondary meaning of the word. In other provisions of chapter

728, the legislature expressly criminalizes public indecent exposure by

persons. Iowa Code § 728.5. Yet, the preemption provision at issue is

limited to obscene materials. See id. § 728.11. If the legislature intended

to preempt local regulation of live acts, it would have said so in section

728.11.

Fourth, courts must attempt to construe statutes in a way that

does not render them unconstitutional. 2A Singer § 45:11, at 80–81.

This approach means courts are to interpret a statute in a way that

supports its constitutionality when the statute is open to two reasonable

constructions. See id. In this case, the word “materials” in section

728.1(3) is not open to two reasonable constructions in the context of the

statute.

Fifth, it is of no value to string together cases from other

jurisdictions where legislatures have specifically defined obscenity to
 28

include live performances. As previously indicated, it would be a

reasonable approach for a state to regulate both inanimate obscene

material and live nude dancing. Nevertheless, it would be just as

reasonable to regulate obscenity using a combination of state and local

government regulations. The question for us in this case is to determine

the approach taken in Iowa, not the approach taken in other states. Any

reference to a string of authorities from other states appears facially

impressive, but is totally irrelevant.

Finally, in Dingman v. City of Council Bluffs, 249 Iowa 1121, 90

N.W.2d 742 (1958), we said the plain, obvious, and rational meaning of a

statute is always preferred over any curious, narrow, hidden sense that

is only uncovered by ingenuity and intellect. 249 Iowa at 1127, 90

N.W.2d at 746–47. The majority has failed to heed this admonition. Our

legislature did not intend for the word “materials” to mean nude, erotic

dancing. A square peg simply will not fit into a round hole.

Therefore, I would conclude state law did not preempt Hamburg’s

ordinance. The Iowa legislature did not deprive local governments of the

ability to regulate live nude dancing. Therefore, we should address the

substantive issue of whether the restrictions imposed by the Hamburg

ordinance violate our Iowa Constitution’s prohibition of laws abridging

the freedom of speech. Because the majority does not address the issue,

however, I will leave it for another day to express my views in this area

and simply dissent from the decision made by the majority.
 29
#10–0898, Mall Real Estate, L.L.C. v. City of Hamburg

WATERMAN, Justice (dissenting).
I respectfully dissent from the majority opinion. I join in the

preemption analysis of Chief Justice Cady’s dissent, but would reach the

merits and conclude the City of Hamburg’s ordinance restricting conduct

at defendant’s strip club, Shotgun Geniez, is constitutional under well-

settled precedent. The majority erroneously deprives local governments

of the ability to regulate such establishments in our state and unfairly

blames the legislature for this outcome. As Chief Justice Cady explains,

live nude dancing simply does not fall within the definition of “obscene

materials” in Iowa Code section 728.1(2), (5) (2009) in which the

legislature prescribed a list of inanimate objects like photos, movies, and

magazines that are removed from local regulation by the preemption

provision in section 728.11 that is expressly limited to obscene materials.

The strip club challenges the ordinance under article I, section 7 of

the Iowa Constitution, but offers no persuasive reason to diverge from

settled federal precedent in applying the Iowa constitutional protections

for speech and expressive conduct. I believe the protection for the

expressive conduct at issue is the same under the Iowa and Federal

Constitutions. See In re Adoption of S.J.D., 641 N.W.2d 794, 802 (Iowa

2002) (“The Iowa Constitution also protects free speech and imposes the

‘same restrictions on the regulation of speech as does the Federal

Constitution.’ ” (quoting State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997)));

Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493, 498

(Iowa 1976) (“We believe the federal and state constitutional provisions,

which contain almost identical language, impose the same limitation on

abridgement of freedom of the press.”).
 30

Although federal precedent makes clear nude dancing is protected

expressive conduct, it is “within the outer perimeters of the First

Amendment” and only “marginally so.” Barnes v. Glen Theatre, Inc., 501

U.S. 560, 566, 111 S. Ct. 2456, 2460, 115 L. Ed. 2d 504, 511 (1991)

(plurality); accord City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S. Ct.

1382, 1391, 146 L. Ed. 2d 265, 278 (2000) (plurality) (stating nude

dancing “falls only within the outer ambit of the First Amendment’s

protection”). The expressive conduct at issue in this case, including pole

dancing, is a far cry from the heart of the First Amendment—protection

for political speech and debate to better inform the citizenry for self-

government. See Knox v. Serv. Emps. Int’l Union, Local 1000, ___ U.S.

