Court denies adult store’s appeal to open location in Jonesboro

Appeals court dismisses adult store request to overturn

JONESBORO, Ark. (KAIT) - A U.S. appeals court has denied an adult-novelty store's appeal to open in Jonesboro.

Adam and Eve Jonesboro, LLC has been fighting to open a location on South Caraway Road in Jonesboro for nearly two years.

On August 12, 2019, the store lost its battle, again, after the court upheld the Eastern District of Arkansas’s dismissal of the case.

Adam and Eve Jonesboro, LLC (Adam and Eve) appeals from the district court’s judgment upholding the constitutionality of an Arkansas zoning law that 1 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. "
US Court of Appeals for the Eighth Circuit

Backstory

Lawmakers passed Act 387 in 2007. It established “requirements governing the location adult-oriented businesses in order to protect the public health, safety, and welfare and to prevent criminal activity.” The law prevents adult-oriented businesses from opening with 1,000 feet of schools and other places frequented by children.

In December 2017, Adam and Eve received a privilege license to do business in Jonesboro. That license required the business to work with city officials to ensure the proposed location and business plan would be compliant with current zoning laws.

In January 2018, the building inspector refused to issue a certificate of occupancy that’s required to open a business.

The city claimed the store could not receive a permit because it didn't meet zoning laws.

City Attorney Carol Duncan cited both Act 387 along with a Jonesboro city ordinance, which requires at least 2,000 feet of separation from an adult-oriented business and churches, daycares, and residential uses.

Title and subtitle of Act 387 passed in 2007.
Title and subtitle of Act 387 passed in 2007.

The store's proposed location on South Caraway Road was close to apartments, and a church.

In February 2018, the store sued.

Lawsuit Claims

The store claimed the city's denial of a permit violated it's First, Fifth and Fourteenth Amendment rights and similar Arkansas rights.

Adam and Eve, LLC's attorney argued the city violated the store's first amendment rights because it "restrained the plaintiff's [Adam and Eve Jonesboro, LLC] sale of merchandise, based on the content of the merchandise."

The court disagreed with that argument saying, "Adam and Eve has cited no authority that selling sexually-oriented devices is speech."

Adam and Eve also argued that the law surrounding the zoning of adult-themed stores was too vague. In the lawsuit, the store tried to argue that the law needs to be more specific when it defines "principal business purpose."

The court disagreed with that argument, as well. While Adam and Eve, LLC believed the law should define "principal business purpose" with hard numbers regarding floor space, revenue or inventory, the court said the wording is sufficient.

Attorneys for Adam and Eve later conceded to that argument, agreeing with the court, according to the ruling.

The final argument the store tried to make involved other stores and their merchandise in Jonesboro.

Adam and Eve specifically targeted Spencer's. That store is located in the Mall at Turtle Creek - which is situated near a church and residential neighborhood.

"Adam and Eve's equal protection claim fails as it has not shown that the Act [Act 387] treats it differently than similarly situated entities or lacks a rational basis," the court said in its ruling.

"Spencer's is not similarly situated because Adam and Eve did not open before 2007," the ruling continued.

The 2007 law grandfathered in all stores who were already open, even if they didn’t meet the requirements set forth when Arkansas passed Act 387.

Adam and Eve also tried to make comparisons to Walgreen's, Walmart, and CVS - citing their sells of condoms and lubricants - but the court didn't buy that argument either.

In the end, the court upheld the lower court’s ruling, meaning Adam and Eve will not be allowed at its originally proposed location on South Caraway Road.

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