IN THE CIRCUIT COURT OF

COLE COUNTY, MISSOURI

MICHAEL OCELLO , A Taxpayer )

6161 Clifton Oaks Place, )
St. Louis, Missouri 63129, )
)
and )
)
THE MISSOUR I ASSOCIATION OF CLUB )
EXECUTIVES , a Missouri Not for ) Case No.: _________________________
Profit Corporation )
Post Office Box 774 )
Jefferson City, Missouri 65102 )
)
and )
)
WAYNESVILLE RETAIL 27, INC ., an Ohio )
Corporation dba the Lions Den )
Adult Superestore )
25965 Highway 17 )
Waynesville, Missouri 65583, )
)
and )
)
SALINE RETAIL 28, INC ., an Ohio ) Verified Petition for Declaratory Judgment,
Corporation dba the Lions Den ) And for Injunctive Relief
Adult Superestore )
11633 Saline J Highway )
Nelson, Missouri 65347, )
)
and )
)
STEELE RETAIL 37, L.L.C., an Ohio )
Limited Liability Company dba )
The Lions Den Adult Superestore )
36 East Outer Road )
Steele, Missouri 63877, )
)
and )
)
PASSIONS IN COLUMBIA , INC ., )
A Missouri Corporation dba )
Passions Adult Video )
1108 Business Loop 70 East )
Columbia, Missouri 65201, )
)
and )
PASSIONS VIDEO , INC ., )
A Missouri Corporation dba )
Passions Video )
17701 Old 5 Drive )
Boonville, Missouri 65233, )
)
and )
)
POP ROXX VIDEO L.L.C., a )
Missouri Limited Liability )
Company dba Poproxx )
10025 Highway 67 S, Suite B )
Poplar Bluff, Missouri 63901, )
)
and )
)
SCOPE PICTURES OF MISSOURI, INC ., )
A Missouri Corporation dba )
Bazooka’s Showgirls )
1717 Main Street )
Kansas City, Missouri 64018, )
)
and )
)
GENOVA’S CHESTNUT LOUNGE, INC ., )
A Missouri Corporation dba the )
Shady Lady Lounge )
2800 East 12th Street )
Kansas City, Missouri 64127, )
)
and )
)
TIFFANY ’S LAST CHANCE, INC ., )
A Missouri Corporation dba Pure )
13200 East 350 Highway )
Kansas City, Missouri 64138, )
)
and )
)
COW L.L.C., a Missouri Limited )
Liability Company dba The Pony )
10025 Highway 67 S )
Poplar Bluff, Missouri 63901, )
)
and )
)

-2-
CAPPS AND JONES MO L.L.C., a )
Missouri Limited Liability )
Company dba The Pony )
1750 South Glenstone Avenue )
Springfield, Missouri 65808, )
)
and )
)
MO WILDSIDE, L.L.C., a Missouri Limited )
Liability Company dba Wild Side )
10025 Highway 67 S Suite C )
Poplar Bluff, Missouri 6390, )
)
and )
)
AMY DOE, A Natural Person Who )
Appears Pseudonymously to Protect to )
Her Privacy, With the Business Address )
1717 Main Street )
Kansas City, Missouri 64018, )
)
and )
)
BETTY DOE, A Natural Person Who )
Appears Pseudonymously to Protect to )
Her Privacy, With the Business Address )
1717 Main Street )
Kansas City, Missouri 64018, )
)
and )
)
CINDY DOE, A Natural Person Who )
Appears Pseudonymously to Protect to )
Her Privacy, With the Business Address )
13200 East 350 Highway )
Kansas City, Missouri 64138, )
)
)
Plaintiffs, )
)
– VS – )
)
)

-3-
CHRIS KOSTER , In His Official )
Capacity as Attorney General of the )
State of Missouri )
Office of the Attorney General )
Supreme Court Building )
207 West High Street )
Jefferson City, Missouri 65101, )
)
Do Not Serve This Defendant )
The Assistant Attorney General )
Has Agreed to Accept Service )
)
Defendant. )

VERIFIED PETITION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

COME NOW THE PLAINTIFFS , AND EACH OF THEM , who for their Petition for Declaratory

Judgment and Injunctive Relief do state as follows:

– PARTIES –

1. Plaintiff Michael Ocello is, and at all times relevant hereto was, a resident, citizen

and taxpayer in and of the State of Missouri, with his residence in Oakville, Saint Louis County,

Missouri. He is also an elected member of the Melville School District Board of Education, an

appointed member of the Missouri Small Business Regulatory Fairness Board. He is President of

VCG Holdings, a national chain of adult cabarets, and President of the Association of Club

Executives, an adult industry trade group. Plaintiff notes these affiliations for purposes of

identification only, and appears here individually, and solely in his behalf as a taxpayer of this state.

2. Plaintiff the Missouri Association of Club Executives, Inc. (“MoACE”) is a not-

for-profit corporation organized and existing under the laws of the State of Missouri, and in good

standing, with its principal place of business in Jefferson City, Cole County, Missouri, representing

the interests of its constituent members who are engaged in the operation of adult entertainment

establishments in Missouri.

-4-
 3. Among the specific and primary purposes of MoACE are “to educate the general

public and to positively promote and preserve gentlemen’s clubs in Missouri,” and “to promote and

protect the rights of gentlemen’s club owners generally and the association members particularly.”

MoACE has standing to bring this action on behalf of its members to promote and to protect these

purposes and interests. It may sue as a representative of its members because:

a. Each of its members has standing to sue in its own right, as an

adult establishment adversely affected by the contested
legislation;

b. The interests it seeks to protect are germane to its purposes,

as outlined above, and;

c. No claims for individual relief or money damages are

presented here, and thus neither the claims asserted nor the
declaratory and injunctive relief sought requires the
participation of all its individual members.

4. Plaintiff Waynesville Retail 27, Inc., is, and at all times relevant hereto was, a

corporation organized under the laws of the State of Ohio, and in good standing, operating and

authorized to do business in and under the laws of the State of Missouri, which does business as the

Lions Den Adult Superstore, in Waynesville, Pulaski County, Missouri.

5. Plaintiff Saline Retail 28, Inc., is, and at all times relevant hereto was, a corporation

organized under the laws of the State of Ohio, and in good standing, operating and authorized to do

business in and under the laws of the State of Missouri, which does business as the Lions Den Adult

Superstore, in Nelson, Saline County, Missouri.

6. Plaintiff Steele Retail 37, L.L.C., is, and at all times relevant hereto was, a limited

liability company organized under the laws of the State of Ohio, and in good standing, operating and

authorized to do business in and under the laws of the State of Missouri, which does business as the

Lions Den Adult Superstore, in Steele, Pemiscot County, Missouri.

-5-
 7. Plaintiff Passions in Columbia, Inc. is a corporation organized, operating and

licensed to do business under the laws of the State of Missouri, and in good standing, with its

principal place of business in Columbia, Boone County, Missouri, and which operates at that

location an establishment doing business as Passions Video.

8. Plaintiff Passions Video, Inc. is a corporation organized, operating and licensed to

do business under the laws of the State of Missouri, and in good standing, with its principal place

of business in Boonville, Cooper County, Missouri. and which operates at that location an

establishment doing business as Passions Video.

