Adam & Eve, the adult apparel and novelty store, is taking its fight to open a location in Jonesboro to the 8th U.S. Circuit Court of Appeals.
Adam & Eve Jonesboro LLC is challenging an Arkansas statute defining an adult bookstore.
Earlier this year, the city of Jonesboro said Adam & Eve was an adult bookstore and therefore its location at 1518 Caraway Road didn’t meet zoning requirements, even though the store had already received a privilege license to operate. When the store was stocked and ready to open, the city refused to give the retailer a certificate of occupancy and refused to inspect the store, according to the store’s attorney, Tré Kitchens of the Brad Hendricks Law Firm in Little Rock.
The store needed to be farther away from churches, day care centers and homes, the city said, according to the lawsuit Adam & Eve filed in February in U.S. District Court in Jonesboro. The store named as defendant the city of Jonesboro. Adam & Eve said the city was using the state statute defining an adult bookstore to block the retailer’s opening, a move that should be considered an unconstitutional prior restraint on speech and expression.
The Arkansas statute defines an adult bookstore or video store as a business that offers “the following as one of its principal business purposes: an instrument, a device, or paraphernalia that is designed for use in connection with a specific sexual activity.”
Kitchens said Adam & Eve shouldn’t be classified as an adult bookstore. Adam & Eve “doesn’t sell books and that particular store doesn’t sell videos either,” he said.
He said Adam & Eve wants equal protection under the law because other stores, such as Walmart, sell lingerie and personal massagers just as Adam & Eve does.
In addition, Kitchens said, the statute fails to define “principal business purpose.” Adam & Eve generates about 30 percent of its sales from items that are sexual in nature, which means condoms, lubricants and vibrators, he said.
“You can find all those things at Walmart, CVS, Walgreens, but they don’t sell as much of those things as my client,” he said. “Our position was that was an unfair application.”
An attorney for the city of Jonesboro, C. Burt Newell of Hot Springs, said, “the man and woman on the street know” the difference between Walmart and Adam & Eve. “You could probably buy condoms in Walmart, but you most likely can’t buy a large array of sex toys in Walmart,” he said. “That’s the difference.”
In August, U.S. District Court Judge D. Price Marshall ruled in favor of the city.
Kitchens is appealing the ruling.
He said that the statute’s definition is poorly worded. “It’s a hard law to understand, and can be tailored by either the state or the city to do almost anything they want to shut a business down,” he said.
Kitchens noted that the city of Jonesboro gave Adam & Eve a privilege license for 2017 and 2018 to operate.
Jonesboro City Attorney Carol Duncan, however, told Adam & Eve earlier this year that the store needed an application for a conditional use permit based upon its zoning.
In its lawsuit, Adam & Eve said the store planned to sell a mix of adult and non-adult merchandise, including lingerie, candles and gift bags. And the store wasn’t planning on having booths or stalls for customers to view movies or other adult content.
“We want businesses to be able to open,” Kitchens said. “They’re not selling anything that’s morally reprehensible. They’re selling things for adults to use and that’s all.”
On its website, Adam & Eve, based in Carrboro, North Carolina, describes itself as the nation’s largest marketer of adult products.
Little Rock’s Adam & Eve location opened in 2011. “And it’s not causing the moral downfall of Little Rock,” Kitchens said.
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