___, ___, 132 S. Ct. 2277, 2288, 183 L. Ed. 2d 281, 296 (2012). 7 As

Justice Stevens aptly observed, “it is manifest that society’s interest in

protecting [erotic] expression is of a wholly different, and lesser,

7The Knox Court this summer summarized the core First Amendment values as
follows:
Our cases have often noted the close connection between our
Nation’s commitment to self-government and the rights protected by the
First Amendment. See, e.g., Brown v. Hartlage, 456 U.S. 45, 52, 102
S. Ct. 1523, 1528, 71 L. Ed. 2d 732, 740 (1982) (“At the core of the First
Amendment are certain basic conceptions about the manner in which
political discussion in a representative democracy should proceed[.]”);
Buckley v. Valeo, 424 U.S. 1, 93, n. 127, 96 S. Ct. 612, 46 L. Ed. 2d 659
(1976) (per curiam) (“[T]he central purpose of the Speech and Press
Clauses was to assure a society in which ‘uninhibited, robust, and wide-
open’ public debate concerning matters of public interest would thrive,
for only in such a society can a healthy representative democracy
flourish[.]”); Cox v. Louisiana, 379 U.S. 536, 552, 85 S. Ct. 453, 13
L. Ed. 2d 471 (1965) (“Maintenance of the opportunity for free political
discussion is a basic tenet of our constitutional democracy[.]”); Whitney
v. California, 274 U.S. 357, 375, 47 S. Ct. 641, 71 L. Ed. 1095 (1927)
(Brandeis, J., concurring); Patterson v. Colorado ex rel. Attorney General
of Colo., 205 U.S. 454, 465, 27 S. Ct. 556, 51 L. Ed. 879 (1907) (Harlan,
J., dissenting).
Knox, ___ U.S. at ___, 132 S. Ct. at 2288, 183 L. Ed. 2d at 296.
 31

magnitude than the interest in untrammeled political debate” and “few of

us would march our sons and daughters off to war to preserve the

citizen’s right” to view nude dancing or receive lap dances. Young v. Am.

Mini Theatres, Inc., 427 U.S. 50, 70, 96 S. Ct. 2440, 2452, 49 L. Ed. 2d

310, 326 (1976) (plurality). Most importantly, the First Amendment and

its Iowa counterpart protect the right of citizens to criticize government

officials. That is not what the strippers are doing at Shotgun Geniez.

The Supreme Court has twice upheld state laws requiring nude

dancers to wear “G-strings” and “pasties,” concluding the restrictions

imposed de minimis infringement on marginally protected speech while

legitimately targeting undesirable secondary effects associated with

sexually oriented business. See Pap’s A.M., 529 U.S. at 294, 120 S. Ct.

at 1393, 146 L. Ed. 2d at 281 (reasoning a ban on total nudity arguably

“has some minimal effect on the erotic message by muting that portion of

the expression that occurs when the last stitch is dropped,” but “[a]ny

effect on the overall expression is de minimis”); Glen Theatre, Inc., 501

U.S. at 571, 111 S. Ct. at 2463, 115 L. Ed. 2d at 514 (reasoning the G-

string and pasties requirement “does not deprive the dance of whatever

erotic message it conveys”).

I believe Iowa local governments may enact restrictions designed to

limit undesirable secondary effects such as prostitution, assault, and

drug distribution associated with strip clubs in their own communities,

unless the restrictions “so interfere[] with the message that it essentially

bans the message.” Pap’s A.M., 529 U.S. at 293, 120 S. Ct. at 1393, 146

L. Ed. 2d at 280. The City of Hamburg’s ordinance restricts total nudity

in a manner upheld by the Supreme Court. Id. The ordinance also

prevents the strip club from selling alcohol, which is unrelated to the

erotic message. The ordinance further requires sexually oriented
 32

business to close by 2 a.m., restricts consumption of alcohol brought in

by patrons, requires dancers to perform on a stage at least six feet from

customers, and limits how customers can properly tip dancers. In my

view, all these restrictions pass constitutional muster.

The strip club complains the City’s six-foot distance requirement

“kills the business model.” No doubt a customer’s sensory appreciation

of the dancer’s artistic message is enhanced by the grinding physical

contact of a vigorous lap dance. But, I see no constitutional right to give

a paying customer a lap dance. If it is the “artistic expression” that is

constitutionally protected, the City may impose reasonable time, place,

and manner restrictions to curb undesirable secondary effects. A six-

foot minimum distance requirement still allows a customer a full view of

the dancing without the heightened risk of secondary effects encouraged

by physical contact.

Numerous federal appellate courts have held restrictions like

Hamburg’s permissibly impose incidental and minimal burdens on the

expressive message of nude dancing and constitute a legitimate effort to

control the negative secondary effects associated with sexually oriented

businesses. See 84 Video/Newsstand, Inc. v. Sartini, 455 F. App’x 541,

561–62 (6th Cir. 2011), cert. denied, ___ U.S. ___, 132 S. Ct. 1637, 182

L. Ed. 2d 234 (2012) (upholding no-touch and hours restrictions against

First Amendment challenge); Fantasy Ranch Inc. v. City of Arlington, 459

F.3d 546, 562 (5th Cir. 2006) (“[W]e hold that the effect on the overall

expression is de minimis, as the City of Arlington has muted only that

portion of the expression that occurs when the six-foot line is crossed,

while leaving the erotic message largely intact.”); G.M. Enters., Inc. v.

Town of St. Joseph, 350 F.3d 631, 638 (7th Cir. 2003) (upholding a no-

touching requirement because “a minimal physical buffer between
 33

patrons and dancers does not reduce the availability of nude dance

entertainment”); Wise Enters., Inc. v. Unified Gov’t of Athens-Clarke Cnty.,

217 F.3d 1360, 1363–65 (11th Cir. 2000) (upholding ordinance

preventing sale of alcohol in sexually oriented business); Lady J. Lingerie,

Inc. v. City of Jacksonville, 176 F.3d 1358, 1364–65 (11th Cir. 1999)

(upholding an hours-of-operation and square-foot limitation because the

restrictions “do not directly regulate[] the expressive conduct that is the

basis of the plaintiffs’ First Amendment challenges: nude dancing”);

Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998) (rejecting First

Amendment challenge to Iowa statute requiring pasties and G-strings).

These authorities are persuasive and should be followed when applying

our Iowa constitutional protections to this case.

For these reasons, I would affirm the district court ruling

upholding the City of Hamburg ordinance.