9. Plaintiff Pop Roxx Video, L.L.C., is a limited liability company organized, operating

and licensed to do business under the laws of the State of Missouri, and in good standing, with its

principal place of business in Poplar Bluff, Butler County, Missouri. and which operates at that

location an establishment doing business as Pop Roxx Video.

10. Plaintiffs Waynesville Retail 27, Inc., Saline Retail 28, Inc., Steele Retail 37,

L.L.C., Passions In Columbia, Inc., Passions Video, Inc., Pop Roxx Video, L.L.C., and each of

them, operate at their respective principal business locations an establishment at which non-obscene,

constitutionally protected books and videos with sexually explicit content can be purchased by

adults, and at which adults can view such videos in private booths on site, an establishment that is

thus both an “adult bookstore” and an “adult video store” within the meaning of R.S. Mo. § Mo. §

531.528(1), and also operate as an “adult arcade” within the meaning of R.S. Mo. § 531.528(1)(f).

All these plaintiffs are open a period of hours after midnight.

-6-
 11. Plaintiff Scope Pictures of Missouri, Inc., doing business as Bazooka’s Showgirls

Missouri, is a corporation organized and operating under the laws of the State of Missouri, and in

good standing, which operates an establishment, known as Bazooka’s Showgirls, in Kansas City,

Jackson County, Missouri, which is an adult cabaret within the meaning of R.S. Mo. § 531.528(2),

at which nude dancers perform constitutionally protected, erotic dance performances for the

entertainment of patrons and guests. No alcohol is sold, served or consumed at this establishment.

12. Plaintiff Genova’s Chestnut Lounge, Inc., doing business as the Shady Lady

Lounge, is a corporation organized and operating under the laws of the State of Missouri, and in

good standing, which operates an establishment, known as the Shady Lady Lounge, in Kansas City,

Jackson County, Missouri, which is an adult cabaret within the meaning of R.S. Mo. § 531.528(2),

at which semi-nude dancers perform constitutionally protected, erotic dance performances for the

entertainment of patrons and guests. Alcohol is sold, served and consumed at this establishment.

13. Plaintiff Tiffany’s Last Chance, Inc., doing business as Pure, is a corporation

organized and operating under the laws of the State of Missouri, and in good standing, which

operates an establishment, known as Pure, in Kansas City, Jackson County, Missouri, which is an

adult cabaret within the meaning of R.S. Mo. § 531.528(2), at which semi-nude dancers perform

constitutionally protected, erotic dance performances for the entertainment of patrons and guests.

Alcohol is sold, served and consumed at this establishment.

14. Plaintiff Cow, L.L.C., doing business as The Pony, is a limited liability company

organized, operating and licensed to do business under the laws of the State of Missouri, and in good

standing, which operates an establishment, known as The Pony, in Poplar Bluff, Butler County,

Missouri, which is an adult cabaret within the meaning of R.S. Mo. § 531.528(2), at which semi-

nude dancers perform constitutionally protected, erotic dance performances for the entertainment of

patrons and guests. Alcohol is sold, served and consumed at this establishment.

-7-
 15. Plaintiff Mo Wildside, L.L.C., doing business as Wild Side, is a limited liability

company organized, operating and licensed to do business under the laws of the State of Missouri,

and in good standing, which operates an establishment, known as Wild Side, in Poplar Bluff, Butler

County, Missouri, which is an adult cabaret within the meaning of R.S. Mo. § 531.528(2), at which

nude dancers perform constitutionally protected, erotic dance performances for the entertainment of

patrons and guests. No alcohol is sold, served and consumed at this establishment.

16. Plaintiff Capps and Jones Mo, L.L.C., doing business as The Pony, is a limited

liability company organized, operating and licensed to do business under the laws of the State of

Missouri, and in good standing, which operates an establishment, known as the Pony, in Springfield,

Greene County, Missouri, which is an adult cabaret within the meaning of R.S. Mo. § 531.528(2),

at which semi-nude dancers perform constitutionally protected, erotic dance performances for the

entertainment of patrons and guests. Alcohol is sold, served and consumed at this establishment.

17. Plaintiff Amy Doe is, and at all times relevant hereto was an adult, and an actual and

identifiable natural person, identified pseudonymously herein in order to protect her privacy, who

is a citizen and resident of the State of Kansas, and a taxpayer of the State of Missouri, who resides

in Kansas City, Wyandotte County, Kansas, who at all times relevant hereto performs and has

performed constitutionally protected, non-obscene and erotic dance performances in one or more of

the Plaintiff adult cabarets to earn her living.

18. Plaintiff Betty Doe is, and at all times relevant hereto was an adult, and an actual and

identifiable natural person, identified pseudonymously herein in order to protect her privacy, who

is a citizen, resident and a taxpayer of the State of Missouri, who resides in Kansas City, Jackson

County, Missouri, who at all times relevant hereto performs and has performed constitutionally

protected, non-obscene and erotic dance performances in one or more of the Plaintiff adult cabarets

to earn her living.

-8-
 19. Plaintiff Cindy Doe is, and at all times relevant hereto was an adult, and an actual

and identifiable natural person, identified pseudonymously herein in order to protect her privacy,

who is a citizen, resident and a taxpayer of the State of Missouri, who resides in Kansas City,

Jackson County, Missouri, who at all times relevant hereto performs and has performed

constitutionally protected, non-obscene and erotic dance performances in one or more of the Plaintiff

adult cabarets to earn her living.

20. Defendant Chris Koster is, and at all times relevant hereto was the Attorney General

of the State of Missouri, and is such is authorized by R.S. Mo. § 27.060 to appear in courts of proper

jurisdiction and to represent the state, and defend and advance its interests, rights and claims, in all

cases in law and in equity, and to appear in any case in which the interests of the state are involved.

He is sued here in his official capacity for purposes of obtaining declaratory and injunctive relief.

21. Defendant General Koster is the proper party to be sued and served in connection

with the claims asserted in this action, and copies of this Petition are being served upon him.

– FACTS COMMON TO ALL CLAIMS –

22. At issue in this case are additions and amendments to Chapter 573 of the Revised

Statutes of Missouri, which together impose a series of draconian restrictions, statewide, on the

operation of adult businesses at which constitutionally protected expression is presented and sold.

23. The statutory provisions at issue were adopted by the General Assembly in plain

violation of the law governing the legislative process in Missouri, and violate the First and

Fourteenth Amendments to the United States Constitution in no fewer than a half-dozen ways.

Notwithstanding that, the contested Act was signed into law by Governor Nixon on June 25, 2010.

-9-
 – Senate Bills 586 and 617 –

24. On January 6, 2010, Senate Bills 586 and 617 were introduced in the 95th Missouri

Senate. Each proposed the adoption of six new sections to Chapter 573 of the Revised Statutes of

Missouri – Sections 573.525, 573.528, 573.531, 573.534. 573.537 and 573.540 – the restrictions

and requirements of which are set forth in detail later in this Petition.

25. The bills had their second reading on January 13, 2010, and were referred to the

Senate Committee on the Judiciary and Civil and Criminal Jurisprudence that day. A committee

hearing was held on January 25, 2010 and the bills were reported out of committee with a “do pass”

recommendation as a Senate Committee Substitute (SCS) bill on February 1, 2010.

