John Haltom, who owns the Johnny O’s and Doctor Johns chains, says that businesses such as his are “unconstitutionally and unreasonably designated as 'sexually oriented businesses' under the law.”
Enacted in August, Section 226.531 of Missouri law says a sexually oriented business can’t advertise on billboards within a mile of a state highway. Those businesses have three years to bring existing billboards into compliance.
But Haltom says that while his stores may devote more than 10 percent of display space to sexually oriented materials, the sales of those materials are not a “substantial portion” of its business, according to a complaint filed in U.S. District Court.
Haltom’s stores primarily sell high-end lingerie and sex toys.
The retailer, who features “buxom babes in tight brassieres” on his billboards, said in the suit against state Attorney General Jay Nixon that the 10 percent threshold is too low.
“Targeting such legislation at businesses that deal in material protected by the First Amendment, but which restrict their adult material to a small portion of sales and floor space, constitutes unlawful prior restraint in violation of the First Amendment,” the suit says. “[S]uch targeting constitutes unlawful censorship.”
“The statute at issue here does not serve a substantial governmental interest. It merely serves as a censorship device unrelated to urban planning and zoning concerns, and unrelated to concerns over the quality of urban life.”
The Missouri law has been challenged before in federal court. In February, a judge in Kansas City refused to enjoin enforcement of the statute, finding that the law served the state's interest in minimizing “negative secondary effects,” such as decreased property values, increased crime and general “urban blight” of sexually oriented businesses.
But the plaintiffs in that case were a strip club and an adult bookstore that did not contest it was a sexually oriented business.
In a similar case, the 5th U.S. Circuit Court of Appeals sided with the City of San Antonio, Texas, that questioned the breadth of an ordinance that applied to stores devoting more than 20 percent of inventory or floor space to sexually explicit materials.
In the current case, Haltom is asking the court for declaratory and injunctive relief and damages.
Haltom, who owns other sex toy stores in Iowa, Utah, Colorado and Nebraska, is no stranger to the legal arena. He spent six months in jail in Utah for selling videos the state deemed obscene. At the time, Haltom said two of his 16 stores were in Utah because residents there are sexually repressed.
The retailer got his start in the industry by selling adult videos at flea markets in the St. Louis area.
