Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PLAINTIFF’S SECOND MOTION FOR SUMMARY JUDGMENT; THE DEFENDANT’S MOTION TO RECONSIDER MEMORANDUM OPINION AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT ON OCTOBER 2003 AND JANUARY 2004 ORDINANCES; THE DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT RE: NON-MEDIA PORTIONS OF ORDINANCE 2004-0004 AND CONSTITUTIONALITY OF ORDINANCE 2004-1061; and THE PLAINTIFF’S MOTION TO BIFURCATE DAMAGES BENNETT, Chief Judge. TABLE OF CONTENTS I.INTRODUCTION AND BACKGROUND ....................................1011 A. Procedural Background...............................................1011 1. Claims by Doctor John’s................................. 1011 2. The motion for a preliminary injunction............................1011 3. The first round of summary judgment motions ............. 1012 4. Subsequent amendments and motions..............................1012 5. The first summary judgment ruling................................1013 6. The second round of summary judgment motions....................1013 B. Factual Background.......................... 1014 1. The Doctor John’s store in Sioux City ..............................1014 2. Sioux City zoning ordinances and amendments......................1015 a. Pre-existing ordinances.......................................1016 b. The “Moratorium” Amendment................................1017 c. The January 2004 Amendments........................ 1017 i. Amended Ordinance 2004-0004 ............................1018 ii. Amended Ordinance 2004-0024 ............................1019 iii. Background to the summary judgment motions on the January 2004 Amendments..............................1020 d. The December 2004 Amendments...............................1021 i. Amended Ordinance 2004-1059 ............................1021 ii. Amended Ordinance 2004-1060 ............................1023 iii. Amended Ordinance 2004-1061 ............................1024 II. LEGAL ANALYSIS.......................................................1025 A. Standards For Summary Judgment And Reconsideration................1025 B. Issues Relating To The January 2004 Amendments......................1027 1. Arguments of the parties..........................................1028 2. Analysis.........................................................1029 a. Constitutionality issues.......................................1029 i. Did the “media” provisions satisfy the applicable level of scrutiny? ...........................................1029 ii. Were the “non-media” provisions independently constitutional? ........................................1032 b. Applicability issues...........................................1036 c. Damages issues ..............................................1038 3. Summary........................................................1039 C. The Motion To Bifurcate Damages Issues ..............................1040 1. Arguments of the parties..........................................1040 2. Analysis.........................................................1040 D. Issues Relating To The December 2004 Amendments.....................1042 1. Arguments of the parties..........................................1042 2. Analysis.........................................................1044 a. The “adult bookstore or adult video store”provisions............1044 i. “Constitutionality” of the provisions ......................1045 ii. “Applicability” of the provisions ..........................1049 b. The “sexual device shop”provisions............................1050 i. The “equal protection” challenge..........................1050 ii. The “substantive due process” challenge...................1052 c. The licensing “civil disability”provision.......................1053 i. “Constitutionality” of the provision .......................1053 ii. “Applicability” of the provision ...........................1055 III. CONCLUSION...........................................................1055 Since late 2003, the plaintiff, a putative “adult entertainment business,” and the defendant, the City of Sioux City, Iowa, have been embroiled in a dispute over the constitutionality and applicability of a string of amendments to city zoning ordinances regulating the location of “adult entertainment businesses” within the City’s limits. The initial amendments to the pertinent ordinances were passed just in time to bar the plaintiffs new store from opening in a developing retail area near the southern edge of the City. Only a preliminary injunction issued by this court permitted the plaintiff to commence business at its chosen location. The court subsequently granted in part and denied in part the plaintiffs request to make the preliminary injunction permanent, denied the City’s motion for summary judgment in its entirety, and directed that the preliminary injunction previously issued continue in full force and effect, to the extent that its provisions had not been made permanent. As trial approaches, the plaintiff seeks summary judgment in its favor on its claims that subsequent amendments to the pertinent City ordinances are unconstitutional and unenforceable against it, while the City seeks reconsideration of parts of the court’s prior summary judgment ruling as to the earlier round of amendments, summary judgment in its favor on the constitutionality of provisions of one of those earlier amendments that purports to regulate “adult entertainment businesses” on the basis of “non-media” inventory, and summary judgment in its favor on the constitutionality of one of its later amendments that imposes certain licensing requirements for “adult entertainment businesses.” The court must decide which, if any, of the many issues presented can be resolved prior to trial. 7. INTRODUCTION AND BACKGROUND A. Procedural Background 1. Claims by Doctor John’s Plaintiff Doctor John’s, Inc. (Doctor John’s), a putative “adult entertainment business,” filed its original Complaint in this action on December 9, 2003, against the City of Sioux City, Iowa (the City), and Paul Eckert, in his official capacity as Sioux City’s City Manager, challenging Sioux City’s municipal ordinances imposing a moratorium on new “adult entertainment businesses” enacted in October 2003 and amended in November 2003. On January 20, 2004, Doctor John’s filed an Amended Complaint, and on February 10, 2004, filed a Second Amended Complaint challenging further amendments to Sioux City’s zoning ordinances concerning “adult entertainment businesses,” enacted in January 2004 (the January 2004 Amendments). In its Second Amended Complaint, Doctor John’s alleged that these ordinances violated its right to free expression protected by the First Amendment to the United States Constitution and constituted prior restraints on free expression; failed to allow reasonable alternative means of expression; resulted in a taking of its business property without due process of law; infringed