26. On February 4, 2010, Senator Bartle, the original sponsor of Senate Bill 586,

successfully offered a Senate Substitute (SS) for the SCS versions of S.B. 586 and 617. The bills

were thereafter denominated as Senate Substitute for Senate Committee Substitute for Senate Bills

Nos. 586 and 617, or, in the argot of the General Assembly, “SS for SCS SBs 586 and 617.”

27. Thus named, the bills had their third reading, and were passed by the Missouri Senate,

on February 11, 2020. They had their first reading in the Missouri House of Representatives the same

day, and after their second reading, on February 15, 2010.

28. On March 30, 2010, SS for SCS SBs 586 and 617 was were referred to the House

Small Business Committee, which conducted a hearing on the bill on April 7, 2010, and which voted

the bill out of committee, with a “do pass with House Committee Substitute” recommendation, on

April 15, 2010. This was HCS SS SCS SBs 586 & 617, and reduced what began as Senate Bills 586

and 617 to the form in which they would ultimately pass the General Assembly.

29. Approved as amended by the House Small Business Committee, the bill – now known

as HSC SS SCS SBs 586 & 617 – was referred as a matter of course to the House Rules Committee,

where it received a “do pass” recommendation on April 26, 2010.

-10-
 30. The bill went to the House floor, where several amendments were offered, and

defeated, on May 6, 2010, and several more were offered but defeated, withdrawn or ruled out of

order on May 12, 2010. HSC SS SCS SBs 586 & 617 had its third and final reading in, and was

passed by the House of Representatives on May 13, 2010, after which it was transmitted to the

Senate, which concurred in the House Committee Substitute and passed the bill the same day. A

copy of the bill, as passed, is attached hereto as Exhibit 1.

31. The bill, thus amended, was enrolled by the Senate Rules Committee, signed by the

Speaker of the House and the President of the Senate, and sent to the Governor for his signature, all

on May 25, 2010. As previously noted, it was signed into law on June 25, 2010.

– The Legislative Fiscal Impact Process –

32. The Committee on Legislative Research is a creature of the Missouri Constitution,

Article III, Section 35 of which provides:

There shall be a permanent joint committee on legislative research,

selected by and from the members of each house as provided by law.
The general assembly, by a majority vote of the elected members,
may discharge any or all of the members of the committee at any time
and select their successors. The committee may employ a staff as
provided by law. The committee shall meet when necessary to
perform the duties, advisory to the general assembly, assigned to it by
law. The members of the committee shall receive no compensation in
addition to their salary as members of the general assembly, but may
receive their necessary expenses while attending the meetings of the
committee.

33. Chapter 23 of the Revised Statutes of Missouri permits the Committee on Legislative

Research to retain a director, and a staff, and charges the Committee with certain duties, one of

which is central to the controversy now at bar.

34. Each year, literally thousands of bills are introduced in the General Assembly. In 2010

alone, as of this writing, more than Four Hundred Fifty (450) bills have been introduced in the

Senate and One Thousand Five Hundred (1,500) in the House.

-11-
 35. Under R.S. Mo. § 23.140(1), neither house may act upon any bill (other than an

appropriations bill) before the Committee on Legislative Research, through its staff, has prepared

a Fiscal Note in connection with that bill. The statute provides, in part:

1. Legislation, with the exception of appropriation bills, introduced into

either house of the general assembly shall, before being acted upon,
be submitted to the oversight division of the committee on legislative
research for the preparation of a fiscal note. The staff of the oversight
division shall prepare a fiscal note, examining the items contained in
subsection 2 and such additional items as may be provided either by
joint rule of the house and senate or by resolution adopted by the
committee or the oversight subcommittee.

2. The fiscal note shall state:

(1) The cost of the proposed legislation to the state for the next
two fiscal years;

(2) Whether or not the proposed legislation will establish a

program or agency that will duplicate an existing program or
agency;

(3) Whether or not there is a federal mandate for the program or

agency;

(4) Whether or not the proposed program or agency will have

significant direct fiscal impact upon any political subdivision
of the state;

(5) Whether or not any new physical facilities will be required;

and

(6) Whether or not the proposed legislation will have an

economic impact on small businesses. For the purpose of this
subdivision “small business” means a corporation,
partnership, sole proprietorship or other business entity,
including its affiliates, that:

(a) Is independently owned and operated; and

(b) Employs fifty or fewer full-time employees.

R.S. MO . § 23-140 (1)-(2)(WEST 2010).

-12-
 36. The fiscal note is designed to help legislators assess the impact on the public fisc of

bills which are not directly concerned with appropriations, but which will, through their

implementation of necessity have an impact on the treasury, either by increasing expenditures or by

diminishing revenues. Once drafted, the note travels with a bill through the legislative process, and

becomes a sort of fiscal adjunct to the bill itself.

37. In this regard, the statute provides, in part:

The fiscal note for a bill shall accompany the bill throughout its
course of passage. No member of the general assembly, lobbyist or
persons other than oversight division staff members shall participate
in the preparation of any fiscal note unless the communication is in
writing, with a duplicate to be filed with the fiscal note or unless
requested for information by the fiscal analyst preparing the note.
Violations of this provision shall be reported to the chairman of the
legislative research committee and subject the fiscal note and
proposed bill to subcommittee review. Once a fiscal note has been
signed and approved by the director of the oversight division, the note
shall not be changed or revised without prior approval of the
chairman of the legislative research committee, except to reflect
changes made in the bill it accompanies, or to correct patent
typographical, clerical or drafting errors that do not involve changes
of substance, nor shall substitution be made therefor.

R.S. MO . § 23-140 (3)(WEST 2010).

38. Notwithstanding the provisions just quoted, the fiscal note prepared for a bill is not

static. In fact, given the vast number of bills which are introduced by the General Assembly each

year, and the substantial portion of those that are referred to committee for action, the fiscal notes

drafted in the first instance are often, as a practical matter, cursory at best.

39. It is perhaps in this light that the law allows a Member of the General Assembly to

request an inquiry into the assumptions behind and the conclusions of a fiscal note. Section 23-

140(3) thus also provides:

-13-
 Appeals to revise, change or to substitute a fiscal note shall be made
in writing by a member of the general assembly to the chairman of the
legislative research committee and a hearing before the committee or
subcommittee shall be granted as soon as possible. Any member of
the general assembly, upon presentation of new or additional material,
may, within three legislative days after the hearing on the request to
revise, change or substitute a fiscal note, request one rehearing before
the full committee to further consider the requested change. The
subcommittee, if satisfied that new or additional material has been
presented, may recommend such rehearing to the full committee, and
the rehearing shall be held as soon as possible thereafter.

R.S. MO . § 23-143(3)(WEST 2010).

40. On their face, the provisions of Section 23.140(3) are mandatory: once a member

submits a written request to the Chairman of the Legislative Research Committee, a hearing before

the “committee or subcommittee shall be granted as soon as possible.” (emphases added). As

detailed below, however, those requirements were not met in this case.

– The Fiscal Notes for SBs 586 & 617 –

41. An initial fiscal note for SB 586 was prepared shortly after the bill was introduced

in the Senate. A copy of that preliminary Fiscal Note is attached hereto as Exhibit 2. Various state

and local agencies were polled, with some reporting no anticipated fiscal impact if the bill were

passed, and others predicting a limited or uncertain impact.

42. The staff of the committee based its conclusions on information gathered from a

variety of agencies, but its conclusions are either unsupported by, or contradicted by the information

and the assumptions furnished by those agencies.

