Submitted: June 12, 2019
from United States District Court for the Eastern District of
Arkansas - Jonesboro
GRUENDER, STRAS, and KOBES, Circuit Judges.
and Eve Jonesboro, LLC (Adam and Eve) appeals from the
district court's 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.
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.
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
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).
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.
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." 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.
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 ...