DANVILLE, Va. — Shhh ... Intimacy on a New Level, which sells lingerie, sex toys and porn DVDs, has been shut down by Pittsylvania County's Board of Zoning Appeals.
The violation: officials say that the sale of sex toys and pornography isn't allowed in the county.
Shhh co-owner Trish Post, who opened the store April, said she plans to appeal the order to the zoning board. Once Post files an appeal, she may continue to operate the store pending the appeal’s outcome, according to Danville Register & Bee.
Post said she stopped selling porn DVDs last month after she learned that it could be illegal in the county but that the county ordered the store shut. Shhh continues selling products on its website.
Pittsylvania County's zoning ordinance lists types of allowed stores and sales of items that are allowed, but it does not expressly forbid sex toys or porn.
The move by local officials to order the Mount Herman store closed has some scratching their heads, including adult entertainment industry attorney Lawrence Walters.
Walters told XBIZ on Tuesday that it would be a clear violation of the First Amendment to shut the store down because it is selling porn DVDs and sex toys, "particularly if the county did not have a specific zone where such stores could operate as a matter of right."
"It appears that county officials do not like the type of business being conducted, and have used their zoning authority to enforce morality," Walters said. "The U.S. Supreme Court has made clear that local governments cannot impose de facto censorship by zoning adult entertainment businesses out of existence."
The Register & Bee also reported that zoning Board Chairman Marshall Ecker told the paper that the county also must look at its obscenity ordinance in relation to the Shhh shutdown.
“We need to address it and make it stronger,” Ecker said during an interview with the paper.
According to the county’s ordinance, “obscene” means that which “has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits or candor in description or representation ... and which ... does not have serious literary, artistic, political or scientific value.”
Walters said that one of the phrases in the ordinance ("which goes substantially beyond customary limits or candor in description or representation") goes well beyond established law and is likely illegal.
"To the extent that obscenity is a concern, that issue is handed on a case by case basis, and not by labeling the store as a whole, ‘obscene,’" Walters said. "Moreover, it appears from the local reports that the county may be using a definition of obscenity that conflicts with the Miller test and may thus be unconstitutional."
