Appeals court upholds Doctor John's decision

A federal appeals court on Tuesday upheld an earlier decision that First Amendment rights were not violated by an ordinance requiring a sexually oriented business license for a Roy boutique.

In its written decision, the 10th Circuit Court of Appeals said Doctor John's Inc., which owns a chain of stores that sell "adult" products, did not present enough evidence to overturn a lower court's decision.

But attorneys for both Doctor John's and the city said the decision only cleared the way for a legal battle over how sexually oriented businesses are defined.

"It's not unexpected, and I'm not even sure it's a bump in the road," Andrew McCullough, an attorney for Doctor John's, said of the decision. "This dispute between my client and the city of Roy is just warming up."

A state lawsuit was filed by Roy in an effort to bring the boutique into compliance with the ordinance, but the lawsuit was put on hold pending the outcome of the federal case.

The city wants Doctor John's to register as a sexually oriented business, but the store claims it doesn't sell enough "adult products" to warrant the status, which comes with additional licensing fees for the business and its employees. McCullough said the city's ordinance needs to be clarified.

"In the end, we're going to be selling material that some people don't like," he said. "It may not be in the quantity my client would like to sell; it may be more than the other side would like.

"I don't know where the line is going to be drawn, but there is going to be a line if it kills us all."

Roy city attorney Andy Blackburn, who has not litigated the case, called the lawsuit "absurd" and said too much time and money already had been spent on the matter.

"It's really simple. Just get a sexually oriented business license," Blackburn said.

The difference in licensing fees would be an additional $125 for Doctor John's, he said.

"I think there's a lot of principle involved, and Doctor John's is willing to do a lot for that," said Rob Keller, an attorney hired by the city.

Keller said he believes Roy officials would be open to discussion about how much adult product a store can sell under a general business license. Blackburn declined to comment on a potential compromise.

Seeking a clarification in another city's licensing ordinance, Doctor John's filed a lawsuit against Midvale earlier this year.

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