First Amendment freedoms in a manner greater than necessary to further any valid interests of the City; lacked adequate procedural safeguards and failed to provide for prompt judicial review; and denied equal protection. The City denied these claims. , 2. The motion for. a preliminary injunction • On January 5, 2004, shortly after filing its original Complaint, Doctor John’s filed a Motion For Preliminary Injunction in which it requested that the court enjoin the City from enforcing the temporary moratorium on adult entertainment businesses enacted in October 2003. The moratorium had expired by the time of the evidentiary hearing on the motion for preliminary injunction on February 20, 2004. At the evidentiary hearing, however, the court allowed Doctor John’s to amend orally its Motion For Preliminary Injunction to seek an injunction against enforcement of the amended “adult entertainment business” ordinances enacted at the expiration of the moratorium in January 2004 (the January 2004 Amendments). In a published ruling, Doctor John’s, Inc. v. City of Sioux City, Iowa, 305 F.Supp.2d 1022 (N.D.Iowa 2004) (Doctor John’s I), filed February 26, 2004, the court entered a preliminary injunction enjoining the City from pursuing, instituting, continuing, or completing any and all enforcement actions pursuant to the municipal code employing the definition of “adult entertainment business” in the January 2004 Amendments, until such time as the preliminary injunction was dissolved or vacated, by this court or a reviewing court. With the exception of certain provisions subsequently made permanent, the preliminary injunction has remained in effect until this time. 3. The first round of summary judgment motions Some ten months after the court’s preliminary injunction ruling, on December 20, 2004, Doctor John’s filed a Motion For Partial Summary Judgment (docket no. 48) in which Doctor John’s asserted that the January 2004 Amendments are facially invalid, because they violate the free expression guarantees of the First Amendment to the United States Constitution. On February 22, 2005, the City filed its own Motion For Summary Judgment (docket no. 55) and a combined Brief In Resistance To Plaintiffs Motion For Summary Judgment And In Support Of Defendants’ Motion For Summary Judgment (docket no. 56). In its own motion and in resistance to the motion by Doctor John’s, the City asserted that challenges to the January 2004 Amendments were “mooted,” because further amendments repealing the January 2004 Amendments were enacted in December 2004 (the December 2004 Amendments). In the alternative, if the challenges to the January 2004 Amendments were not “mooted,” the city argued that Doctor John’s would have been a “sex shop” under the “sex toys” definitions in the January 2004 Amendments, which did not implicate First Amendment protections, and that the “combination” provision of the January 2004 Amendments involving “adult media” was constitutional under the applicable level of scrutiny for regulation of expression, which the City contended was “intermediate scrutiny,” so that Doctor John’s could have been lawfully excluded from its chosen location under those provisions. 4. Subsequent amendments and motions As mentioned above, in December 2004, the City enacted additional amendments to its ordinances redefining “adult entertainment businesses” and repealing the January 2004 Amendments. Those amendments are referred to herein, for the sake of convenience, as the December 2004 Amendments. Doctor John’s raised challenges to the December 2004 Amendments in its Third Amended Complaint (improperly denominated its Second Amended Complaint), filed June 20, 2005 (docket no. 70), and in its August 22, 2005, Second Motion For Summary Judgment (docket no. 76). Disposition of the Second Motion For Summary Judgment relating to the December 2004 Amendments was held in abeyance, however, pending further discovery. See Order of September 1, 2005 (docket no. 78). Therefore, only the issues pertaining to the January 2004 Amendments were before the court at the time of its ruling on the first round of summary judgment motions. 5. The first summary judgment ruling The court was occupied during April, May, and June of 2005 with the trial of the second of two death-penalty cases on its docket and was thereafter occupied with the backlog of other criminal cases with speedy trial deadlines. Eventually, the court heard oral arguments on the first round of summary judgment motions in this case on September 15, 2005, and entered a lengthy ruling on those motions on September 28, 2005. See Doctor John’s, Inc. v. City of Sioux City, Iowa, 389 F.Supp.2d 1096 (N.D.Iowa 2005) (Doctor John’s II). In that ruling, the court granted in part and denied in part the December 20, 2004, Motion For Partial Summary Judgment filed by Doctor John’s (docket no. 48). More specifically, the court found and declared that the “combination” definition of a “sex shop” in Sioux City Municipal Ordinance 2004-0004(A-2)(m)(l) was unconstitutional under the First Amendment, as a matter of law, to the extent that it defined a “sex shop” on the basis of a “combination” of two or more categories of items including “adult media.” Consequently, the court permanently enjoined the City of Sioux City, and any of its subdivisions or administrative departments, agents, or officials, from pursuing, instituting, continuing, or completing any and all enforcement actions or otherwise barring business activities of any business on the basis of the definition of a “sex shop” in Sioux City Municipal Ordinance 2004-0004(A-2)(m)(l), or any subsequently enacted ordinance, to the extent that the definition of a “sex shop” is based on the “combination” of any two or more categories of items including “adult media.” The court also denied in its entirety the City’s February 22, 2005, Motion For Summary Judgment filed by the defendant City. Finally, the court directed that, to the extent that provisions of the court’s February 26, 2004, preliminary injunction had not been made permanent by its ruling, that preliminary injunction would continue in full force and effect. 