AG intervenes in lawsuit
Attorney General Leslie Rutledge’s office has asked to intervene in a federal lawsuit, filed in February, challenging Jonesboro’s refusal to allow an Adam and Eve adult novelty store to open in the northeast Arkansas city.
Because the lawsuit challenges the constitutionality of a state law the city has cited in saying the store’s location isn’t far enough away from churches, day-cares and residential use areas, U.S. District Judge D. Price Marshall notified Rutledge’s office about the case March 14.
A federal rule of civil procedure requires notification of the attorney general’s office, which is tasked with defending state laws, in “any action, suit or proceeding where the State is not a party but where the constitutionality of any statute of the State affecting the public interest is challenged.”
The motion states, “The State moves to intervene for the sole purpose of defending the constitutionality of Ark. Code Ann. 14-1-302.”
That law defines an “adult bookstore or video store” as “a commercial establishment that offers for sale or rent any of the following as one of its principal purposes: an instrument, a device, or paraphernalia that is designed for use in connection with a specific sexual activity.”
In the lawsuit, filed Feb. 12 in federal court in Jonesboro, attorneys for the business that is waiting to open its doors at 1518 Caraway Road are asking Marshall either to declare the statute unconstitutional for being too vague or to determine that the statute doesn’t apply to the business.
The lawsuit describes the business as one “that currently sells a combination of lingerie, adult apparel, costumes, bachelorette supplies, novelties, games, and massage oils and personal lubricants, and that is intended to sell a combination of adult and nonadult products for off-premises use and consumption.”
The complaint points out that the business “does not operate, and is not intended to operate, booths, stalls, or partitioned portions of a room or individual rooms for the on-premises viewing of movies or other entertainment with adult content.” It also won’t feature live entertainment or dancing, the suit notes.
Although the city issued a privilege license allowing the national chain store to do business in Jonesboro, the city contends the proposed location requires the owners to apply for and receive a conditional use permit as well. It also contends that the location is near a church, putting it in violation of state law, which sets a 1,000-foot restriction from designated places, and a city ordinance that increases the distance to 2,000 feet.
Jonesboro Mayor Harold Perrin is named as the sole defendant.
“The statute is an unconstitutional prior restraint on protected speech, is unconstitutionally vague and overbroad, is not narrowly tailored to serve a substantial government interest, is arbitrarily and capriciously enforced by the defendants, and violate’s plaintiff’s right to equal protection,” says the lawsuit, which was filed on behalf of the business by attorney Lloyd “Tre” Kitchens of the Brad Hendricks Law Firm in Little Rock.
In 2011, Adam and Eve opened a location at 1510 S. University Ave. in Little Rock after a battle with the city, which initially contended it was a “sexually oriented business,” requiring it to remain 750 feet away from day-care centers.
The case resolved itself before it could go to trial. City Attorney Tom Carpenter said at the time that in taking a closer look at the connection
between the national chain and the local franchise, the city agreed that it was the national chain’s advertisements, and not the local store’s, that ran afoul of city code.
The city of Little Rock considered a business “sexually oriented” if “adult” products dominated its inventory, floor space or advertising. Carpenter said online advertising tended to emphasize the sale of sexually oriented or adult products, but the city determined that the online retailer and the individual retail stores operated independently of each other.
Once the store wasn’t deemed a sexually oriented business, the city couldn’t regulate it, Carpenter said at the time.
The North Carolinabased retailer had more than 40 independently owned franchises in 13 states at that time. Its website currently states its goal is to have 400 retail locations by 2025.