43. Many agencies, for example, assumed that the bill would have no fiscal impact on

them whatever, including: the Department of Public Safety, the Director’s Office of the Missouri

House of Representatives, the Missouri Senate, the Boone County Sheriff’s Department, the

Jefferson City Police Department, the City of Centralia and several state agencies.

-14-
 44. Other agencies did anticipate a fiscal impact. The Office of the Attorney General, for

example, anticipated that the bill would result in constitutional litigation, but estimated that the costs

of that litigation, while unknown, would not exceed $100,000.00. The City of Kansas City allowed

that the bill, if enacted, would result in the closure of six businesses, but estimated the total cost

of that eventuality to be $3,000.00 (!) per, in addition to an (inexplicably) indeterminate loss in

permitting fees based on the same assumption.

45. Based on the data it gathered (with large numbers of entities not responding to its

request for information) the Committee staff estimated a total fiscal impact of under $100,000.00

on local governments, and no net impact on the state treasury if the bill was passed.

46. A second fiscal note was prepared and issued on February 1, 2010, in response to the

adoption of SCS SBs 586 & 617. Based on the same assumptions, it came to the same conclusions.

A copy of that Fiscal Note is attached hereto as Exhibit 3.

47. A third fiscal note, prepared on February 5, 2010 in connection with SS SCS SBs 564

& 617 came to the same bottom line conclusion, but amended the assumptions regarding losses to

the City of Kansas City to reflect a starker reality.

48. The City now reported anticipating a loss in licensing revenues of $6,500.00 annually;

it also anticipated that the hours of operation requirements of the new law (discussed later in this

petition) would affect all thirteen adult businesses in the City, and that the prohibition on nude

dancing (of which, more below) would affect three.

49. Kansas City also indicated that there would be an indeterminate fiscal impact from

changes to (and presumably diminutions in) the 852 adult entertainer and 47 adult establishment

manager permits issued annually. A copy of that Fiscal Note is attached hereto as Exhibit 4.

-15-
 50. The February 5, 2010 fiscal note also noted the assumption that cities and towns

across Missouri “could incur a loss of licensing and permitting fee revenue . . . [but] [o]versight

assumes the statewide impact on cities and counties to be less than $100,000.00 per year.” No

justification or explanation was given for this figure.

51. As will be demonstrated later in this Petition, the conclusion that the bills at issue

would have a net fiscal impact of less than $100,000.00 annually was a gross underestimate of their

overall effect, even given the limited assumptions under which the Committee staff proceeded. But

the figure chosen is significant for other reasons.

52. Under House Rule 25(15), any bill which is expected to cost more than $100,000.00

to implement, or which is expected to reduce revenues for the state by $100,000.00 or more, is

automatically subject to review by the House Standing Committee on Fiscal Review.

53. Such a bill is thus also subject to a hearing, conducted by and before the members of

that committee, regarding its anticipated fiscal impact, and not merely the pro forma review by the

staff of the Committee on Legislative Research received by every bill subject to committee action.

– The Requested Fiscal Note Hearing –

54. On April 15, 2010, State Representative Curt Daugherty, of the 53rd House District,

sent a formal, written request to State Senator Tom Dempsey, the Chair of the Joint Committee on

Legislative Research of the Missouri General Assembly, and to Representative Brian Pratt, the Vice-

Chairman of that Committee, pursuant to R.S. Mo. 23.140, requesting that the Committee hold a

hearing regarding the anticipated fiscal impact of SBs 586 and 617. Copies of those letters are

attached hereto as Exhibit 5 and 6, respectively. That hearing was never held.

-16-
 – The Substantive Impact of the Legislation –

55. The legislation at issue here will have a far reaching and dramatic effect on adult

businesses across Missouri. The substantive requirements and restrictions added to Chapter 573 will

directly effect the operation of numerous businesses across the state, including both adult cabarets

and adult bookstores, that between them employ a large number of Missourians and pay substantial

sums in income, sales, use and local taxes, as well as licensing and other fees.

56. The contested legislation adopts R.S. Mo. § 573.528, which defines the terms used

in the remaining sections added to the Revised Statutes, as follows.

573.528. For purposes of sections 573.525 to 573.537, the following terms

shall mean:

(1) “Adult bookstore” or “adult video store”, a commercial establishment

which, as one of its principal business activities, offers for sale or
rental for any form of consideration 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 display of specified sexual
activities or specified anatomical areas. A “principal business
activity” exists where the commercial establishment:

(a) Has a substantial portion of its displayed merchandise which

consists of such items; or

(b) Has a substantial portion of the wholesale value of its

displayed merchandise which consists of such items; or

(c) Has a substantial portion of the retail value of its displayed

merchandise which consists of such items; or

(d) Derives a substantial portion of its revenues from the sale or

rental, for any form of consideration, of such items; or

(e) Maintains a substantial section of its interior business space

for the sale or rental of such items; or

-17-
 (f) Maintains an adult arcade. “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 are regularly
maintained to show images to five or fewer persons per
machine at any one time, and where the images so displayed
are characterized by their emphasis upon matter exhibiting
specified sexual activities or specified anatomical areas;

(2) “Adult cabaret”, a nightclub, bar, juice bar, restaurant, bottle club, or
other commercial establishment, regardless of whether alcoholic
beverages are served, which regularly features persons who appear
semi-nude;

(3) “Adult motion picture theater”, a commercial establishment where

films, motion pictures, video cassettes, slides, or similar photographic
reproductions, which are characterized by their emphasis upon the
display of specified sexual activities or specified anatomical areas are
regularly shown to more than five persons for any form of
consideration;

(4) “Characterized by”, describing the essential character or dominant

theme of an item;

(5) “Employ”, “employee”, or “employment”, describe and pertain to any

person who performs any service on the premises of a sexually
oriented business, on a full-time, part-time, or contract basis, whether
or not the person is denominated an employee, independent
contractor, agent, or otherwise. Employee does not include a person
exclusively on the premises for repair or maintenance of the premises
or for the delivery of goods to the premises;
(6) “Establish” or “establishment”, any of the following:

(a) The opening or commencement of any sexually oriented

business as a new business;

(b) The conversion of an existing business, whether or not a

sexually oriented business, to any sexually oriented business;
or

(c) The addition of any sexually oriented business to any other

existing sexually oriented business;

(7) “Influential interest”, any of the following:

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 (a) The actual power to operate the sexually oriented business or
control the operation, management, or policies of the sexually
oriented business or legal entity which operates the sexually
oriented business;

(b) Ownership of a financial interest of thirty percent or more of

a business or of any class of voting securities of a business; or

(c) Holding an office, such as president, vice president, secretary,

treasurer, managing member, or managing director, in a legal
entity which operates the sexually oriented business;

(8) “Nudity” or “state of nudity”, the showing of the human male or

female genitals, pubic area, vulva, anus, anal cleft, or cleavage with
less than a fully opaque covering, or the showing of the female breast
with less than a fully opaque covering of any part of the nipple or
areola;

(9) “Operator”, any person on the premises of a sexually oriented

business who causes the business to function or who puts or keeps in
operation the business or who is authorized to manage the business
or exercise overall operational control of the business premises. A
person may be found to be operating or causing to be operated a
sexually oriented business whether or not such person is an owner,
part owner, or licensee of the business;

