A federal judge was right to dismiss a 2018 lawsuit in which an adult novelty store in Jonesboro challenged a state zoning law prohibiting adult-oriented businesses from opening within 1,000 feet of schools and other places frequented by children, an appellate panel said Monday.
The three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis affirmed Chief U.S. District Judge D. Price Marshall's Aug. 6, 2018, order dismissing the First Amendment lawsuit filed by Adam and Eve, which challenged the city's refusal to allow it to open at 1518 Caraway Road.
The city had issued a privilege license allowing the national chain store to do business in Jonesboro, but said the proposed location also required a conditional-use permit, which was refused because the site was near a church. The city said that put it in violation of state law, which sets a 1,000-foot restriction from designated places, as well as a city ordinance that increase the distance to 2,000 feet.
Marshall threw the case out on the first day of a scheduled two-day nonjury trial.
"We hold that Adam and Eve has not engaged in speech and therefore cannot state a claim under the First Amendment," the 8th Circuit panel said Monday. "We also hold that the zoning law is not unconstitutionally vague and does not violate equal protection."
The lawsuit, filed Feb. 12, 2018 in federal court in Jonesboro, wanted Marshall to declare Arkansas Code Annotated 14-1-302 unconstitutional for being too vague or to determine that it didn't apply to the business.
Attorney General Leslie Rutledge's office defended the law, and on Monday, she said, "I applaud the Eighth Circuit's decision upholding the constitutionality of Arkansas's commonsense zoning law preventing adult-oriented businesses from opening near areas such as schools and places of worship."
The law, also known as Act 387 of 2007, was passed to protect the public health, safety and welfare, and to prevent criminal activity, the 8th Circuit panel noted. The panel included U.S. circuit judges Raymond Gruender of St. Louis, David R. Stras of Minneapolis and Jonathan A. Kobes of Sioux Falls, S.D.
Specifically, the law prohibits adult-oriented businesses from sitting within 1,000 feet of a child care facility, park, place of worship, playground, public library, recreational area or facility, residence, school or walking trail.
In an opinion written by Kobes, the panel noted that in passing the law, the Legislature cited evidence of the adverse secondary effects of adult-oriented businesses and findings of previous U.S. Supreme Court cases.
"These harmful secondary effects include property crime, illicit drug use, prostitution, the potential spread of disease, and sexual assault," the opinion said.
The act applies to "an adult bookstore or video store," which is defined as a commercial establishment that "offers for sale or rent," as one of its "principal business purposes," printed or other visual representations of a specific sexual activity, or an instrument, device or paraphernalia designed for use in connection with a specific sexual activity.
It grandfathers in stores that opened before July 31, 2007, and doesn't apply when a protected site, such as a day care or a school, moves into the existing shop's buffer zone.
The national Adam and Eve retailer promotes itself as the "leading sex toy company in the USA" but the Jonesboro franchise had agreed to sell only lingerie, adult toys, costumes, novelties, games, massage oils and personal lubricants. It said it wouldn't sell pornographic books, magazines or DVDs, nor would it host on-site entertainment such as booths, stalls, movie-viewing rooms, live adult entertainment or dancing.
Metro on 08/15/2019