Case 2:16-cv-00318-DN Document 19 Filed 05/18/16 Page 1 of 8

PARKER DOUGLAS (8924)

Chief Federal Deputy Attorney General
DAVID N. WOLF (6688)
Assistant Utah Attorney General
OFFICE OF THE UTAH ATTORNEY GENERAL
160 East 300 South, Sixth Floor
P.O. Box 140856
Salt Lake City, Utah 84114-0856
Telephone: (801) 366-0100
Facsimile: (801) 366-0101
E-mail: pdouglas@utah.gov
E-mail: dnwolf@utah.gov
Counsel for Defendants

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CINEMA PUB, L.L.C., d/b/a BREWVIES,

DEFENDANTS ANSWER TO
PLAINTIFFS COMPLAINT

Plaintiff,
v.
SALVADOR D. PETILOS, Director; CADE
MEIER, Deputy Director; NINA
MCDERMOTT, Director of Compliance,
Licensing Enforcement, Utah Department of
Alcoholic Beverage Control, in their official
capacities; JOHN T. NIELSEN, Chairman;
JEFFREY WRIGHT; KATHLEEN
MCCONKIE COLLINWOOD; OLIVIA
VELA AGRAZ; STEVEN B. BATEMAN; S.
NEAL BERUBE; AMANDA SMITH,
Members, Utah Alcoholic Beverage Control
Commission, in their official capacities,
Defendants.

Case No. 2:16-cv-00318-DN

Judge David Nuffer

Case 2:16-cv-00318-DN Document 19 Filed 05/18/16 Page 2 of 8

Defendants submit their answer to Plaintiffs Complaint and assert their defenses as
follows.
FIRST DEFENSE
Plaintiffs Complaint fails to state a claim upon which relief may be granted.
SECOND DEFENSE
5. The allegations contained in paragraph 5 of Plaintiffs Complaint1 constitute legal
conclusions to which no response is necessary. To the extent a response is deemed necessary,
Defendants deny the allegations contained in paragraph 5 of Plaintiffs Complaint.
6. The allegations contained in paragraph 6 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary.
7. The allegations contained in paragraph 7 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary. To the extent a response is deemed necessary,
Defendants deny the allegations contained in paragraph 7 of Plaintiffs Complaint.
8. The allegations contained in paragraph 8 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary. To the extent a response is deemed necessary,
Defendants deny the allegations contained in paragraph 8 of Plaintiffs Complaint.
9. Defendants deny the allegations contained in paragraph 9 of Plaintiffs Complaint.
10. In response to paragraph 10 of Plaintiffs Complaint, Defendants lack sufficient
knowledge and information to either admit or deny the allegations of paragraph 10 and,
therefore, deny the same.

Plaintiffs Complaint begins on page 3, paragraph 5. Accordingly, Defendants Answer to Plaintiffs Complaint
will also begin with paragraph 5.

Case 2:16-cv-00318-DN Document 19 Filed 05/18/16 Page 3 of 8

11. In response to paragraph 11 of Plaintiffs Complaint, Defendants lack sufficient

knowledge and information to either admit or deny the allegations of paragraph 11 and,
therefore, deny the same.
12. In response to paragraph 12 of Plaintiffs Complaint, Defendants admit the Utah
Department of Alcohol and Beverage Control (DABC) issued a Notice of Agency Action and
of Informal Adjudication and Notice of Hearing on March 31, 2016, to Cinema Pub, L.L.C., dba
Brewvies, the content of which speaks for itself. Defendants lack sufficient knowledge and
information to either admit or deny the remaining allegations of paragraph 12 and, therefore,
deny the same.
13. In response to paragraph 13 of Plaintiffs Complaint, Defendants admit DABC issued
a Notice of Agency Action and of Informal Adjudication and Notice of Hearing on March 31,
2016, to Cinema Pub, L.L.C., dba Brewvies, the content of which speaks for itself.
14. The allegations contained in paragraph 14 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary.
15. In response to the first sentence of paragraph 15 of Plaintiffs Complaint, Defendants
admit DABC issued a Notice of Agency Action and of Informal Adjudication and Notice of
Hearing on March 31, 2016, to Cinema Pub, L.L.C., dba Brewvies, the content of which speaks
for itself. The allegations contained in the second sentence of paragraph 15 are speculative and,
thus, no response is necessary. To the extent a response is deemed necessary, Defendants lack
sufficient knowledge and information to either admit or deny the allegations contained in the
second sentence of paragraph 15 and further deny DABC Commission violated Brewvies
constitutional rights.
3

