'Naughty Teddy' Not Too Naughty for Fullerton Zoning Laws

FULLERTON, Calif.—Like many municipalities, the City of Fullerton in conservative Orange County has a zoning code that deems any store whose displayed merchandise is more than 25 percent "adult" must be licensed as an "adult business," and is restricted from locating in most areas of the city.

That was the case when, about a year ago, retailer Lanny Cohen took over the location at 129 West Commonwealth Avenue that shares space with well-reviewed wine shop The Twisted Vine and opened what he describes as a "clothing and novelty store" in the space—but in short order, the store became the focus of a major zoning battle.

"When he opened, the city was suspicious that he was misrepresenting the business, because in order to get a business license, he had to tell the city that he was not putting too much adult material in," said The Naughty Teddy's attorney, Roger Jon Diamond. "The city claims that they were misled into thinking that there would be no adult. Of course, you don't have to have no adult to be okay, as long as it's less than 25 percent."

But though the municipal code doesn't specify it, the city took the position that Cohen's assortment of sexy lingerie and massage oils, taken together with a small selection of adult videos and magazines, meant that he'd exceeded the 25 percent threshhold, and promptly slapped him with a misdemeanor code violation.

"The city first took the position that the erotic and exotic lingerie with all the see-through and lacy material created the impression that it was adult," Diamond explained. "But the city couldn't get the criminal case to go forward, because we've been filing various motions and things, so finally the same law firm that has, as one of its members, the criminal prosecutor—it's a private law firm that Fullerton retains to prosecute code violations—the same law firm then, with different lawyers, filed a civil suit to get an injunction to close the store.

"When we first went to court, the judge initially made a tentative ruling that he [Cohen] had to remove all his adult stuff altogether," Diamond continued. "I pointed out to the judge—this is an Orange County judge, Jeffrey Glass—I said to the judge, 'He doesn't have to remove everything; he just has to come down to 25 percent, and he says he's in compliance.' So the judge says, 'Well, if he's in compliance, there's no problem,' and then he ordered the city attorney and me to get together and come up with an agreement as to what would be compliance, so that led to the meeting I had with the city attorney and the city's code people."

Diamond was heartened by the results of the meeting.

"The city has backed off, so as far as they're concerned, lingerie is no longer counted as 'adult,' and neither are lotions for giving massages; they backed down from that too," Diamond said. "We had a meeting last week and they now have agreed that the configuration that Lanny followed at the store would be proper, so they now in effect have blessed it."

"Basically, he hasn't changed much; it's still the same type of store," Diamond continued. "It doesn't have arcades; he sells videos and magazines and so forth, but he has a lot of lingerie and a lot of lotions, some fancy boots and things like that—even some costume rentals—but the definition, in terms of the percentage, has to do with the display area. It says the display area, the area where these items are being sold, it's the display area that has to be 25 percent or less, so there's different ways you can look at 'display area'. So he's happy and says I'm a genius. It's not a court victory; it's just that the city backed off. It's a victory to the extent that he's basically gotten his way. This is what he wanted to do."

Cohen even started a website shortly after the city began seeking its injunction, SaveTheNaughtyTeddy.org, which features news updates, a product showcase, information on pole dancing and belly dancing classes offered at the store and some other things. The store's also received positive reviews on Yelp.com, and it looks as if The Naughty Teddy will be there for quite a while longer.

"We don't have a court ruling; we have just the city itself withdrawing its claims," Diamond noted. "They still haven't dismissed the civil suit, but they agree that he's in compliance. They're happy with the configuration and everything, so the lawyer sent me a letter confirming that everything went fine and they're satisfied, so he said the city prosecutor should be getting back to us with an agreement to dismiss the pending misdemeanor charge."

Cohen was pleased to put the legal wrangling behind him.

"I'm happy with the result, and happy to continue operating the store," Cohen told AVN. "We always were in compliance [with existing laws] because lingerie was not considered adult and neither was the lotions. I'm planning on a victory party where we'll screen Digital Playground's Pirates I and 2 and have Riley Steele in for a store signing. This [victory] has been about a year in the making and we finally prevailed."

And even if rumors that Fullerton will change its "adult business" definition to include merchandise like that offered by The Naughty Teddy, Diamond assures that the store would have to be grandfathered in.