The Associated Press reports that a District Court judge in Fayette County, Kentucky, today declined a request to set aside a jury verdict that found a local Hustler Hollywood store guilty of violating a local zoning ordinance or grant the store a new trial.
The decision by District Judge Megan Lake Thornton means the case will proceed on appeal to Fayette County Circuit Court, to be heard by Circuit Judge Gary Payne.
Tucker Richardson of Lexington, an attorney for the store, originally filed the appeal May 13, soon after the store was convicted, but the appeal had been stayed pending Thornton’s ruling on the store’s requests. Richardson said the store’s owner, Jimmy Flynt – the brother of Hustler magazine publisher Larry Flynt – would continue to pursue the case until the conviction is overturned, even up to the U.S. Supreme Court if necessary.
“All the way,” Richardson said. “My understanding is ... that this fight will continue on until we’re victorious, and we feel like we will be.”
On May 13, a six-man jury took about 30 minutes to find the store guilty of violating a law that prohibits sexually oriented bookstores, video stores and other entertainment centers at interstate highway exchanges in Fayette County. The store, which sits near an interchange off Interstate 75, was fined $250 for the violation.
In his motion to Thornton to set aside the verdict, Richardson said that during the trial, the city did not prove Hustler Hollywood was an adult bookstore and that the definition of “adult bookstore” the court submitted to the jury was incorrect.
“The main issue was we felt like the definition was overbroad,” Richardson said. “There was a definition of adult bookstores, they found out Hustler was going in and they made the definition a lot more restrictive for Hustler. They called it the Hustler law. That definition was used at trial.”
City attorneys chose not to file a response to the store’s motion, and Richardson told Thornton in court Thursday that that meant that “they agree with my motion.” Thornton, smiling, said she didn’t think that was the case.
“I’m going to overrule the motion, so you can take it on up” to circuit court, she said.
Richardson said he would immediately do that. The store has 30 days to file arguments supporting the appeal, he said, and the city would have 30 days to respond. After that, the circuit court would issue a ruling, which he expects would take at least 30 days.
Bruce Edwards, a spokesman for Lexington Mayor Teresa Ann Isaac, has steadfastly declined comment because the court case still is pending.
The store, which includes a coffee shop, opened July 16, 2004, without adult materials for sale. Jimmy Flynt filed a federal lawsuit seven days later claiming the zoning ordinance violated his constitutional rights.
The store began selling sexually oriented adult material July 26 of last year, and the city filed a criminal complaint in district court three days later.
Also pending in circuit court is a lawsuit the store filed against the city’s board of adjustment in January 2004 after the board rejected the store’s application to sell sexually oriented adult products. No hearings are scheduled in that case, according to court records.
Attorneys for both sides agreed to put off the federal case and try to address the constitutional issues in the two state-court cases.