6. The second round of summary judgment motions The parties eventually completed discovery pertaining to issues raised in the Second Motion For Summary Judgment filed by Doctor John’s, that is, issues pertaining to the December 2004 Amendments to the City’s “adult entertainment businesses”' ordinances, and filed a proposed scheduling order for disposition of that motion, deadlines for any other dispositive motions, and a proposed date for trial. Trial was (and remains) set to begin on September 11, 2006. Before the briefing was completed on the Second Motion For Summary Judgment filed by Doctor John’s, Doctor John’s filed its January 12, 2006, Motion To Bifurcate Damages (docket no. 94). The City resisted that motion on January 16, 2006 (docket no. 95), and Doctor John’s filed a reply in further support of that motion on January 20, 2006 (docket no. 104). The court, however, deemed the issues in the motion to bifurcate to be largely contingent on the disposition of the Second Motion For Summary Judgment by Doctor John’s and any cross-motion for summary judgment that the City might file. Therefore, the motion to bifurcate remains pending at this time. On April 12, 2006, the City filed a Motion To Reconsider Memorandum Opinion And Order Regarding Cross-Motions For Summary Judgment On October 2003 And January 2004 Ordinances (docket no. 115), and its Second Motion For Summary Judgment Re: Non-Media Portions Of Ordinance 2004-0004 And Constitutionality Of Ordinance 2004-1061 (docket no. 117), and accompanied these motions with a combined brief that also incorporated the City’s resistance to the Second Motion For Summary Judgment by Doctor John’s. On May 25, 2006, Doctor John’s filed a combined Memorandum In Opposition To Defendant’s Motion For Summary Judgment And Reply Memorandum In Support Of Plaintiffs Second Motion For Summary Judgment (docket no. 122). On June 27, 2006, the City filed its Reply Brief In Support Of Motion To Reconsider And Second Motion For Summary Judgment (docket no. 129). Finally, on June 28, 2006, Doctor John’s filed certain supplements to its briefing on the cross-motions for summary judgment (docket nos. 130 & 131). By order dated June 23, 2006 (docket no. 126), the court denied a motion to continue trial by Doctor John’s and set oral arguments on the pending motions for July 6, 2006. At those oral arguments, Doctor John’s was represented by W. Andrew McCullough of McCullough and Associates, L.L.C., in Midvale, Utah, who argued the motions, and Brian B. Vakuls-kas of Vakulskas Law Firm, P.C., in Sioux City, Iowa. The City of Sioux City was represented by Scott D. Bergthold of Chattanooga, Tennessee, who argued the motions, and by Assistant Sioux City Attorney Connie E. Anstey. In the course of the hearing, the court afforded the parties the opportunity to submit additional authority on certain issues by subsequent letter. Both parties submitted such letters. The motions presently before the court are now fully submitted. B. Factual Background The court will reprise here some of the factual background set forth in its prior rulings, and will also amplify its statement of the facts with additional facts drawn from the record provided by the parties in support of the second round of summary judgment motions and the City’s motion to reconsider. As in its prior rulings, however, the court will not attempt a dissertation of undisputed and disputed facts, but only a statement of sufficient facts to put in context the parties’ arguments concerning their cross-motions for summary judgment and the City’s motion to reconsider. For example, the court will set aside, for the moment, the parties’ various contentions concerning percentage of inventory and sales receipts attributable to certain kinds of items in the Doctor John’s store in Sioux City, Iowa, until those issues become pertinent to the court’s disposition of issues presented in the parties’ motions. 1. The Doctor John’s store in Sioux City At some time in the fall of 2003, Doctor John’s leased property with approximately 6,000 square feet of retail space located at 3507 Singing Hills Boulevard, Sioux City, Iowa, for one of its stores, its first such store in Iowa. The property leased by Doctor John’s for its Sioux City store is in a relatively new and still developing commercial area across from a Wal-Mart, adjacent to a strip mall, a chiropractor’s office, and a nail salon, and near various restaurants, bars, and motels, a new car dealership, a minor league baseball stadium, a park with little league or softball fields, a bowling alley, and an ice-skating rink. The store is located in an area zoned as General Business-Commercial Planned Development (“BG-C”) under the Sioux City Municipal Code. That is, it is in a General Business (“BG”) zone, with a Commercial Planned Development Overlay (“-C”). As in its stores in other states, Doctor John’s intended to sell at its Sioux City store a variety of merchandise, including primarily lingerie, swim wear, women’s shoes, lotions, and oils, as well as videos (both “adult” and otherwise), games, novelty items, and “marital aids” or “adult toys,” including, for example, vibrators, “dildos,” “masturbation toys,” and blow up dolls (some described as “anatomically correct”). Doctor John’s has maintained throughout this litigation that its stores, in Sioux City and elsewhere, sell a variety of products designed to appeal to couples who wish to enhance their love lives. Consequently, Doctor John’s has opined that it is more properly described as a “romance shop” than a “sex shop,” and has asserted that, unlike what is typically identified as an “adult entertainment business,” it caters primarily to women rather than to men. Nevertheless, Doctor John’s has admitted that a majority of the customers of its Sioux City store have still been male, ranging from as high as 65% to as low as 53% of the store’s customers, depending upon who is doing the counting and during what time frame. Prior to setting up its store in Sioux City, Doctor John’s representatives had some contact with the City Attorney concerning zoning requirements for the intended location of that store, in the course of which Doctor John’s representatives indicated a willingness to adhere to (or to avoid application of) then-existing ordinances defining and limiting the location of “adult entertainment businesses” by modifying or limiting its inventory. Before Doctor John’s could complete preparations to open its store in Sioux City, however, Sioux City’s zoning requirements for “adult entertainment businesses” underwent significant amendment (including the January 2004 Amendments, described in more detail below). Those amendments prevented Doctor John’s from opening its store at its chosen location. The amendments also prompted Doctor John’s to file this lawsuit and to seek the preliminary injunction mentioned above. After delays caused by the City’s enforcement of its amended zoning ordinances, Doctor John’s opened its Sioux City store in late February or early March 2004 pursuant to the court’s preliminary injunction enjoining enforcement of the January 2004 Amendments. The court has observed in its prior published rulings in this case that the Doctor John’s store in Sioux City is in a handsome freestanding building with an interior display of swimsuits and lingerie that dominates the first impression of the store. This merchandise is presented very much in the same manner that it would be in most national brand name clothing stores, which have become ubiquitous at malls across urban ■ and suburban America. Thus, the first impression of the store is a far cry from the first image that most people would likely have of an “adult book store” or “sex shop.” There is nothing seedy about the neighborhood, store building, or store front. In fact, from a quick drive-by, one would likely assume that the business was a rather upscale retail store for women’s clothing and accessories. There are no “adult” signs or banners proclaiming “peep shows,” “live entertainment booths,” “XXX movies,” “live models,” “adult massage,” or any of the other tasteless come-ons all too familiar from adult entertainment stores that exist in virtually every American city of any size and which one may find scattered along interstates and highways even in rural America. Minors are not admitted to any Doctor John’s stores, because as a representative of Doctor John’s testified at the preliminary injunction hearing, Doctor John’s “d[oesn’t] believe that children should be in a store that carries adult material.” The parties do not dispute that Doctor John’s has actually enforced the “no minors” rule at the Sioux City store. 