Retailer's Legal Wars: 2

Matt O'Conner
In part one we looked at how local governments are waging small-scale wars against mom-and-pop adult retailers. In today's conclusion, we'll look at the forces behind the persecution.

Big Bills
In a case of ironic twist heaped on top of ironic twist, while retailers sometimes discover sales gains amid the legal dogfights, the communities fighting them typically get a little salt rubbed in their wounds in the form of hefty bills for their own legal fees as well as those of the store owner.

The American Family Association has cost dozens of communities millions of dollars under this equation. The AFA actively solicits communities to draft restrictive adult-business ordinances, even going so far as to provide model ordinances as templates.

"What they don't tell the city is that if they lose, they're going to be left holding the bag for the city's legal fees and ours," Walters told XBiz. "I usually tell people at public hearings, 'I have plenty of business, but if you want to put my kids through college, that's fine by me.' One thing right-wingers hate more than anything is paying an adult entertainment lawyer."

Given the losing record of other municipalities and the prospect of staggering court costs, it would only seem prudent for city officials to back down from losing causes. And there are elected officials who have the courage to put common sense and respect for the law before political aspirations. Cheboygan, Mich., City Manager Scott McNeil in April ignored protestors and allowed Fantasies Unlimited to open, admitting that he had no legal grounds upon which to prevent the store from doing business.

But McNeil seems to be the exception. Time after time, officials have ignored the odds and the warnings and plowed ahead with lost causes. Alton Mayor Don Sandidge admitted of his city's attempt to keep Haltom's Johnny Vegas from opening, "We didn't have a leg to stand on." So why go through with it? As Walter's pointed out, vocal minorities within the community often won't let the issue die.

"Sometimes the citizens demand that the city not give in, even if the city is wrong [in trying to shut down a store]," Walters said. "Commissioners will tell us, 'We know what we're doing is unconstitutional; we know the law is defective, but we have to let a judge make that decision.' It's really spineless."

Squeaky Wheels
"It's a small group of people imposing its will," said Mike Zrubek, owner of Abilene, Kan.-based adult store Behind Closed Doors. "They're using taxpayer money to push their beliefs on other people."

Usually, these groups have some combination of the following four words in their name: "Christian," "conservative," "family" and/or "values." In Kansas, for example, a rabble rouser named Phillip Cosby who claims to head a group called Citizens for Strengthening Community Values has almost single-handedly convinced county officials to press obscenity charges against a Lion's Den Adult Superstore in Dickinson County.

How did he do it? By being the squeakiest wheel in town. More specifically, Cosby called out prosecutors in local newspapers and convinced a handful of like-minded retirees to threaten motorists that they would tattle to their bosses and wives if they stopped at the store.

There's nothing small-town reporters like more than staged media events and fire-and-brimstone quotes from enraged fundamentalists claiming to speak for the moral majority, even if the organization in question is so insignificant that it doesn't even have a phone number. And all it takes to put elected officials back on their heels is a few swipes in the press.

In Arizona, media coverage of a "grass-roots campaign" of about 200 letters, most of which were form letters, prompted a Republican county supervisor to deny Fascinations adult store a license to operate. The supervisor, Ann Day, admitted to making a perfunctory ruling based on an assumption that the store would violate a county zoning ordinance, despite the fact that she had never seen, nor asked for, the store's floor plans. Instead, she reacted to outrage over news reports quoting the form letter, which stirred public ire by claiming that "pedophiles will be attracted to such places to get their paraphernalia."

In the case of the Abilene Lion's Den, District Attorney Keith Hoffman responded by using a city ordinance on adult businesses to file obscenity charges against the store. Lawyers for the Midwest based chain promptly fired back with their own lawsuit claiming the ordinance is unconstitutional.

No Clear Victory
If history bears any fruit, the advantage lies with Lion's Den, and the whole mess could end up costing the city of Abilene a tidy sum. But while adult store owners throughout the United States have scored victories over right-leaning radicals, there is plenty of bad news for retailers.

In March, the Missouri state senate approved a bill that would impose a $5-per-customer fee and 20 percent tax on revenue from adult-oriented businesses. If signed into law by the governor, the measure also will limit hours of operation from 10 a.m. to 10 p.m. and give counties, cities and towns broad power to pass restrictive licensing and zoning ordinances.

Then, in April, the Supreme Court refused to hear an appeal from C&C Video attempting to challenge a South Carolina zoning ordinance that was used to shut the store down. By the time the court responded, a compromise had already been reached in which the store was allowed to relocate to an industrial area. So, C&C Video may be satisfied with the result, but the court's denial does not bode well for stores that face similar dilemmas in the future.

And in one of the most disturbing cases of late, officials in Calhoun County, Ala., in May persuaded a local judge to let them destroy more than $250,000 worth of movies seized in a 2003 raid on an adult video store.

But Walters said that, despite such setbacks, the law still favors adult businesses, and federal courts still tend to side with the law. "That's what the federal courts are for," he said, "so we cross our fingers that they'll uphold the Constitution. And if they don't, that's what appellate courts are for."

John Haltom, the man with 11 victories against 11 cities, took a less studied approach, saying, "There's nothing more thrilling than winning these court fights." Of course, that's coming from a man who shrugs off two stints in prison. After all, running an adult retail store is still a risky business.

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