Case 2:16-cv-00318-DN Document 19 Filed 05/18/16 Page 4 of 8

16. In response to paragraph 16 of Plaintiffs Complaint, Defendants admit DABC issued

a Notice of Agency Action and of Informal Adjudication and Notice of Hearing on March 31,
2016, to Cinema Pub, L.L.C., dba Brewvies, the content of which speaks for itself.
17. The allegations contained in paragraph 17 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary. To the extent a response is deemed necessary,
Defendants deny the allegations contained in paragraph 17 of Plaintiffs Complaint.
18. In response to the allegations contained in paragraph 18 of Plaintiffs Complaint,
Defendants admit that Brewvies responded to Margaret K. Hardies informal notice in a letter
dated June 23, 2015, the content of which speaks for itself.
19. In response to the allegations contained in paragraph 19 of Plaintiffs Complaint,
Defendants admit that DABC responded in a letter from its legal counsel Sheila Page, dated July
23, 2015, the content of which speaks for itself.
20. In response to paragraph 20, Defendants incorporate their responses to paragraphs 1
through 19 above.
21. The allegations contained in paragraph 21 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary. To the extent a response is deemed necessary,
Defendants deny the allegations contained in paragraph 21 of Plaintiffs Complaint.
22. The allegations contained in paragraph 22 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary. To the extent a response is deemed necessary,
Defendants deny the allegations contained in paragraph 22 of Plaintiffs Complaint.

Case 2:16-cv-00318-DN Document 19 Filed 05/18/16 Page 5 of 8

23. In response to paragraph 23 of Plaintiffs Complaint, Defendants lack sufficient

knowledge as to Brewvies future intended conduct, and deny remaining allegations contained in
paragraph 23 of Plaintiffs Complaint.
24. The allegations contained in paragraph 24 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary. To the extent a response is deemed necessary,
Defendants admit they were acting under the color of state law, and in the course and scope of
their duties as employees or DABC Commission and deny the remaining allegations contained in
paragraph 24 of Plaintiffs Complaint.
25. Defendants deny the allegations contained in paragraph 25 of Plaintiffs Complaint.
26. Defendants deny the allegations contained in paragraph 26 of Plaintiffs Complaint.
27. Defendants deny the allegations contained in paragraph 27 of Plaintiffs Complaint.
28. The allegations contained in paragraph 28 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary. To the extent a response is deemed necessary,
Defendants deny the allegations contained in paragraph 28 of Plaintiffs Complaint.
29. Defendants deny the allegations contained in paragraph 29 of Plaintiffs Complaint.
30. The allegations contained in paragraph 30 of Plaintiffs Complaint constitute legal
conclusions to which no response is necessary.
31. Defendants deny the allegations contained in paragraph 31of Plaintiffs Complaint.
32. Defendants deny each and every allegation of Plaintiffs Complaint, which is not
specifically admitted or otherwise pleaded to herein.

Case 2:16-cv-00318-DN Document 19 Filed 05/18/16 Page 6 of 8

THIRD DEFENSE
The statutory regulation does not violate the First Amendment.
FOURTH DEFENSE
The statute regulates conduct not specifically directed at expression and, thus, is not
subject to First Amendment scrutiny.
FIFTH DEFENSE
The statute regulates conduct, and any incidental impact on the expressive element of
films depicting nudity or other prohibited conduct is de minimis.
SIXTH DEFENSE
The regulation is within the constitutional power of the government.
SEVENTH DEFENSE
The State may lawfully prohibit the sale of alcoholic beverages in inappropriate
locations.
EIGHTH DEFENSE
The State has the authority to protect public health, welfare and morals of the community.
NINTH DEFENSE
The State retains general police power and, thus, requires no specific grant of authority in
the Federal Constitution to legislate with respect to matters traditionally within the scope of its
police power, which includes State authority over public health, welfare, and morals.
TENTH DEFENSE
The regulation is not designed to suppress expression, but rather at combating the
negative secondary effects caused by serving alcohol while viewing adult entertainment.
6

Case 2:16-cv-00318-DN Document 19 Filed 05/18/16 Page 7 of 8

ELEVENTH DEFENSE
Combating the adverse secondary effects of the conduct described in the statute is within
the States constitutional powers and unrelated to the suppression of free expression.
TWELFTH DEFENSE
The regulation is constitutional because the governmental interest is unrelated to the
suppression of free speech.
THIRTEENTH DEFENSE
The regulation is constitutionally justified because it has only an incidental impact on
expressive conduct.
FOURTEENTH DEFENSE
The regulation is designed to serve an important or substantial government interest,
narrowly tailored, and reasonable alternative avenues of communication remain available.
FIFTEENTH DEFENSE
The regulation furthers an important or substantial government interest and any
restriction on expressive conduct is no greater than is essential in furtherance of that interest.
PRAYER FOR RELIEF
WHEREFORE, having answered Plaintiffs Complaint, Defendants pray that the
Complaint be dismissed, with prejudice, that Plaintiff take nothing thereby, and that Defendants
be awarded costs and fees reasonably incurred in defending this action and such other relief as
the Court deems just.

Case 2:16-cv-00318-DN Document 19 Filed 05/18/16 Page 8 of 8

DATED: May 18, 2016.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ David N. Wolf

PARKER DOUGLAS
Chief Federal Deputy Attorney General
TYLER R. GREEN
Utah Solicitor General
DAVID N. WOLF
Assistant Utah Attorney General
Counsel for Defendants