Eighth Circuit Locks the Door on Adam & Eve Store in Jonesboro

JONESBORO, Ark.—According to the Eighth Circuit Court of Appeals, the words "principal," "main" and "chief" don't mean what you think they do. Adam & Eve's franchise store in Jonesboro found that out the hard way.

Arkansas, where just over 60 percent of voters went for Trump in 2016, can certainly be called a "red state," despite it once having had Bill Clinton as its governor. So it's hardly surprising that in 2007, the state passed an anti-adult zoning law, Act 387, which allegedly "establish[ed] requirements governing the location of adult-oriented businesses in order to protect the public health, safety, and welfare and to prevent criminal activity." The excuse for the law was the usual: so-called "adverse secondary effects" from adult businesses, including "property crime, illicit drug use, prostitution, the potential spread of disease, and sexual assault," all of which have since been debunked by researchers.

Act 387 applies to adult book and video stores which offer for sale or rent, as one of their "principal business purposes," books, magazines or videos that "depict[] or describe[] a specific sexual activity," or "An instrument, a device, or paraphernalia that is designed for use in connection with a specific sexual activity."

Interestingly, the Act grandfathered stores which existed before July 31, 2007, but allowed municipalities to pass ordinances that were "at least as restrictive" as the state Act. The grandfathering didn't help Adam & Eve's franchisee, which in 2017 received a "privilege license" to do business in Jonesboro—one that required it to "coordinate with city planners to ensure that their proposed locations and uses comply with zoning laws." That's something the Eighth Circuit said the store failed to do, leading the local building inspector to refuse to issue a certificate of occupancy on January 25, 2018, charging in part that the store didn't meet the required 1,000-foot separation from churches, daycare centers and residences. The store sued the city and its mayor less than one month later, arguing that the refusal to allow the store to open infringed on its First, Fifth and Fourteenth Amendment rights, and charged that the city's ordinance was "unconstitutionally vague."

According to an article on the Courthouse News website, in filing the suit, Adam & Eve's attorney Lloyd Kitchens noted that his client was neither an adult bookstore or video store, that no books or videos would be sold on the premises, and that "only 30% of the stores sales would be devoted to sexually-themed items."

Interestingly, during argument in front of the Eighth Circuit panel, the judges—two Trump appointees (David Stras, Jonathan A. Kobes) and one George W. Bush appointee (Raymond Gruender), with Kobes authoring the decision—asked Assistant Attorney General Dylan Jacobs how the Adam & Eve store differed from Walmart, Walgreens and CVS Pharmacy, all of which sell similar sex toys and none of which have been targeted by law enforcement?

"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."

Um ... no, it isn't—but those mainstream outlets were grandfathered under the Act.

Worse still, though Kitchens argued that the Act was unconstitutional because it failed to state what percentages of sexually-themed items would have been acceptable, nor any definition of what a "principal business purpose" is, the appeals decision accepted the district court's "plain meaning" interpretation of the phrase as "main or chief," and agreed with the lower court that "a business with 'one-third of the gross revenue [] derived from [these] various products that qualify' is sufficient."

Funny; anyone familiar with the English language would "plainly" interpret those terms to mean that more than 50 percent of the stock would have to be devoted to those items.

But not this panel. Instead, it reached back to a couple of non-speech cases to hold that "Legislatures are not required to define every term in a statute," and that, "In the absence of a definition, words are given their ordinary meaning."

"We find that the ordinary meaning of principal business purpose is not vague," the panel concluded, adding that neither the amount of floor space devoted to such items, nor the gross or net revenue derived from their sales, nor even the amount of such items in inventory counted toward "principal business purpose." "We do not require such precision," was the panel's incredible response to that argument," comparing "principal," "main" and "chief" to other decisions based around the terms "substantial" or "significant." It also found that the Act contemplated the possibility of a business having "more than one business purpose."

The Eighth Circuit also deep-sixed Adam & Eve's First Amendment claim, which argued that the store had been denied its permit "based purely on content[;] they don’t like what [Adam and Eve is] selling," finding that "Adam and Eve has cited no authority that selling sexually-oriented devices is speech," and also finding that the sale of "sexually-themed items" is not "expressive conduct," which would be protected. It claimed that Adam & Eve's statements during argument that the store wouldn't be selling DVDs or other porn, and would have no viewing booths, as evidence that the business was "disavowing any expressive conduct."

As might be expected, David Keegan, Adam & Eve's head of franchising, wasn't happy with the Eighth Circuit's decision:

"Adam & Eve strongly disagrees with the basis of the ruling in the Eighth Circuit court concerning allowing Adam & Eve to open a store in Jonesboro, Arkansas," Keegan stated in an email. "Adam & Eve stores are classified as a specialty retail store that sells some adult product, not a sexually oriented business, adult book store, or a video store. Over 85% of our stores consist of lingerie, soft goods, lotions, massage oils, and educational books, along with some novelty products that promote sexual health and awareness along with safe sex. This store is not selling explicit magazines, books or DVDs.

"As for the argument, that Adam & Eve stores will allegedly have adverse effects on the community and contribute or create a potential for more bad secondary effects, we again totally disagree. As stated by our lawyer, there is no such evidence on record or studies that state this as fact. In fact, if you take the time and talk to our customers, which are mostly women (85%) and couples, they will tell you the exact opposite: that our stores have a very positive impact in their lives as a whole.

"It is a shame the city of Jonesboro has banned a store that would have provided much to the community. Besides providing the needed tax revenue for the city, it would have been a beautiful storefront rather than an empty storefront, along with a very positive experience to their population.

"Adam & Eve will honor this ruling and move on to a town or city that wants to embrace a company that wants to provide income for the city while offering a great shopping experience to their residents. Adam & Eve continue to expand, and currently we have over 75 stores throughout the country and two internationally with a goal of 400 stores."