2. Sioux City zoning ordinances and amendments a. Pre-existing ordinances Sioux City Municipal Code 25.56.010, which has not been amended during the period of interest in this litigation, states the purpose of a General Business (“BG”) Zone, such as the one in which Doctor John’s Sioux City is located, to be the following: The BG zone is intended to provide business locations for retail, service and wholesale uses serving a city-wide clientele. The zone is intended to be located in areas characterized by good accessibility, including those areas which are heavily exposed to automobile traffic. Sioux City Municipal Code 25.56.010. The Commercial Planned Development Overlay Zone (“-C”) does not generally change the permitted uses in a BG zone: The permitted uses, permitted accessory uses and the permitted conditional uses shall be the same as the zone upon which the -C zone is overlaid, except that this range of uses may be reduced by the terms of an approved planned development concept plan or an approved planned development site plan if no concept plan is required. Sioux City Municipal Code 25.74.212. Principal uses permitted in a BG zone are designated in Sioux City Municipal Code 25.56.020. Sioux City Municipal Code 25.56.030 expressly prohibits certain uses in a BG zone, however, including, inter alia, the following: 5. Adult entertainment businesses, as defined in chapter 25.04 of this title. All nonconforming uses in the BG business zone may continue in operation under the provisions of Chapter 25.98 of the municipal code. All permits required herein shall be applied for within thirty days from the effective date of the ordinance codified in this chapter; 6. All uses not specifically enumerated as permitted uses in the BG zone are prohibited, subject to the right, set forth in Subchapter VII of Chapter 25.12, of an applicant to seek use interpretation by the director of building inspection. Sioux City Municipal Code 25.56.030. Prior to October 27, 2003, “adult entertainment businesses” — which are banned from a general commercial zone, such as the zone where Doctor John’s has since opened its Sioux City store — were defined by the Sioux City Municipal Code as follows: [Businesses which, as a part of or in the process of delivering goods and services, displays to its patrons specified sexual activities or specified anatomical areas in printed form or through any form of photographic medium or by use of male or female models. The following are examples of adult entertainment businesses but the list is not to be considered exclusive: adult book stores; adult motion picture theaters; adult video stores, model studios, introductory services, and escort service bureaus. Sioux City Municipal Code 25.04.020(A-2). Prior to October 27, 2003, “adult book store” was defined as follows: [A]n establishment having as a substantial portion of its stock in trade any of the following: books, periodicals, or magazines for sale when said stock in trade is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. Sioux City Municipal Code 25.04.020(A-2)(a). Similarly, prior to October 27, 2003, an “adult video store” was defined as follows: [A]n establishment which, having as a substantial portion of its video inventory for sale or rental for either on-premises or off-premises viewing, has films and/or videotapes having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. Such inventory must be offered in an area segregated by a gate or door and monitored and indicated as being off-limits to minors. Sioux City Municipal Code 25.04.020(A-2)(c). Under this ordinance, “substantial” was defined to mean “more than twenty-five percent of the book, periodical, magazine or video inventory are [sic] distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.” Id. at 25.04.02(A-2)(i). Thus, this ordinance defined “adult entertainment businesses” by application of a “25-percent rule,” under which businesses with twenty-five percent or more of their media stock-in-trade in “adult” media were “adult entertainment businesses,” and consequently, were banned from general commercial zones of Sioux City. b. The “Moratorium” Amendment Once City officials got wind of the intention of Doctor John’s to open a store in Sioux City, the City’s zoning requirements for “adult entertainment businesses” underwent a series of amendments. The first such amendment was the “Moratorium” Amendment passed on October 27, 2003, Ordinance 2003-000953, which imposed a moratorium on the opening of any “adult” businesses up to and including January 5, 2004. In a newspaper article published November 11, 2003, the City Attorney, James Abshier, was quoted as saying, “What prompted [the moratorium] was some discussion I had with Doctor John’s representatives” in which those representatives “told me they would be happy to live with the 25 percent limitation instead of stocking their business with all adult items.” Plaintiffs Appendix To [First] Summary Judgment Motion (docket no. 48-2) at 61-62 (Plaintiffs Complaint, Exhibit C). Similarly, a “Request For City Council Action” from Mr. Abshier, dated November 10, 2003, indicates that Doctor John’s had represented that its store would comply with the “25-per-cent rule” imposed by the existing ordinances and suggested that a moratorium would be appropriate to “preserve the integrity of the review process.” Id. at 59-60 (Plaintiffs Complaint, Exhibit B). The “Moratorium” Amendment itself indicates that it was based on the City Council’s findings that it had been advised and believed that the existing ordinance was “incomplete and inadequate in that it fails to regulate all aspects of the adult entertainment business,” that the existing ordinance inadequately regulated the locations at which adult entertainment businesses might locate, and that it was in the public interest to study zoning regulations to ensure their effectiveness, validity, and constitutionality. Defendants’ [First] Summary Judgment Appendix (docket no. 14) at 21. Ordinance 