Dick and Jane’s cleared to open in Rapid City

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The latest on the fate of a sex shop called Dick and Jane's Naughty Spot.

Jan. 30, 2018

A man attempting to open a sex shop in Rapid City has been given the ‘okay’ from a district court judge despite opposition from the city, a local business, and some residents. Dick and Jane's Naughty Spot is set to open on Feb. 14.

David Eliason claims his First Amendment rights were violated when he was denied the chance to open his business within city limits.

In October 2017, Eliason moved for a preliminary injunction against the city for denying him a permit to operate. That injunction was granted on Monday by Chief Judge Jeffrey L. Viken.

Until further order from the court, city employees are instructed to not use a specific city ordinance to deny Eliason a conditional use permit. This allows Eliason to operate his business in The Deadwood Avenue Business Park.

Here’s a breakdown of actions taken by Eliason, the Rapid City Common Council, and the Rapid City Planning Commission.

According to court documents, Eliason met with city employees in May 2017. It was indicated to Eliason that he could likely operate his business on Deadwood Avenue. The Deadwood Avenue Business Park - a general commercial zoning district - was suggested as a location not prohibited by city ordinance 17.50.186(C). 

The ordinance states the purpose of regulating sexually oriented businesses is "to promote the health, safety and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the city."

The ordinance prohibits sexually oriented businesses from operating within 1,000 feet of facilities like churches, parks and schools. Any sexually oriented business operating in an approved location must have a conditional use permit.

Eliason got a leasehold interest for a space at 1141 Deadwood Ave., giving him temporary rights to occupy the property. He applied for a conditional use permit from the Rapid City Planning Commission, which was approved in August 2017.

The Planning Commission's decision was appealed to the Rapid City Common Council by a martial arts studio in the Deadwood Avenue Business Park. Black Hills Taekwondo (BHT) LLC, also known as Karate for Kids, offers classes to children age four and older.

The argument hinged on this – is BHT an educational facility? The Planning Commission and legal counsel to the city decided that BHT did not qualify as such. But with a broad definition of what constitutes such a facility, the city council disagreed.

Assistant City Attorney Carla Cushman wrote a legal memorandum to the council on Sept. 18, 2017, stating that BHT was not an educational facility.

But on that same day, the city council voted 6-4 to deny the conditional use permit. At the meeting, legal counsel for BHT and members of the public spoke about the protection of children.

Some councilmembers also cited personal, moral and religious values in denying the permit.

One councilman who voted against issuing the permit explained, "I want to be on the side that says this is not good for society ... there are always going to be people who choose the wrong path and that has started from the very beginning of time starting with the apple, right? So, but that doesn't mean that we can't regulate, that doesn't mean that we can't make sure that our community reflects the moral fortitude of all of the people - let's just say the majority of the people in this city."

A councilwoman who also voted against issuing the permit said the intent of the ordinance was to keep adult-oriented businesses away from children.

But the court did not weigh moral values. Their duty was to determine whether the ordinance provided narrow, objective, and definite standards to guide the licensing authority.

Eliason said the council's vote caused him medical issues. He said the night of the vote, he experienced heart palpitations and was hospitalized in Sturgis for three days.

After the vote, Eliason met with city officials to discuss other potential locations for his business. But according to court documents, no one at the meeting named an alternative location that would follow the city ordinance. However, there was discussion on whether Eliason could modify his proposal to not be regulated as a sexually oriented business.

Eliason’s complaint against the city alleged that the city ordinance violates his First Amendment rights in three ways:

First, the complaint alleges that the city code imposes an unconstitutional prior restraint on Eliason's First Amendment rights, because he can't open his business without a conditional use permit.

Second, Eliason claims that the definition of an "educational facility" is unconstitutionally vague. He argued that this was made clear by the contrasting interpretations of city ordinance by the city council on one hand and the city attorney and planning commission on the other.

The city defines an education facility as: a public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities; school includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school.

Third, Eliason claims that the city ordinance fails to provide sufficient alternative avenues for his First Amendment expression.

A scheduling order will be entered for the resolution of Eliason’s remaining claims.

City Attorney Joel Landeen said the city is still reviewing the court’s decision and evaluating their options to “decide what the next steps are.”

Eliason has no hard feelings against city employees. He's ready to be open for business.

And in answer to concerns over child safety, Eliason said he gets where people are coming from. But he countered those fears on two points.

First, Eliason said, the adult entertainment industry has changed. He said there's more pride in the work, and he's committed to running a respectful business.

Second, Eliason said children don't typically ask questions about other adult establishments, like bars and casinos. He doesn't think the public should be concerned about his business being near BHT.

"I understand their concerns," said Eliason. "I look back at my own child growing up, and I don't recall a lot about them asking about specific businesses where there's a casino or a bar, liquor store. They're too distracted doing the things they're involved in on a daily basis."


Sex shop owner tries to appeal Rapid City denial 

Oct. 19, 2017

(AP) — A longtime sex shop owner is asking a federal judge to overturn a Rapid City Council decision barring him from opening a store within city limits.

The Argus Leader reports that the council voted last month to deny David Eliason a conditional use permit to open a sex shop called Dick and Jane's Naughty Spot because no locations complied with zoning requirements. Eliason asks a judge in his complaint for an injunction on the council ruling, saying it violates his constitutional rights.

Eliason used to own sex shops in Sioux Falls and Tea, and has faced similar restrictions before. A federal judge ruled against the city of Sturgis in 2013 when it attempted to force Eliason's store out of its location.

Eliason's lawyer didn't immediately return a message.


Information from: Argus Leader, http://www.argusleader.com

Copyright 2017 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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