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Lingerie boutique loses — again — to Midvale

SHARE Lingerie boutique loses — again — to Midvale

Doctor John's Lingerie and Novelty Boutique has once again been knocked to its knees by a court ruling, but the Iowa-based chain continues to roar with indignation and has pledged to continue fighting.

The most recent court battle stemmed from a police raid in late February, when a handful of Midvale police officers surprised their local Doctor John's store with a search warrant. Officers were there to take possession of "sexually oriented" items such as DVDs and adult toys.

Armed with cameras and careful legal instructions, police took only a few products but documented others and told store management to stop selling "adult" products.

The roots of the case can be traced back to litigation that went all the way to the Utah Supreme Court in 2001. Doctor John's ultimately lost that case and was ordered to either apply for a sexually oriented business license in Midvale or operate within the confines of its general business license.

The store complied for a few years. But at some time in 2007, it reintroduced certain sexual devices and what the city said was "pornographic" films into the inventory of its Midvale shop, thereby prompting the search and seizure.

"We're trying to find the line," Doctor John's attorney, Andrew McCullough, told the judge during a court hearing Friday. "All that we're desperately asking you to do is define the line."

McCullough, who rents an office upstairs from the Midvale lingerie shop, was referring to a line that would inform his client how much "sexually oriented" material was allowed in the store.

Third District Judge Denise Lindbergh emphatically declined to define such a line, saying it wasn't her job. She also rejected McCullough's contention that he was trying to find it, in light of evidence that the shop's management had never approached the city with that question.

"You need to give the city the opportunity to take action or clarify its position and then to follow an orderly process of appeal if that is not a decision that is to the liking of Doctor John's," she said, ruling from the bench. "It's not my role to determine what those requirements are but rather to review the city's interpretation of that ordinance."

Lindbergh found Doctor John's to be in violation of the injunction upheld in 2001. She also awarded court and attorney's fees to Midvale, which hired a private attorney for the case.

"We think the court got it right," said that attorney, Blake Hamilton. "We think they went about this the wrong way."

Midvale attorney Craig Hall added that the city already defined the line in its ordinance that says sexually oriented products can't be among the primary purposes of a business that doesn't have a special license.

McCullough, a former Libertarian candidate for state attorney general, said Friday that the appeal for this case is all but written. He thinks he'll have more success in the appellate courts, he added, but didn't articulate the reasons for that belief.

Meanwhile, McCullough is fighting another battle between Doctor John's and the city of Roy over essentially the same issue. The Weber County shop was recently defeated in a federal court of appeals, which ordered it to restrict its hours and require its employees to get special licenses.

His enthusiasm not dampened by Friday's ruling, McCullough said he plans to keep fighting until he retires, and he's not planning on retiring soon.

Hall feels the same way. "We're not done yet," he said with a grin.


E-mail: rpalmer@desnews.com