However, the 10th U.S. Circuit Court of Appeals in Denver did send a challenge of the statute by the owner of Dr. John's Boutique back to U.S. District Judge Paul Cassell for review of one issue - whether a store that sells products used by buyers at their homes, rather than on the premises, causes the type of bad secondary effects targeted by the ordinance.
"In general, we like the opinion," said Salt Lake City attorney Robert Keller, who represents Roy.
The city adopted Ordinance 879 on May 1, 2001, a few months after Dr. John's opened in Roy and began selling lingerie, swimwear, vibrators, sex toys, videotapes and magazines. The measure limits the operating hours of sexually oriented businesses to 10 a.m. to 11 p.m., mandates lighting around the outside of the building, bans loitering and requires a license fee.
The ordinance was designed to combat crime and health problems that sometimes stem from the sale of explicit materials.
The city informed Dr. John's that it fell under the ordinance, but the store refused to get a sexually oriented business license. Instead, the owner applied for a general business license and filed suit claiming the regulation was too broad and gives too much discretion to Roy officials.
The city, in turn, asked Cassell to declare that Dr. John's is a sexually oriented business and order it to apply for the license. In a 2004 ruling, the judge ruled that the regulation is constitutional. However, he said the dispute over how Dr. John's is classified should go through the Utah state court system.
Roy then filed suit in state court seeking an order that the store obtain a sexually oriented business license; that legal action is pending. Dr. John's filed an appeal with the 10th Circuit.
On Tuesday, the boutique's attorney, W. Andrew McCullough of Midvale, said the fight will continue in federal and state court. He said the part of the ordinance defining stores as sexually oriented if a "significant or substantial portion" of their inventory is devoted to adult products is vague and needs clarification. "I'm still mystified by the term 'substantial,' " McCullough said.
pmanson@sltrib.com
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* Tribune correspondent ROBERT BOCZKIEWICZ contributed to this story.