(10) “Premises”, the real property upon which the sexually oriented
business is located, and all appurtenances thereto and buildings
thereon, including but not limited to the sexually oriented business,
the grounds, private walkways, and parking lots or parking garages or
both;

(11) “Regularly”, the consistent and repeated doing of the act so described;

(12) “Semi-nude” or “state of semi-nudity”, the showing of the female

breast below a horizontal line across the top of the areola and
extending across the width of the breast at such point, or the showing
of the male or female buttocks. Such definition includes the lower
portion of the human female breast, but shall not include any portion
of the cleavage of the female breasts exhibited by a bikini, dress,
blouse, shirt, leotard, or similar wearing apparel provided the areola
is not exposed in whole or in part;

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(13) “Semi-nude model studio”, a place where persons regularly appear in
a state of semi-nudity for money or any form of consideration in order
to be observed, sketched, drawn, painted, sculptured, photographed,
or similarly depicted by other persons. Such definition shall not apply
to any place where persons appearing in a state of semi-nudity do so
in a modeling class operated:

(a) By a college, junior college, or university supported entirely

or partly by taxation;

(b) By a private college or university which maintains and

operates educational programs in which credits are
transferable to a college, junior college, or university
supported entirely or partly by taxation; or

(c) In a structure:

a. Which has no sign visible from the exterior of the

structure and no other advertising that indicates a
semi-nude person is available for viewing; and

b. Where, in order to participate in a class, a student

must enroll at least three days in advance of the class;

(14) “Sexual encounter center”, a business or commercial enterprise that,

as one of its principal purposes, purports to offer for any form of
consideration, physical contact in the form of wrestling or tumbling
between two or more persons when one or more of the persons is
semi-nude;

(15) “Sexually oriented business”, an adult bookstore or adult video store,

an adult cabaret, an adult motion picture theater, a semi-nude model
studio, or a sexual encounter center;

(16) “Specified anatomical areas”:

(a) Less than completely and opaquely covered: human genitals,

pubic region, buttock, and female breast below a point
immediately above the top of the areola; and

(b) Human male genitals in a discernibly turgid state, even if

completely and opaquely covered;

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 (17) “Specified criminal act”, any of the following specified offenses for
which less than eight years has elapsed since the date of conviction
or the date of release from confinement for the conviction, whichever
is later:

(a) Rape and sexual assault offenses;

(b) Sexual offenses involving minors;

(c) Offenses involving prostitution;

(d) Obscenity offenses;

(e) Offenses involving money laundering;

(f) Offenses involving tax evasion;

(g) Any attempt, solicitation, or conspiracy to commit one of the

offenses listed in paragraphs (a) to (f) of this subdivision; or

(h) Any offense committed in another jurisdiction which if

committed in this state would have constituted an offense
listed in paragraphs (a) to (g) of this subdivision;

(18) “Specified sexual activity”, any of the following:

(a) Intercourse, oral copulation, masturbation, or sodomy; or

(b) Excretory functions as a part of or in connection with any of

the activities described in paragraph (a) of this subdivision;

(19) “Substantial”, at least thirty percent of the item or items so

modified;

(20) “Viewing room”, the room, booth, or area where a patron of a

sexually oriented business would ordinarily be positioned while
watching a film, video cassette, digital video disc, or other video
reproduction.

57. With these definitions in place, the contested bill enacted Section 573.531, which

prohibits adult businesses from locating in a variety of places, presenting nudity, or operating in a

variety of ways, including between midnight and 6:00 a.m.:

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573.531

1. No person shall establish a sexually oriented business within one

thousand feet of any preexisting primary or secondary school, house
of worship, state licensed day care facility, public library, public park,
residence, or other sexually oriented business. This subsection shall
not apply to any sexually oriented business lawfully established prior
to the effective date of sections 573.525 to 573.537. For purposes of
this subsection, measurements shall be made in a straight line,
without regard to intervening structures or objects, from the closest
portion of the parcel containing the sexually oriented business to the
closest portion of the parcel containing the preexisting primary or
secondary school, house of worship, state-licensed day care facility,
public library, public park, residence, or other sexually oriented
business.

2. No person shall establish a sexually oriented business if a person with

an influential interest in the sexually oriented business has been
convicted of or pled guilty or nolo contendere to a specified criminal
act.

3. No person shall knowingly or intentionally, in a sexually oriented

business, appear in a state of nudity.

4. No employee shall knowingly or intentionally, in a sexually oriented

business, appear in a semi-nude condition unless the employee, while
semi-nude, shall be and remain on a fixed stage at least six feet from
all patrons and at least eighteen inches from the floor in a room of at
least six hundred square feet.

5. No employee, who appears in a semi-nude condition in a sexually

oriented business, shall knowingly or intentionally touch a patron or
the clothing of a patron in a sexually oriented business.

6. A sexually oriented business, which exhibits on the premises, through

any mechanical or electronic image-producing device, a film, video
cassette, digital video disc, or other video reproduction, characterized
by an emphasis on the display of specified sexual activities or
specified anatomical areas shall comply with the following
requirements:

(1) The interior of the premises shall be configured in such a

manner that there is an unobstructed view from an operator's
station of every area of the premises, including the interior of
each viewing room but excluding restrooms, to which any
patron is permitted access for any purpose;

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 (2) An operator’s station shall not exceed thirty-two square feet
of floor area;

(3) If the premises has two or more operator’s stations

designated, the interior of the premises shall be configured in
such a manner that there is an unobstructed view of each area
of the premises to which any patron is permitted access for
any purpose from at least one of the operator’s stations;

(4) The view required under this subsection shall be by direct line
of sight from the operator's station;

(5) It is the duty of the operator to ensure that at least one

employee is on duty and situated in an operator’s station at all
times that any patron is on the portion of the premises
monitored by such operator station; and

(6) It shall be the duty of the operator and of any employees

present on the premises to ensure that the view area specified
in this subsection remains unobstructed by any doors,
curtains, walls, merchandise, display racks, or other materials
or enclosures at all times that any patron is present on the
premises.

7. Sexually oriented businesses that do not have stages or interior

configurations which meet at least the minimum requirements of
sections 573.525 to 573.537 shall be given one hundred eighty days
after the effective date of sections 573.525 to 573.537 to comply with
the stage and building requirements of sections 573.525 to 573.537.
During such one hundred-eighty-day period, any employee who
appears within view of any patron in a semi-nude condition shall
remain, while semi-nude, at least six feet from all patrons.

8. No operator shall allow or permit a sexually oriented business to be

or remain open between the hours of 12:00 midnight and 6:00 a.m. on
any day.

9. No person shall knowingly or intentionally sell, use, or consume

alcoholic beverages on the premises of a sexually oriented business.

10. No person shall knowingly allow a person under the age of eighteen
years on the premises of a sexually oriented business.

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 58. The contested legislation does not impose strict liability on the operators, owners and

employees of adult business who violate the proscriptions it enacts, but does criminalize violations

none-the-less. Section 573.534 provides:

573.534

Sections 573.525 to 573.537 do not impose strict liability. Unless a culpable mental
state is otherwise specified herein, a showing of a knowing or reckless mental state
is necessary to establish a violation of sections 573.525 to 573.537. Notwithstanding
any other provision of law to the contrary, for purposes of sections 573.525 to
573.537, an act by an employee shall be imputed to the sexually oriented business for
purposes of finding a violation of sections 573.525 to 573.537 only if an officer,
director, or general partner, or a person who managed, supervised, or controlled the
operation of the business premises knowingly or recklessly allowed such act to occur
on the premises. It shall be a defense to liability that the person to whom liability is
imputed was powerless to prevent the act.

