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THE TOOL BOX v. OGDEN CITY CORP.

No. 01-4134.

355 F.3d 1236 (2004)

THE TOOL BOX, a Utah corporation, Plaintiff-Appellant, v. OGDEN CITY CORPORATION, a Utah municipal corporation, Defendant-Appellee.

United States Court of Appeals, Tenth Circuit.

January 21, 2004.

Attorney(s) appearing for the Case

W. Andrew McCullough of McCullough & Associates, LLC, Midvale, UT (Michael W. Gross of Schwartz & Goldberg, PC, Denver, CO, with him on the briefs), for Plaintiff-Appellant.

Donald L. Dalton of Dalton & Kelley, Salt Lake City, UT, for Defendant-Appellee.

Before TACHA, Chief Judge, SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

ON REHEARING EN BANC

HARTZ, Circuit Judge.

The Tool Box, Inc., wishes to open a nude-dancing establishment in Ogden City, Utah, within the boundaries of the Ogden Commercial and Industrial Park (the Industrial Park). Because the Industrial Park is zoned M-2, the location of the establishment would not violate the requirements of the City's ordinance regulating businesses that are sexually oriented (the BSO Ordinance). The Industrial Park is also subject...

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