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March 2014

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52 March 2014 Club Bulletin www.EDpublications.com Legally Speaking L S by Matt Hoffer S turgis, South Dakota is home to the country's largest motorcycle rally. The "Rally" draws a throng of a half million bikers, motorcycle enthusiasts, and partygo- ers from across the country. However, despite the women in pasties strolling down the street, you would have been hard pressed to find a shop to purchase such wares. That is until now. In August of 2010, owner David Eliason informed the city that Dick and Jane's Naughty Spot would be opening a bou- tique in town, right at the gateway to town off the interstate. He quickly learned that week-long party for a half-million was perfectly acceptable, but a store whose inventory included dildos? That was too much. During the build-out for the store, Eliason would make fre- quent visits to lobby the local Planning Director Richard Bush and explain why the boutique would not be an "adult oriented business" within the meaning of South Dakota Codified Laws Chapter 11-12, the State's newly-minted law regulating the location of such establishments. "Fatty Patty" a novelty blow up doll, for example, was not "designed for use in connection with specific sexual activities." It didn't even have a hole. So, creative options aside, that just was not possible. More im- portantly, the risqué items, such as dildos and the like, would be limited to a back room comprising a small portion of the store's foot print. The city would have none of that. One day, Eliason asked Director Bush about the process for applying for a certificate of occupancy. On Eliason's next visit, Bush had a letter from the city prepared denying Mr. Eliason's request for a cer- tificate of occupancy, before he could even apply. For their safety, citizens' access to penis-shaped cake pans would have to wait. Eliason's next call was to Shafer & Associates. Eliason had seen Brad Shafer at a prior year's ED EXPO and sat next to him on a departing flight. I put together a letter to the city introducing Shafer & As- sociates and our experience. I explained why Dick and Jane's was not an adult-oriented business, why the state law was unconstitutionally vague and the consequences of the city maintaining its current course. Nevertheless, the City refused to capitulate. In response to my contention that the statute was vague, the city sug- gested that Dick and Jane's file a declaratory action so that a state court could determine whether or not Dick and Jane's was an adult-oriented business. This was the first mistake the city was forced to make. Instead, I filed a complaint in federal court and moved for a temporary restraining order. The court declined. Judge Jeffery Viken, then recently appointed by President Obama, decided it better to give the State's Attorney General an op- portunity to intervene before he decided the merits of the state law. This forced Dick and Jane's to plan B. The City ordinances only required a certificate of occupancy for changes of use. Dick and Jane's choice location was formerly an auto deal- ership, which required a change of use and City approval. Therefore, Dick and Jane's secured a substitute location that was formerly a retail use that would not require City approval. Dick and Jane's moved to its substitute location and opened in time for the next year's rally. During the rally, Stur- gis police decided their time was best spent not patrolling or ensuring the peace and safety of the half-million partygoers, but investigating Dick and Jane's inventory. There could be dildos there. There were, and Mr. Eliason was arrested. The city of Sturgis, South Dakota, isn't exactly known as a puritanical location. So why did they fight the opening an adult store with such vigor? Attorney Matt Hoffer explains how they were able to prevail on behalf of Dick and Jane's, and how the tactics they utilized can help other adult business owners. But adult toys? Forget about it! Half-naked girls and motorcycle rallies are cool.

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