59. Violations of the legislation are criminal offenses under the legislation, which enacts

a new Section 573.537 making them so, and also exposes the real property upon which violations

occur to civil abatement proceeding:

573.537

1. Any person, business, or entity violating or refusing to comply with

any provision of sections 573.525 to 573.537 shall, upon conviction,
be deemed guilty of a misdemeanor and shall be punished by
imposition of a fine not to exceed five hundred dollars or by
imprisonment for a period not to exceed ninety days, or both. Each
day that a violation is permitted to exist or occur, and each separate
occurrence shall constitute a separate offense.

2. Any premises, building, dwelling, or other structure in which a

sexually oriented business is repeatedly operated or maintained in
violation of sections 573.525 to 573.537 shall constitute a public
nuisance and shall be subject to civil abatement proceedings initiated
by the state in a court of competent jurisdiction. Each day that a
violation is permitted to exist or occur shall constitute a separate
operation or maintenance of the violation.

3. Notwithstanding the provisions of this section, the state may employ

any remedy available at law or in equity to prevent or remedy a
violation of any provision of sections 573.525 to 573.537.

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 60. Significantly, Section 573.537(3), quoted above, permits the state, and thus the

Defendant Attorney General, to employ any other legal or equitable means at its disposal to ensure

compliance with the contested legislation, which, together with R.S. Mo. 27.060 makes the Attorney

General a proper party to this action.

61. The provisions and restrictions listed above do not preempt local authorities from

enacting their own restrictions on adult businesses. Thus, while usurping local control from

jurisdictions that would impose lesser restrictions on adult uses, the General Assembly has

preserved, for those jurisdictions so inclined, the power to impose even more serious restrictions

upon them:

573.540.

1. Nothing in sections 573.525 to 573.537 shall be construed as

preempting or preventing any political subdivision of this state from
maintaining, enacting, or enforcing any local ordinance, rule,
regulation, resolution, or similar law concerning the regulation of
sexually oriented businesses or similar adult oriented businesses
which is stricter than but not inconsistent with the provisions of
sections 573.525 to 573.537.

2. Political subdivisions of this state are specifically authorized to

maintain, enact, and enforce local ordinances, rules, regulations,
resolutions, or other similar laws concerning the regulation of
sexually oriented businesses or similar adult oriented businesses
which are the same as or stricter than but not inconsistent with the
provisions of sections 573.525 to 573.537.
62. Combined, these restrictions will have a significant and unquestionably negative

impact on adult business statewide – something suggested by the report submitted by the City of

Kansas City – that will result in business closures, job losses and lost revenues exceeding the

baseless figures contained in the fiscal notes which Representative Dougherty unsuccessfully sought

to subject to committee review.

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 63. Those figures were relied upon until the Act was passed, and were contained in the

May 26, 2010 fiscal note (Exhibit 5 hereto) which was attached to the bill in its final form, which

embraced the same conclusions as the fiscal note prepared on February 5, 2010.

– The Real Fiscal Impact of the Contested Legislation –

64. Adult nightclubs, bookstores and other adult establishments are located in cities,

towns, villages and rural areas across Missouri. Together, they provide a substantial number of jobs

for taxpaying citizens and generate millions of dollars in revenue directly for the state and its

political subdivisions, in the form of sales and use taxes, employee income tax withholdings, license

and permit fees, and other payments.

65. Adult businesses in Missouri presently generate millions of dollars in revenue each

year, and pay millions of dollars annually in wages, to numerous employees and independent

contractors directly associated with the businesses themselves.

66. These figures do not include the myriad vendors, suppliers and tradesmen who

support adult businesses but are not employed by them directly, who between them receive millions

of dollars a year in exchanges for the goods and services they provide to adult establishments.

67. The restrictions and prohibitions imposed by the contested legislation will have a

significant and negative impact upon adult businesses across Missouri.

68. All the business which presently operate between midnight and 6:00 a.m. will be

forced to discontinue operations during that period, pursuant to R.S. Mo. § 573.531.8.

69. For many adult nightclubs as well as many adult bookstores, these hour constitute a

period of significant patronage. For every adult establishment in the state, the business presently

done during these hours will be lost outright.

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 70. All of the Plaintiff establishments presently operate for some period of hours after

midnight.

71. Adult cabarets will suffer an additional loss of patrons beyond those who visit the

clubs only after midnight, because the reduction in hours will place them at a severe competitive

disadvantage compared to bars, restaurants and other nightclubs, which are not required to close at

midnight, and thus will present a more attractive option to patrons who desire a long evening out,

but do not want the bother of having to relocate during the course of that evening.

72. Under the newly adopted R.S. Mo. § 573.381.9, the sale, service and consumption

of alcoholic beverages in adult cabarets will be unlawful.

73. This will seriously diminish the revenues of the adult cabarets that provide beer,

liquor and wine service to their customers in two ways: by depriving them of a reliable and profitable

source of revenue, and by placing them at a substantial competitive disadvantage compared to bars,

nightclubs and restaurants that also cater to adult patrons but are not so limited.

74. The prohibition on the sale and service of alcohol will seriously reduce the revenues

of adult cabarets at which alcohol is now available, and will necessarily result in many of those

establishments being forced to cease presenting adult entertainment – within the meaning of the

contested legislation – altogether, in order to remain viable. This will immediately and severely

reduce the quantity and availability of adult expression in Missouri.

75. A number of adult cabarets in Missouri choose to forego alcohol sales and services,

a choice which, under liquor laws and regulations not at issue in this case, permits them to present

all nude entertainers as opposed to dancers who perform semi-nude. The cabarets which do so adhere

to a business model in which they serve a niche market which desires to attend all nude

performances, and thus enjoy a competitive advantage over both other entertainment venues and

other adult cabarets.

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 76. The prohibitions against nude dancing imposed under R.S. Mo. § 573.531.3, and the

restrictions on hours of operation imposed under R.S. Mo. § 573.531.8, will together deprive these

businesses of their market niche, while the prohibitions on alcohol sales, service and consumption

will prohibit them from becoming semi-nude cabarets in which alcohol is served, and force them to

cease presenting adult entertainment in any way. This too will immediately and severely reduce the

quantity and availability of adult expression in Missouri.

77. These reductions in patronage, revenues, and the number of sustainable adult cabarets

will be exacerbated by the distance and separation requirements imposed upon dancers under R.S.

Mo. § 573.531.4, which will further diminish the ability of adult cabarets in the state to operate under

present and well tested business models at a profit.

78. These restrictions, in combination, will result, through the outright closure of some

businesses and through the dramatically reduced revenues of others, in a significant overall

contraction of the adult entertainment industry in Missouri.

79. Because these are taxpaying small businesses with many employees between them,

this will translate into a substantial loss of activity for the state economy, and a concomitant loss of

revenue for the state and local treasuries. Because these sums cannot be recovered through legal

action, their loss, and the loss of accumulated business good will, constitute irreparable harm.

