City repeals ordinance, business can continue as usual at Rear End
By Adam Hocking
MARSHFIELD — Seeking to avoid a prolonged and potentially costly legal battle, the Marshfield Common Council has repealed the part of its municipal code that stated that establishments with a liquor license could not also permit nude dancing. The ordinance in question is Section 9.32 (8).
The city’s action is a response to a lawsuit filed last year by the nude dancing establishment the Rear End, which had long operated in the town of Cameron prior to being added to the city of Marshfield last year through a cooperative boundary plan and agreement between the municipalities. Repealing the ordinance paves the way for the Rear End to conduct “business as usual,” said City Administrator Steve Barg.
The lawsuit challenged the constitutionality of the land deal that brought the Rear End and 92 acres in total from the town of Cameron into the city of Marshfield. It also challenged, on First Amendment grounds, the constitutionality of the ordinance banning nude dancing.
A stipulation order agreed to by the city and Rear End said that if the city repealed its ordinance, the Rear End would no longer challenge the land agreement. The stipulation order also dismissed the town of Cameron and the Marshfield Electric and Water Department from the lawsuit with the repeal of the ordinance.
The stipulation order said that with the repeal of the ordinance, if the lawsuit were to continue, the only future litigation would revolve around “damages issues associated with the First Amendment challenges.”
The lawsuit could continue, Barg said, if the Rear End can show financial damages were incurred by the business as a result of the ongoing dispute.
“We’re certainly questioning the degree to which they can demonstrate damages were incurred, but I think it’s premature to identify whether that’s the case or not,” Barg said.
The city has thus far not had to pay for its legal services in the dispute beyond instances where the city attorney has been involved with the matter. The legal costs are being covered through the League of Wisconsin Municipalities Mutual Insurance. The legal defense in the case is provided by that same entity. Barg indicated it is possible that if the city continued to insist on maintaining its ordinance, it may have had to begin paying its own legal expenses.
Barg said repealing the ordinance does not necessarily open the door for existing businesses to showcase nude dancing in their establishments. According to Marshfield’s city code, only areas that are zoned as general industrial areas can permit “sexually-oriented land use,” and such a use would require a conditional use permit.
Barg added “the council may wish to have” a new ordinance drafted to replace the one that has been repealed, but that ordinance would not be aimed at reigniting a conflict with the Rear End and could take six to 12 months to be developed and approved.
“(A new) ordinance would be aimed at trying to draw some lines for the future,” Barg said.