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Dick and Jane's Super Spot is located at 1141 Deadwood Ave. in Rapid City.

Some of Rapid City’s laws regarding sexually oriented businesses are unconstitutional and cannot be imposed on a store that challenged their legality, a judge has ruled, but a trial may be needed to determine the amount of damages owed by the city to the store.

The court’s 34-page order was filed Monday by Jeffrey Viken, the chief judge of U.S. District Court for the District of South Dakota.

Viken wrote that several portions of the Rapid City Municipal Code are “unconstitutional prior restraints on speech in violation of the First Amendment.”

“The court permanently enjoins the City from enforcing any of these ordinances against plaintiffs,” Viken’s order says.

The order additionally says, “The court’s ruling does not mean the City is unable to regulate sexually oriented businesses,” and “the City is free to enact new ordinances that do not violate the First Amendment.”

Darrell Shoemaker, communications coordinator for the city of Rapid City, provided a statement Monday that said, "We continue to review the decision and will be determining options for the Council to consider, which could include revisions to City ordinance based on the Court's decision or if the Council wishes to appeal the District Court's decision to the Eighth Circuit."

Viken declined to rule on whether the store’s owner is owed $237,888 in damages he is seeking from the city. On that question, Viken ordered both sides to confer regarding a potential trial date to determine damages.

The statement from Shoemaker said the city is "more than willing to settle this case."

David Eliason and his company, 1141 LLC, filed the lawsuit against the city in 2017 after the Rapid City Council denied his application for a conditional use permit to operate a business called Dick & Jane's Super Spot at 1141 Deadwood Ave., Suite 7. Eliason intended to sell products including adult-themed novelties, sex aids, and DVDs and magazines with sexual themes.

In January, Eliason won a temporary injunction overturning the council’s denial of his permit application, and he subsequently opened his store. Monday’s ruling makes the temporary injunction permanent.

Eliason said he is open to settlement talks with the city regarding damages.

"We’re more than happy to visit with the city and see if we can work out an amicable resolution," Eliason said Monday. "We've always wanted to try to do that to save time, money, court costs and the court's time."

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Contact Seth Tupper at seth.tupper@rapidcityjournal.com

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