80. The Plaintiffs, as taxpayers, will also suffer irreparable harm, for which no remedy

at law can or would be adequate, in that state and local tax revenues will be diminished by the

contested legislation, and state and local taxes will be improperly, unlawfully and unconstitutionally

expended in its implementation and enforcement.

81. This significant reduction in revenues, small business activity will, of course, have

a ripple effect throughout the state and local economy, resulting in a further loss of jobs, sales and

tax revenues to the state.

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 82. Local communities will suffer from lost revenues as well. Adult businesses pay

significant sums each year in license and permit fees to political subdivisions across the state. This

local impact will be in addition to the loss of funds suffered by the state treasury.

83. Kansas City – which itself recognized that it stood to lose jobs and revenues if the

contested legislation became law, in response to the request for informations submitted to it by the

Legislative Research Committee – serves as an example in this regard.

84. In sum, should the contested legislation take effect, many productive businesses will

be undermined, and some shuttered, revenues for the state, and for municipal treasuries across

Missouri will diminish, and persons who are now gainfully employed will be thrown out of work,

in the midst of the greatest economic downturn since the Great Depression.

85. In addition, because the contested legislation is unlawful and unconstitutional, the

expenditure of state and local tax revenues to implement and enforce it is also improper, unlawful

and unconstitutional. The implementation and enforcement of the contested legislation will thus

cause the illegal, unlawful, and unconstitutional expenditure of tax revenues.

COUNT I
(Declaratory and Injunctive Relief)

For their first cause of action against the Defendant, for declaratory and injunctive relief for

violation of Article III, Section 35 of the Missouri Constitution, and for violation of R.S. Mo. §

23.140 et seq., the Plaintiffs, and each of them, state and aver as follows:

86. These Plaintiffs reincorporate all the averments and allegations contained in

Paragraphs 1 through 85 of this Petition, above, as if fully rewritten here.

87. The Committee on Legislative Research is a creature of Article III, Section 35 of the

Missouri Constitution and thus – while it is necessarily of service and subordinate to the General

Assembly – is a permanent adjunct to the General Assembly.

-29-
 88. The Committee is bound by the Missouri Constitution to discharge the duties assigned

to it by law. Article III, Section 35 provides, in relevant part “[t]he committee shall meet when

necessary to perform the duties, advisory to the general assembly, assigned to it by law,” and thus

the mandate of the Committee, and its responsibilities, while defined by statute, are of constitutional

moment.

89. Those duties include the responsibilities independent set forth in R.S. Mo. 23-140(3),

a statute which – in its own right and of its own force – imposes responsibilities on the legislature.

The language of that section is unambiguous, and is mandatory, not directory. The relevant text

provides:

Appeals to revise, change or to substitute a fiscal note shall be made

in writing by a member of the general assembly to the chairman of the
legislative research committee and a hearing before the committee or
subcommittee shall be granted as soon as possible.

R.S. MO . § 23-143(3)(WEST 2010).

90. As detailed in this petition, and in accordance with the language just quoted,

Representative Dougherty did request, in writing and in compliance with the requirements of that

statute, that a hearing be held regarding the fiscal note to SCS SBs 586 & 617. In plain derogation

of the statute, the hearing was never held.

91. By failing to convene the hearing that was requested by Representative Dougherty,

the General Assembly violated its duty under both R.S. Mo. § 23.143(3) and under Article III,

Section 35, which requires it to meet in furtherance of its statutory duties.

92. The public interest will be served by enjoining a law adopted in derogation of the

Constitution and laws of the State of Missouri, and there is no countervailing public interest in the

enforcement of a law which, by dint of these flaws, is a nullity and void ad initio.

-30-
 93. These Plaintiffs are entitled to (i) a declaration that R.S. Mo. Sections 573.525,

573.528, 573.531, 573.534. 573.537 and 573.540 are unconstitutional under Article III, Section 35

of the Missouri Constitution, and further that those provisions were adopted in derogation of R.S.

Mo. § 23.140, and for both reasons, those provisions are void and cannot be enforced against the

Plaintiffs, and (ii) the Court’s order enjoining the Defendant from enforcing those provisions.

WHEREFORE, the Plaintiffs, and each of them, pray that this Court enter its judgment

declaring that Sections 573.525, 573.528, 573.531, 573.534. 573.537 are invalid and cannot be

enforced against the Plaintiffs for the reasons stated herein, and enjoining the Defendant from

enforcing said provisions; assessing the costs of this action against the Defendant, and; for such other

relief as this Court deems appropriate.

COUNT II
(Declaratory & Injunctive Relief)

For their second cause of action against the Defendant for declaratory and injunctive relief

for violations of the First and Fourteenth Amendments to the United States Constitution, the

Bookstore Plaintiffs, the Cabaret Plaintiffs, the Doe Plaintiffs, and each of them, state and aver as

follows:

94. These Plaintiffs reincorporate all the averments and allegations contained in

Paragraphs 1 through 93 of this Petition, above, as if fully rewritten here.

95. The provisions and restrictions of R.S. Mo. § 573.531, and its various subparts,

impermissibly restrict the Bookstore Plaintiffs in their right to disseminate constitutionally protected,

non-obscene, sexually candid and erotic literature, books, videos, digital video discs, magazines, and

other materials the publication, sale and dissemination of which is protected by the First and

Fourteenth Amendments.

-31-
 96. The provisions and restrictions of R.S. Mo. § 573.531, and its various subparts,

impermissibly restrict the Cabaret Plaintiffs in their right to present constitutionally protected, non-

obscene erotic dance performances, the presentation of which is protected by the First and Fourteenth

Amendments.

97. Plaintiffs, including Members of MoACE, are now compelled to choose between

criminal prosecution, and discontinuing the lawful sale, distribution and/or presentation of

constitutionally protected, non-obscene sexually candid books, videos, magazines, literature and/or

dance performances on and after August 28, 2010, the date on which the statutes adopted by the

contested Act take effect.

98. The Doe Plaintiffs, and each of them, engage in either fully nude or semi nude artistic

dancer performances at one or more of the Plaintiff cabarets, and from time to time at other adult

cabarets in Missouri.

99. Each of the Doe Plaintiffs believes in the beauty and the artistic merit of the human

body and its display, and each believes that nude and semi-nude dance performed by and before

consenting adults communicates a message or eroticism and sensuality on the part of the performer

for the benefit of his or her audience.

100. An essential part of the message of eroticism they seek to convey lies in their ability

to dance in either a nude state, or in semi-nude state in close proximity to the patrons and viewers

who attend their performances.

101. The Doe Plaintiffs have performed in this fashion in the past, and wish to continue

to dance and to express themselves in this manner in the future, but cannot lawfully continue to do

so consistent with the provisions of R.S. Mo. § 573.531 et seq.

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 102. The Doe Plaintiffs believe that the communicative message, artistic experience and

essential nature of their dance performances will be lost unless they remain free to do so.

103. The Doe Plaintiffs also receive compensation for their performances in the form of

substantial tips from patrons, for performing private dances beside the tables of, or otherwise in close

proximity those patrons, and their ability to do so will be materially eliminated by the restrictions

of R.S. Mo. § 573.531 et seq.

104. The non-obscene erotic dance performances presented by the Dancer Plaintiffs and

others at the Cabaret Plaintiffs, and similarly situated adult businesses around Missouri, is a form

of expression protected by the First and Fourteenth Amendments to the United States Constitution.

