Nude club's lawsuit against Utah city revived by federal appeals panel

By The Associated Press

01.23.03

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DENVER — A federal appeals court has revived a lawsuit against the city of Ogden, Utah, which barred a nude dance club from opening in an industrial park.

A three-judge panel of 10th U.S. Circuit Court of Appeals ruled yesterday that the actions of Ogden officials were a form of prior restraint, and a lower court judge was wrong in dismissing the case.

"This because-I-said-so approach is startlingly evident," the 2-1 court majority said of the city's actions.

The club's owner, Michelle Lutz, claimed her First Amendment rights were violated when Ogden leaders determined her nude juice bar couldn't operate in the Ogden City Industrial Park.

Ogden city attorneys had argued that the club didn't fit in with the business park atmosphere, even though the park is zoned for sexually oriented businesses.

Lutz never began building the strip club but hired Jed Whillhite to start developing the land. Whillhite also sued the city, claiming City Attorney Norman Ashton promised Lutz she could operate the Tool Box nude club there, despite private covenants.

Whillhite's suit seeks $41,000, the cost of the land development.

In his dissent on Lutz's appeal, Judge Harris L. Hartz said the club later found a site elsewhere in town.

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