2003-000953 was amended on November 10, 2003, by Ordinance 2003-000985^ but that amendment did not alter the “sunset” date of January 5, 2004, for the moratorium. c. The January 2004 Amendments At the end of the moratorium period, the City Council again made significant amendments to its zoning ordinances with regard to adult entertainment businesses, consisting of the amendments identified herein for the sake of convenience as the January 2004 Amendments. Unlike the “Moratorium” Amendment, the January 2004 Amendments did not include any statement of findings by the City Council or any explanation of the impetus or rationale for those Amendments. i. Amended Ordinance 2004-0004. On January 5, 2004, the “sunset” date for the moratorium, the City Council adopted Ordinance 2004-0004, Section 1 of which provides, in pertinent part, as follows: A-2 “Adult Entertainment Business” means businesses which as a part of or in the process of delivering goods and services displays to its patrons specified sexual activities, specified anatomical areas through the use of adult media or male or female models, or offers for sale sexually oriented toys or novelties. The following are examples of adult entertainment business [sic] but the list is not to be considered exclusive: adult media store, adult motion picture theater, adult internet store, a sex shop, a video-viewing booth, a lingerie modeling studio or model studio. a. “Adult Internet Store” means a store that offers its patrons with or without chai'ge a computer with internet access for the purpose of accessing internet sites or that permits patrons to access internet sites that are characterized as displaying hard-core material or specified sexual activities. b. “Adult Media” means magazines, books, videotapes, movies, slides, cd-roms or other devices used to record computer images, or other media that are distinguished or characterized by their emphasis on matter depicting, describing, or relating to hard-core material. c. “Adult Media Store” means an establishment that rents and /or sells media, and that meets any of the following three tests: (1) 25 percent or more of the gross public floor area is devoted to adult media. (2) 25 percent or more of the stock-in-trade consists of adult media. (3) It advertises or holds itself out in any forum as “XXX,” “adult,” “sex,” or otherwise as a sexually oriented business other than an adult media store, or adult motion picture theater. d. “Adult Motion Picture Theater” means an establishment emphasizing or predominantly showing hard core material. e. “Establishment” means any business regulated by this title. f. “Gross Public Floor Area” means the total area of the building accessible or visible to the public, including showrooms, motion picture theaters, motion picture arcades, service areas, behind-eounter areas, storage areas visible from such other areas, restrooms (whether or not labeled “public”), areas used for cabaret or similar shows (including stage areas), plus aisles, hallways, and entryways servicing such areas. g. “Hard-core Material” means media characterized by sexual activity that includes one or more of the following: erect male organ; contact of the mouth of one person with the genitals of another; penetration with a finger or male organ into any orifice in another person; open female labia; penetration of a sex toy into an orifice; male ejaculation; or the aftermath of male ejaculation. Hard core material also means media characterized by the display of specified anatomical areas or specified sexual activities. j. “Media” means anything printed or written, or any picture, drawing, photograph, motion picture, film, videotape or videotape production, or pictorial representation, or any electrical or electronic reproduction of anything that is or may be used as a means of communication. Media includes but shall not necessarily be limited to books, newspapers, magazines, movies, videos, sound recordings, cd-roms, other magnetic media, and undeveloped pictures. m. “Sex Shop” means an establishment offering goods for sale or rent and that meets any of the followings tests: (1)The establishment offers for sale items from any two of the following categories: (1) adult media (ii) lingerie, or (iii) leather goods marketed or presented in a context to suggest their use for sadomasochistic practices; and the combination of such items constitutes more than 10 percent of its stock in trade or occupies more than 10 percent of its floor area. (2) More than 5 percent of its stock in trade consists of sexually oriented toys or novelties. (3) More than 5 percent of its gross public floor area is devoted to the display of sexually oriented toys or novelties. n. “Sexually Oriented Toys or Novelties” means instruments, devices, or paraphernalia either designed as representations of human genital organs or female breasts, or designed or marketed primarily for use to stimulate human genital organs. Sioux City Municipal Ordinance 2004-0004. Perhaps the most significant changes from the pertinent ordinances in force prior to October 2003 are the addition of the definition of “sex shop” in subsection (m) and the definition of “sexually oriented toys or novelties” in subsection (n), which have no correlates in earlier versions of the ordinance. ii. Amended Ordinance 2004-0024. On January 12, 2004, the City Council adopted Ordinance 2004-0024, which amended a subsection of Ordinance 2004-0004 and formally repealed the prior moratorium on “adult entertainment businesses,” which had expired on January 5, 2004. The amended ordinance provides as follows: Section 1: Subsection 25.04.020(A-2)(c) of the Sioux City Municipal Code is amended to read as follows: c. “Adult Media Store” means an establishment that rents and/or sells media, and that meets any of the following three tests: (1) 25 percent or more of the gross public floor area is devoted to adult media. (2) 25 percent or more of the media stock-in-trade consists of adult media. (3) It advertises or holds itself out in any forum as “XXX,” “adult,” “sex,” or otherwise as a sexually oriented business other than an adult media store, or adult motion picture theater. Sioux City Municipal Ordinance 2004-0024, Attachment “A” to Defendants’ Supplemental Brief (docket no. 23) (emphasis added). Thus, ordinance 2004-0024 clarified the twenty-five percent limitation on adult media in the definition of an “adult media store” by inserting the word “media” before “stock-in-trade” in Section 1(c)(2), so that the definition would be triggered at 25 percent of the “media stock-in-trade,” not 25 percent of all stock-in-trade. iii. Background to the summary judgment motions on the January 2004 Amendments. Almost completely absent from the preliminary injunction record was evidence of the kind that the City submitted in the course of litigating the first round of summary judgment motions in the City’s attempt to demonstrate that both citizens and