105. The provisions adopted in the contested legislation, R.S. Mo. §§ 573.525, 573.528,

573.531, 573.534, 573.537 and 573.540 were designed to have, and do have a direct and negative

effect on the presentation and dissemination constitutionally protected, non-obscene erotic

expression based upon the content of that expression, and as such are properly subject to strict

constitutional scrutiny.

106. Because the restrictions enacted by the contested legislation are neither necessary to

achieve, nor the least restrictive means of achieving any compelling governmental purpose, they

cannot survive strict scrutiny and are thus invalid under both the First and Fourteenth Amendments

to the United States Constitution.

107. Adult entertainment establishments such as those operated by the Bookstore Plaintiffs

the Cabaret Plaintiffs (collectively hereinafter “the Business Plaintiffs”) do not produce adverse

secondary effects of the sort identified by the General Assembly in R.S. Mo. 573.525 (2), and the

General Assembly failed to reasonably rely upon constitutionally adequate predicate evidence in

finding otherwise.

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 108. Adult entertainment establishments such as those operated by the business Plaintiffs,

and other members of MoACE, do not allow minors on their premises, do not make sales to minors,

do not allow prostitution or other crimes, including the illegal sale or use of drugs, upon their

premises, nor do they permit, encourage or promote obscenity, lewdness, the spread of disease, or

public indecency upon their premises.

109. Adult entertainment establishments such as those operated by the business Plaintiffs,

and other members of MoACE are each located in areas that have been properly zoned for adult

entertainment businesses by their respective local communities, are validly licensed to conduct their

businesses and maintain their properties in a safe, proper, hygienic and in a manner conducive to

preserving and promoting the property values of their respective neighborhoods.

110. Their establishments do not have a deleterious effect on local property values, nor do

they contribute to the spread of urban blight. Indeed, as well attended businesses which generate

patronage and foot traffic, they help to resist urban blight and decay.

111. Adult entertainment establishments such as those operated by the business Plaintiffs,

and other members of MoACE are actively involved in their respective communities, and contribute

positively thereto by providing employment, purchasing goods and services from local vendors, and

paying state and local taxes and fees.

112. The provisions adopted in the contested legislation, R.S. Mo. §§ 573.525, 573.528,

573.531, 573.534, 573.537 and 573.540 represent the official policy, custom and usage of the State

of Missouri with respect to the subject matter thereof.

113. The provisions adopted in the contested legislation, R.S. Mo. §§ 573.525, 573.528,

573.531, 573.534, 573.537 and 573.540 were adopted by the General Assembly and – unless their

enforcement is enjoined by this Court, will be enforced by the Defendant and others throughout the

state – under color and authority of state law.

-34-
 114. The enforcement of the provisions adopted in the contested legislation will suppress

the First Amendment rights of the Plaintiffs and materially reduce the quantity and availability of

adult expression in Missouri, which constitute irreparable harms for which no remedy at law would

be adequate.

115. The Civil Rights Act of 1871, 42 U.S.C. § 1983, provides the Plaintiffs with a cause

of action, and vest this court with jurisdiction to declare invalid, and to enjoin the enforcement of

state statutes adopted and enforced under color of state law which violate the rights secured to the

Plaintiffs by the Constitution and laws of the United States.

116. R.S. Mo. § 573.531, and its various subparts, and the other provisions and restrictions

adopted by the contested legislation, are unconstitutional under the First and Fourteenth

Amendments to the United States Constitution for each of the following reasons:

a. The laws are unconstitutional content-based restrictions of protected

expression;

b. The laws are unconstitutionally overbroad;

c. The laws are unconstitutionally vague;

d. The laws do not further any governmental interest, compelling,

substantial or otherwise;

e. The laws are not the least restrictive means, nor are they narrowly
tailored, to further any governmental interest;

f. The laws unconstitutionally abridge freedom of speech and

expression and impose impermissible restraints on constitutionally
protected expression;

g. The laws were adopted without relevant empirical information to

support them;

h. The law were adopted without any valid evidence upon which the
State could rely to show sexually oriented businesses in general and
plaintiffs’ businesses in particular cause adverse secondary effects;

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 i. The laws deprive the Plaintiffs of the equal protection of the law;

j. The laws impermissibly apply to each and every jurisdiction in the

state, be it urban suburban or rural, without valid evidence supporting
the need for and the efficacy of the restrictions it adopts in such
locations;

k. The laws will impermissibly reduce the quantity and accessibly of

adult expression in the State of Missouri with a concomitant
reduction in the adverse secondary effects thereof; and,

l. The laws do not provide reasonable alternative avenues within the

State of Missouri for the protected expression it restricts.

117. The Defendant will suffer no harm from being enjoined in the enforcement of an

unconstitutional set of statutory provisions, and the public interest favors the injunction of the

enforcement of unconstitutional laws. The public interest will further benefit through the

preservation of the First Amendment rights of the Plaintiffs to sell, disseminate and present, and of

the public to receive, constitutionally protected expression that, the availability of which, absent

equitable relief from this Court, might otherwise be extinguished in Missouri.

118. No substantial harm will result from this Court retaining jurisdiction in this case and

granting the temporary and preliminary relief sought by the Plaintiffs, in that by doing so, the Court

will merely preserve the status quo – under which the Plaintiffs are free to engage in constitutionally

protected expression without fear of violating the contested legislation – until a final decision on the

constitutional merits can be reached.

119. Plaintiffs are entitled to (i) a declaration that R.S. Mo. § 573.531, and its various

subparts, are unconstitutional under First and Fourteenth Amendments to the United States

Constitution, for each of the reasons stated above, and that those provisions accordingly cannot be

enforced against the Plaintiffs, and (ii) the Court’s order enjoining the Defendant from enforcing

those provisions.

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 WHEREFORE, Plaintiffs pray that this Court enter its judgment declaring that R.S. Mo. §

573.531 is invalid and cannot be enforced against the Plaintiffs for the reasons stated herein, and

enjoining the Defendant from enforcing said provisions; assessing the costs of this action against the

Defendant, and; for such other relief as this Court deems appropriate.

Respectfully submitted,

RICHARD T. BRYANT & ASSOC., P.C.

______________________________
By: Richard T. Bryant (Mo. 27075)
1102 Grand Avenue Suite 804
Kansas City, Missouri 64106
Telephone: 816-221-9000
Facsimile: 816-221-9019

BERKMAN , GORDON, MURRAY & DEVAN

J. Michael Murray (Ohio 0019626)†
Raymond Vasvari (Ohio 0055538)†
55 Public Square Suite 2200
Cleveland, Ohio 44113-1949
Telephone 216-781-5245
Facsimile 216-781-8207

SIRKIN , KINSLEY & NAZZARINE, CO . LPA

H. Louis Sirkin (Ohio 0024573)†
Jennifer Kinsley (Ohio 0071629)†
810 Sycamore Street, Second Floor
Cincinnati, Ohio 45202
Telephone: 513-721-4876
Telecopier: 513-338-1992

BLITZ, BARDGETT & DEUTSCH, L.C

James B. Deutsch, #27093
Marc H. Ellinger, #40828
Thomas W. Rynard, #34562
308 East High Street, Suite 301
Jefferson City, MO 65101
Telephone No.: (573) 634-2500
Facsimile No.: (573) 634-3358

Counsel for the Plaintiffs

†
Subject to Admission Pro Hac Vice

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