Dick and Jane's is suing the city after it refused to give him a business permit this past summer to house the sexually oriented business in a former auto dealership.
Sturgis denied Dick and Jane's' occupancy permit because the location does not comply with municipal regulations governing sexually oriented businesses, which forbid them to be a distance of a quarter mile away from homes, schools, churches, or places where children and the public are likely to be such as parks and recreational facilities.
Dick and Jane's also contend that Meade County, the county in which Sturgis is located, contains purely discretionary licensing for adult businesses and that any potential sites in Meade County therefore don't satisfy First Amendment standards.
The retailer, in the suit, noted nearby counties of Pennington and Lawrence also have no acceptable sites within the law.
"The city of Sturgis has admitted that there are no locations within its municipal boundaries that meet the distance requirements so as to permit the establishment of an adult business within the municipal boundaries," Dick and Jane's said in a motion to the court.
"Neither Sturgis nor the state have made any good faith attempt to identify reasonably available sites. Hence, they have failed their burden, and [Dick and Jane's] would otherwise be entitled to judgment on this factual issue as a matter of law."
In August, U.S. District Judge Jeffrey Viken denied Dick and Jane’s request for an emergency temporary restraining order or preliminary injunction against Sturgis that would have allowed the business to open.
In the TRO denial, Viken said the plaintiff’s attorney failed to notify the South Dakota Attorney General’s office that a federal court action is challenging the constitutionality of state law regulating adult-oriented businesses.
Vixen at the time said issuing a TRO would be equal to deciding the constitutionality of state laws, but with the case moving ahead he said he would decide the constitutionality question.
Its owner, David Eliason, is seeking a preliminary injunction, declaratory judgment and damages from the city for delaying Dick and Jane's' opening.
Eliason is former co-owner of Annabelle’s Adult Super Center in Sioux Falls, S.D., and Olivia’s Super Center near Tea, S.D.