City Council members had become concerned about the “secondary effects” of “adult entertainment businesses,” including Doctor John’s, during the fall of 2003 and winter of 2003-2004. The “secondary effects” the City identified were negative impacts on surrounding businesses, neighborhoods, property values, and crime. Doctor John’s has continually disputed the suggestion that its store in Sioux City has or could produce any such “secondary effects.” What was also entirely absent from the preliminary injunction record was evidence that the City’s decisionmakers considered any such materials concerning the “secondary effects” of “adult entertainment businesses” in the course of drafting, debating, and passing the “Moratorium” Amendment and the January 2004 Amendments. In the course of litigating the first round of summary judgment motions, however, the City contended that the decision-makers did consider such materials, pointing to affidavits of various City Council members. The City also contended that the January 2004 Amendments are modeled on, indeed almost verbatim copies from, suggested ordinances in an American Planning Association Planning Advisory Service Report (The APA Report) by Eric Camina Kelly and Connie Cooper, both of whom are former presidents of the American Planning Association (APA). Almost none of the material submitted by the City in the course of litigating the first round of summary judgment motions was information about any such “adult entertainment businesses” or “secondary effects” of such businesses in Sioux City, Iowa. Rather, the information submitted was studies, incident reports, and expert opinions relating to “adult entertainment businesses” and “secondary effects” in other cities. The exceptions included three affidavits by an investigator, Ray Matou-sek, hired by the City to “observe activities” at four “adult” businesses in Sioux City, Iowa. Those “adult” businesses did not include the Doctor John’s store at the center of this controversy, however. The City also submitted two affidavits of other persons sent to the Doctor John’s store in Sioux City, Iowa, both on February 17, 2005, concerning their estimates about stock-in-trade, accompanied by photographs. Defendants’ Appendix To [First] Motion For Summary Judgment And In Resistance To Plaintiffs Motion For Summary Judgment (docket no. 56), Vol. I, 1-15. Although these affidavits concerning “investigations” of purported “adult entertainment businesses” in Sioux City, Iowa, detailed activities observed in the businesses, most did not mention the “secondary effects” identified by the City, such as negative impacts on surrounding businesses, neighborhoods, property values, and crime. The exception is one affidavit, concerning the October 30, 2004, visit to the “Adult Emporium,” in which the investigator suggests that a person in an adjacent viewing booth attempted to “entice [the investigator] with his lips and tongue through [a] hole [in the wall],” and that a female in the parking lot asked if the investigator “want[ed] a date.” Defendants’ Appendix [To First Motion For Summary Judgment] at 582. There were no police reports concerning any incidents near any of these four businesses or near the Doctor John’s store in Sioux City. Finally, none of the “investigations” of purported “adult entertainment businesses” in Sioux City, Iowa, was conducted prior to the enactment of the January 2004 Amendments. Doctor John’s has not sought rezoning of the intended location of its Sioux City store to permit an “adult entertainment business” as defined in these amended ordinances at that location. Nor does the record indicate that Doctor John’s has sought to relocate its Sioux City store to an area where “adult entertainment businesses” are permitted, such as a General Business — Metropolitan (BG-M) zone, like the downtown area of Sioux City, where the City contends that there are a number of vacant locations. One of the underlying issues in this lawsuit, of course, is whether there is any reason that Doctor John’s should have to take such steps. d. The December 2004 Amendments In December 2004, some time after the court had enjoined enforcement of the January 2004 Amendments, the City passed additional amendments to the pertinent ordinances regulating “adult entertainment businesses,” which are identified herein for the sake of convenience as the December 2004 Amendments. The December 2004 Amendments expressly superseded the January 2004 Amendments. Doctor John’s contends that, at the time that the December 2004 Amendments were passed, the City Council simultaneously “grandfathered” the Sioux City Doctor John’s store at its present location, allowing it to continue operations there. There is, however, an on-going dispute concerning licensing requirements, which are now at issue in this ruling. The court also notes that, unlike the January 2004 Amendments, the December 2004 Amendments contain extensive statements of the purposes and findings upon which those Amendments are based. i. Amended Ordinance 2004-1059. The first of the December 2004 Amendments, Sioux City Municipal Ordinance 2004-1059, enacted on December 13, 2004, states, inter alia, as part of the basis for enactment of that amendment, that there is documented evidence that sexually oriented and adult entertainment businesses are inappropriate land uses for certain areas of the community, and have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, and are often associated with negative aesthetics, secondary effects including crime, blight, litter, and the downgrading of property values.... Sioux City Municipal Ordinance 2004-1059, Appendix To Defendant’s [First] Motion For Summary Judgment (docket no. 56) at 79 (third “whereas” paragraph); see also id., § 25.02.027 (“Purpose and findings with respect to sexually oriented businesses”). The amended ordinance excludes “sexually oriented businesses,” as defined therein, from areas zoned in various classifications, including BG and -C overlay areas, such as the area in which the Doctor John’s Sioux City store is located. Id. §§ 3-5. In pertinent part, the definitional provisions of this amendment provide as follows: Section 2: Section 25.04.020(S-12) of the Sioux City Municipal Code is amended by adding the following new definitions: S-12 “Sexually oriented business” means a “sexual device shop,” “sexual encounter center,” or “sexual escort agency.” c. “Features” means to offer the goods or services so modified by that term to the public as one of the intended profit-making objectives of the commercial enterprise, which enterprise holds itself forth to the public, through marketing, advertising, signage, promotions, or merchandise display, as a place where said goods or services may be obtained. * * * g. “Regularly” means and refers to the consistent and repeated doing of the act so described. i. “Sexual Device” means any three (3) dimensional object designed and marketed for stimulation of the male or female human genital organ or anus or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos, vibrators, penis pumps, and physical representations of the human genital organs, and shall also include certain devices with non-sex related utility, such as leather whips, straps, and ligatures when said devices are marketed in a context promoting sexual or sadomasochistic uses. