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Adam and Eve Jonesboro, LLC v. Perrin

United States Court of Appeals, Eighth Circuit

August 12, 2019

Adam and Eve Jonesboro, LLC Plaintiff- Appellant
v.
Harold Perrin, In His Official Capacity as Mayor of the City of Jonesboro, Arkansas Defendant-Appellee Leslie Rutledge, Attorney General for the State of Arkansas Intervenor

          Submitted: June 12, 2019

          Appeal from United States District Court for the Eastern District of Arkansas - Jonesboro

          Before GRUENDER, STRAS, and KOBES, Circuit Judges.

          KOBES, Circuit Judge.

         Adam and Eve Jonesboro, LLC (Adam and Eve) appeals from the district court's[1] judgment upholding the constitutionality of an Arkansas zoning law that prevents adult-oriented businesses from opening within 1, 000 feet of schools and other places frequented by children. We hold that Adam and Eve has not engaged in speech and therefore cannot state a claim under the First Amendment. We also hold that the zoning law is not unconstitutionally vague and does not violate equal protection. We affirm.

         I.

         Arkansas passed Act 387 of 2007 "to establish requirements governing the location of adult-oriented businesses in order to protect the public health, safety, and welfare and to prevent criminal activity." Ark. Code Ann. § 14-1-301(a). The Act prohibits those businesses from locating 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." Id. § 303(a). The legislature acted "on evidence of the adverse secondary effects of adult-oriented businesses and on findings discussed in cases, including City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), Erie v. PAP's A.M., 529 U.S. 277 (2000), City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and Young v. American Mini Theatres, 427 U.S. 50 (1976)." Id. § 301(b). These harmful secondary effects include property crime, illicit drug use, prostitution, the potential spread of disease, and sexual assault. Id. The legislature decided that these businesses "should be separated from . . . places frequented by children to minimize the impact of the secondary effects." Id.

         The Act applies to an "adult bookstore or video store," which is defined as a commercial establishment that "offers for sale or rent any of the following as one (1) of its principal business purposes":

(A) A book, magazine, periodical or other printed matter, photograph, film, motion picture, videocassette, reproduction, slide, or other visual representation that depicts or describes a specific sexual activity; or
(B) An instrument, a device, or paraphernalia that is designed for use in connection with a specific sexual activity.

Id. § 302(2). A "specific sexual activity" is a "sex act, actual or simulated," or "[f]ondling or other erotic touching of a human genital, a pubic region, a buttock, an anus, or a female breast." Id. § 302(24).

         The Act grandfathers in stores that opened before July 31, 2007, and does not apply when a protected site, like a school or daycare, subsequently locates within a business's buffer zone. Id. §§ 303(c), 307. Violations of the Act are punished as a Class A misdemeanor. Id. § 306. Localities may also pass ordinances that are "at least as restrictive" as the Act. Id. § 304.

         More than a decade after the Act became law, Appellant wanted to open an Adam and Eve franchise in Jonesboro. According to its website, the national retailer promotes itself as the "#1 Adult Toy Superstore" and the "leading sex toy company in the USA."[2] It advertises a wide variety of bondage gear, lingerie, movies, and personal lubricants. Id. The proposed Jonesboro franchise, however, would sell only lingerie, adult toys, costumes, novelties, games, massage oils, and personal lubricants.

         In December 2017, Adam and Eve received a privilege license to do business in Jonesboro. The privilege license application instructs potential entrepreneurs to coordinate with city planners to ensure that their proposed locations and uses comply with zoning laws. Adam and Eve did not do so, and on January 25, 2018, the building inspector refused to issue a certificate of occupancy that is required to open a business. The City Attorney explained that "the location chosen by the store requires them to apply for and receive a conditional use permit, based upon its zoning." JA ...


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