ST. LOUIS (CN) – An attorney for an adult store argued before an Eighth Circuit panel Wednesday that an Arkansas city’s refusal to grant it a business license violates its right to equal protection.
Last year, Adam and Eve Jonesboro LLC sued Harold Perrin in his official capacity as mayor of Jonesboro, claiming the ordinance used to deny its license was unconstitutionally vague.
A federal judge in the Eastern District of Arkansas upheld the ordinance and dismissed the lawsuit at a bench trial, prompting the appeal to the Eighth Circuit.
Jonesboro, 130 miles northeast from Little Rock, has a population of about 75,000 people. The city has grown increasingly conservative over the past 20 years, with 64% voting for Donald Trump in 2016 compared to 54% who backed Bill Clinton in 1996, according to city-data.com.
At issue during Wednesday’s hearing was precedent set in the U.S. Supreme Court cases Renton v. Playtime Theaters and Los Angeles v. Alameda Books, which gave cities the right to limit adult movie theaters and bookstores due to the allegedly adverse effects those types of businesses can have on the community.
Adam and Eve’s lawyer, Lloyd Kitchens of The Brad Hendricks Law Firm, argued that the precedent in those cases does not apply to his client because it is not an adult movie theater or bookstore. Kitchens said no videos or books would be sold and only 30% of the stores sales would be devoted to sexually-themed items.
The products offered for sale would include lingerie, adult apparel, costumes, novelties, games, massage oils and personal lubricants, according to the store’s February 2018 lawsuit.
“There is zero evidence, not a scintilla of evidence, about the secondary effects” that the store would have on Jonesboro, Kitchens told the three-judge panel.
Dylan Jacobs of the Arkansas attorney general’s office argued for the defense that Renton did apply even if Adam and Eve is not an adult theater or bookstore.
“It’s going to be extremely difficult for a city to come up with evidence about sexual devices” and their secondary effects, Jacobs told the judges.
Jacobs said that both the Supreme Court and the Eighth Circuit had previously held that cities do not need direct evidence on adverse effects when imposing restrictions on adult businesses.
The judges asked Jacobs what separates Adam and Eve from stores such as Walmart, Walgreens and CVS Pharmacy that sell the same types of adult products. They also mentioned that because of these stores’ size, they are in a position to sell much more the products compared to Adam and Eve.
“Stores like Adam and Eve are different because people go there looking for those specific products, which leads to the secondary effects such as crime and drug use,” Jacobs argued. “It’s perfectly rational to condition that.”
During rebuttal, the judges brought up Adam and Eve’s website, which states that the company is “America’s #1 trusted source for sex toys.”
Kitchens responded that Adam and Eve Jonesboro is completely different from the national Adam and Eve chain and shouldn’t be held to that standard in this case. He also restated his belief that there is no evidence backing up the defense’s denial of the business license.
“There’s nothing on the record, no studies, no nothing,” Kitchens said. “There’s just the utterance of the magic phrase ‘secondary gain.’”
U.S. Circuit Judges Raymond Gruender, David Stras and Jonathan Kobes presided over the hearing. It is unclear when they will make a decision.