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy. j. “Sexual Device Shop” means a commercial establishment that regularly features sexual devices. Nothing in this definition shall be construed to include any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services, nor shall this definition be construed to include commercial establishments which do not restrict access to any portion of their premises by reason of age. Id. at § 2. “Sexual Device Shop” is not a category of “adult entertainment business” that previously appeared in any Sioux City ordinances. Moreover, where the January 2004 Amendments defined a “sex shop,” inter alia, in terms of a store in which “[mjore than 5 percent of its stock in trade consists of’ or “[mjore than 5 percent of its gross public floor area is devoted to” sexually oriented toys or novelties, see Sioux City Municipal Ordinance 2004-0004(A-2)(m)(2) & (m)(3), this December 2004 Amendment does not include any triggering percentage. Instead, it defines a “sexual device shop” as a store that “regularly features” even one “sexual device,” and also adds specific exceptions for “any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services,” and still more critically here, any “commercial establishments which do not restrict access to any portion of their premises by reason of age.” Sioux City Municipal Ordinance 2004-1059 § 2 ((S-12)(j)). Interestingly, there is no “combination” definition of a “sexually oriented business,” based on “combinations” of two or more specified categories of “non-media” merchandise, such as “lingerie” and “sadomasochistic leather goods,” or “non-media” and “media” merchandise, in any of the December 2004 Amendments, as there was in the January 2004 Amendments. This amended ordinance includes a “sev-erability clause,” which provides as follows: This ordinance and each section and provision hereunder are hereby declared to be independent divisions and subdivisions and, notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of this ordinance, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Sioux City Municipal Ordinance 2004-1059 § 6. ii. Amended Ordinance 2004-1060. Sioux City Municipal Ordinance 2004-1060, also enacted on December 13, 2004, also contains statements of purpose and findings supporting its enactment, including, inter alia, the following: [T]he City Council desires to minimize and control the adverse effects of the enterprises regulated herein and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from crime; preserve the quality of life and the urban setting; preserve the property values and character of surrounding neighborhoods and deter negative aesthetics and the spread of urban blight.... Sioux City Municipal Ordinance 2004-1060, Appendix To Defendant’s [First] Motion For Summary Judgment (docket no. 56) at 84. The substantive portions of this amendment of interest here amend Section 25.04.020(A-2) of the Sioux City Municipal Code to redefine “adult bookstore or adult video store,” as follows: A-2 “Adult Entertainment Business” shall mean an “adult bookstore or adult video store,” “adult cabaret,” “adult model studio,” “adult motel,” “adult motion picture theater,” or “adult theater.” a. “Adult Bookstore or Adult Video Store” means a commercial establishment that: (1) has a substantial portion of its displayed merchandise which consists of, or (2) has a substantial portion of the wholesale value of its displayed merchandise which consists of, or (3) has a substantial portion of the retail value of its displayed merchandise which consists of, or (4) derives a substantial portion of its revenues from the sale or rental, for any form of consideration of, or (5) maintains a substantial section of its sales or display space for the sale or rental, for any form of consideration, of any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the exhibition or description of “specified sexual activities” or “specified anatomical areas.” The term “Adult Bookstore or Adult Video Store” shall also include a commercial establishment which regularly maintains one or more “Adult Arcades.” “Adult Arcade” means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices regularly show images distinguished or characterized by their emphasis upon matter exhibiting or describing “specified sexual activities” or specified “anatomical areas,” and where the booth(s) or room(s) in which such images are shown contain less than twenty (20) individual seats for patrons. g. “Distinguished or Characterized by their Emphasis Upon” means the dominant or principal theme of the object described by such phrase. For instance, when the phase [sic] refers to films “which are distinguished or characterized by their emphasis upon the exhibition or description of Specified Sexual Activities or Specified Anatomical [A]r-eas,” the films so described are those whose dominant or principal character and theme are the exhibition or description [of] “specified anatomical areas” or “specified sexual activities.” h. “Established” shall mean and include any of the following: (1) The opening or commencement of any adult entertainment business as a new business; or (2) The conversion of an existing business, whether or not an adult entertainment business, to another adult entertainment business. i. “Features” means to offer the goods or services so modified by that term to the public as one of the intended profit-making objectives of the commercial enterprise, which enterprise holds itself forth to the public, through marketing, advertising, signage, promotions, or merchandise display, as a place where said goods or services may be obtained. m. “Regularly” means and refers to the consistent and repeated doing of the act so described. o. “Specified Anatomical Areas” shall mean human genitals, anus, cleft of the buttocks, or the female breast. p. “Specified Sexual Activities” means any of the following: (1) sex acts, normal or perverted, including intercourse, oral copulation, masturbation or sodomy; or (2) excretory functions as a part of or in connection with any of the activities described in (1) above. q. “Substantial” means more than twenty-five percent (25 %) of the item so modified. Sioux City Municipal Ordinance 2004-1060, Appendix To Defendant’s [First] Motion For Summary Judgment (docket no. 56) at 86-87. Thus, this amendment refines the definitions of “adult bookstore” and “adult video store” found in previous ordinances. As with Sioux City Municipal Ordinance 2004-1059, this amendment also excludes “adult