Brewvies killed a law that banned nude art and alcohol, and Utah won’t try to bring it back

Decision part of filing where state argues against paying Salt Lake City movie theater’s $534,000 legal bill.

(Rachel Molenda | The Salt Lake Tribune) Norman Chesler, a member of Brewvies' management team and board, is pictured during a past news conference at the theater.

The state of Utah won’t fight Brewvies Cinema Pub over “Deadpool” anymore.

A spokesman for the Utah Attorney General’s office confirmed Thursday that the state will not appeal a ruling by a federal judge that found unconstitutional the state’s statute barring depictions of sex or full-frontal nudity in places that serve alcohol. The spokesman declined further comment on when or how the AG’s office arrived at that decision.

The state’s public acknowledgment that it was not appealing the case is buried in a 41-page memorandum filed this week in the case, where the state argues against paying the $534,431.05 in legal fees that Brewvies’ lead attorney, former Salt Lake City Mayor Rocky Anderson, asked the court to approve.

In August, U.S. District Judge David Nuffer threw out the state statute, in a case centering on regulators for the state’s Department of Alcoholic Beverage Control threatening to fine Brewvies up to $25,000 and taking away the business’s liquor license after the theater screened the R-rated superhero movie “Deadpool.”

DABC regulators cited Brewvies after State Bureau of Investigation officers went into Brewvies in 2016, bought beers and watched “Deadpool.” Some of the movie’s content — such as an animated image of Deadpool suggestively stroking a unicorn’s horn until it spurted rainbows — was deemed in violation of the state’s statute against showing sexual images where liquor is served.

Anderson has argued Nuffer’s ruling was a victory for the First Amendment, covering not only Brewvies’ screenings of “Deadpool” but any artistic depiction of taboo topics.

Anderson filed his motion in mid-October, to demand the state pay fees for him and four attorneys, a law clerk and two paralegals — as well as line items for expert witnesses, travel, raising money for the legal fund, and other expenses.

The state’s response, filed by Assistant Utah Attorney General David N. Wolf, says that Anderson and his staff “seek to bill the State for charges no actual client would ever pay.” The memorandum argues Brewvies’ lawyers are charging for “unreasonable amounts of time billed for the identified tasks, unnecessary and duplicative work, and that counsel improperly seek recovery for general research and clerical or administrative tasks performed at exorbitant rates.”

“This case was significantly less complicated than [Brewvies] contends, and [Brewvies] unnecessarily complicated and prolonged the case,” Wolf’s memorandum argues. For example, the state argues that Anderson’s staff took depositions of the officers from the State Bureau of Investigation and the Department of Alcoholic Beverage Control compliance officers, even though neither side disputed what those officers wrote in their citations.

Wolf’s memorandum ends with a figure the state thinks is reasonable for Anderson’s costs: $3,848.35.

Anderson said Thursday he’s working on a response to the state’s memorandum and that the fees he’s seeking aren’t all for him and his staff. Much will recoup the money Brewvies spent to defend itself and will repay an “angel” organization, the DKT Liberty Project, that supported the case.

“This money is going mostly to repay those who have been paying all along,” Anderson said.

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