entertainment businesses,” as defined therein, from areas zoned in various classifications, including BG and -C overlay areas, such as the area in which the Doctor John’s Sioux City store is located. Id. §§ 4-6, 8. This amended ordinance also includes a “sever-ability clause” essentially identical to the one found in Sioux City Municipal Ordinance 2004-1059. See Sioux City Municipal Ordinance 2004-1060 § 9. iii. Amended Ordinance 2004-1061. The final December 2004 Amendment at issue here is Sioux City Municipal Ordinance 2004-1061, which adds a new chapter to the Sioux City Municipal Code establishing licensing requirements and regulations for “adult oriented businesses” with the City. See Sioux City Municipal Ordinance 2004-1061, Appendix To Defendant’s Second Motion For Summary Judgment (docket no. 117) at 148-59. This amendment is also based on extensive “findings” and a statement of “purpose.” See id., “Whereas” clauses, § 1 (4.75.010). Generally, this amendment incorporates definitions of various categories of “adult entertainment businesses” found in other December 2004 Amendments and requires such businesses to obtain licenses to operate within the City, even in zones where they are otherwise permitted. See id. § 2 (4.75.020 Definitions), § 4 (4.75.040 License required). Provisions of particular interest here include the following definitions of licensees and other persons with an “influential interest” whom the City may consider in deciding whether or not to grant the required license: 11. “Influential interest” means any of the following: a. The actual power, directly or indirectly, to control the operation, management or policies of a business or entity, b.Ownership of a financial interest of thirty percent (30%) or more of a business or of any class of voting securities of a business; or e. Holding an office (e.g., president, vice president, secretary, treasurer, etc.) or directorship in a legal entity which operates the adult oriented business. 12. “Licensee” shall mean a person in whose name a license to operate an adult oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for an adult oriented business license. 23. “Specified Criminal Activity” means any of the following specified crimes for which less than five years elapsed since the date of conviction, guilty plea, plea of nolo contendere, or the date of release from confinement for the conviction, guilty plea, or plea of nolo contendere, whichever is the later date: a. vice offenses (Iowa Code Ch. 725); b. obscenity offenses (Iowa Code Ch. 728); c. sexual abuse offenses (Iowa Code Ch. 709); d. money laundering (Iowa Code § 706B.2); or e. controlled substances offenses (Iowa Code Ch. 124, Div. IV); or any offense committed in another jurisdiction that, had the predicate acts been committed in Iowa, would constitute any of the foregoing specified Iowa offenses. Sioux City Municipal Ordinance 2004-1061 § 2 (4.75.020). This amendment provides, further, that “[i]f a person who wishes to operate an adult oriented business is other than an individual, each person with an influential interest in the business shall sign the application for a license as applicant. Each applicant must be qualified under Section 4.75.050 and each applicant shall be considered a licensee if a license is granted.” Id. at § 4(4) (4.75.040(4)). This amendment also provides that “The Administrative Services/City Clerk shall issue a license unless: ... f. [a]n applicant has been convicted of or pled guilty or nolo contendere to a specified criminal activity, as defined in this ordinance.” Id. § 5 (5.75.050 Issuance of license). This amendment also grants a “De Facto Temporary License” to existing adult oriented businesses, as follows: All existing adult oriented businesses are hereby granted a De Facto Temporary License to continue operation for a period of one hundred eighty (180) days following the effective date of this ordinance [December 18, 2004], By the end of said one hundred eighty days, all adult oriented businesses must conform to and abide by the requirements of this chapter. Sioux City Municipal Ordinance 2004-1061 § 17 (4.75.160 Applicability of ordinance to existing businesses). Like the other December 2004 Amendments, this amended ordinance contains a “severability” clause. See id. at § 21. The Doctor John’s store in Sioux City has never made any attempt to comply with the licensing provisions, but neither has the City made any attempt to enforce those provisions against Doctor John’s. II. LEGAL ANALYSIS A. Standards For Summary Judgment And Reconsideration Rule 56 of the Federal Rules of Civil Procedure provides that a prosecuting or defending party may move, at any time, for summary judgment in that party’s favor “as to all or any part” of the claims at issue. Fed. R. Crv. P. 56(a) (summary judgment for claimant) & (b) (summary judgment for defending party). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Crv. P. 56(c). As this court has explained on a number of occasions, applying the standards of Rule 56, the judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Quick, 90 F.3d at 1377 (same). The court is prohibited from making credibility judgments or engaging in fact-finding from conflicting evidence on a motion for summary judgment. Mershon v. St. Louis Univ., 442 F.3d 1069, 1075 (8th Cir.2006); Yates v. Rexton, Inc., 267 F.3d 793, 800 (8th Cir.2001). Procedurally, the moving party bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir.1998); Reed v. Woodruff County, Ark, 7 F.3d 808, 810 (8th Cir.1993). When a moving party has carried its burden under Rule 56(c), the party opposing summary judgment is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka ex. rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997), cert. denied, 523 U.S. 1040, 118 S.Ct. 1336, 140 L.Ed.2d 498 (1998); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995). An issue of material fact is “genuine” if it has a real basis in the record. Hartnagel, 953 F.2d at 394 (citing Matsushita Elec. Indus. Co., 475 U.S. at 586-87, 106 S.Ct. 1348). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment,” i.e., are “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach, 49 F.3d at 1326; Hartnagel, 953 F.2d at 394. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). Ultimately, the necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994). The motions before the court include the City’s motion to reconsider the court’s prior summary judgment ruling. In Wells’ Dairy, Inc. v. Travelers Indemnity Company of Illinois, 336 F.Supp.2d 906 (N.D.Iowa 2004), this court found that Rule 54(b) provides authority for a court to reconsider any interlocutory order, including a prior ruling on a motion for summary judgment. Wells’ Dairy, Inc., 336 F.Supp.2d at 909 (citing cases). Rule 54(b) provides that, unless the court certifies the order for interlocutory appeal, “any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the ri