A First Amendment story

Up until last Friday, you could walk into Bed Tyme Stories on Hendersonville Road and pick up videos with titles that included Eager Beavers, Anal Cravings #6 and Flesh of the Lotus You also could procure copies of Big Bazooms and Man’s Man magazines (though a sign warned customers against removing the plastic magazine wrappers before plunking down their cash).

But in the wake of a March 28 court ruling, the store’s offerings have been reduced to such decidedly tamer video fare as Father of the Bride and magazines featuring scantily clad women.

After a hearing on March 25, Superior Court Judge James L. Baker Jr. ruled that Buncombe County can enforce its adult-business ordinance. The decision directly affects both Bed Tyme Stories (in Arden) and another adult bookstore, Fantasy World (in Candler), which could be forced to move, cease operations or simply reduce the amount of sexually oriented material for sale so they no longer fit the county’s definition of “adult bookstore.”

At issue were the county’s 1995 adult-business ordinance and a 1999 amendment specifying where such enterprises can operate. New establishments may not be within 500 feet of a residence or 1,000 feet of a school, church, library, day-care center or park; existing adult businesses were given three years to satisfy the new rules. Adult businesses also must pay a $1,000 annual license fee.

The three-year period ran out March 29 for Bed Tyme Stories; for Fantasy World, it will expire in August for (both stores are within 1,000 feet of churches). The county’s only other adult-themed retail business, Southeastern Fantasy Video (just down the road from Bed Tyme Stories), isn’t close enough to any of the specified entities to be affected by the ordinance.

With time running out, Bed Tyme Stories and Fantasy World pooled their resources to hire a pair of attorneys to challenge the county: Luke Charles Lirot of Tampa (immediate past president of the First Amendment Lawyers Association) and Joel B. Stevenson of Asheville.

On March 15, they filed a motion for a preliminary injunction to stop the county from enforcing the ordinance until a trial could be held to determine its merits.

In a lengthy argument that sometimes resembled a law-school lecture, Lirot told the judge that the county hadn’t laid an adequate legal foundation to satisfy the exacting requirements of First Amendment case law when it adopted its ordinance. Lirot had already handed the judge a hefty binder full of prior court rulings

“The county didn’t flesh out — no pun intended — the required predicate,” suggested Lirot, prompting smiles around the courtroom.

The government must demonstrate that its ordinance was not designed to govern the “content” offered by the businesses (which is protected by the First Amendment) but was instead aimed at addressing any harmful “secondary effects” such businesses might have on the community, such as increased crime, plummeting property values nearby, or accelerated urban blight. It’s not enough, Lirot argued, simply to lift the wording from other ordinances without relating the secondary effects to the local situation. And in these specific cases, the businesses in question haven’t caused any harmful effects, he said.

Lirot also criticized the county’s definition of “adult bookstore” as vague and too broadly worded.

In response, County Attorney Joe Connolly argued that the county isn’t attempting to regulate “content or conduct,” but only the locations of such businesses. Buncombe’s ordinance, he said, is very similar to one in Onslow County, N.C., and Connolly cited two cases from that county that have been upheld in North Carolina’s courts.

Judge Baker mentioned that Onslow County had conducted a comprehensive study before adopting its ordinance and asked whether Buncombe County had done the same.

Connolly acknowledged that it hadn’t, insisting that the county doesn’t have to conduct independent studies before adopting ordinances.

“We are not trying to restrict and say to these plaintiffs, ‘Don’t be selling whatever list of adult books, movies or devices,’” Connolly proclaimed. “We’re simply dealing with location.”

The judge asked Lirot whether the businesses would really be irreparably harmed if they were forced to move.

“Absolutely, judge, absolutely,” Lirot declared, adding that moving to sites that complied with the ordinance would, in effect, force the businesses to set up shop “out in the middle of nowhere.”

But Judge Baker didn’t agree. In a six-page order, he poked holes in Lirot’s arguments — though he did say the attorney had “skillfully attacked” the county’s ordinances. Of the 69 cases Lirot had submitted, the judge noted that not a single one was from North Carolina courts. And though Liro did cite a couple of cases from the U.S. Court of Appeals for the 4th Circuit, they dealt only with minor procedural issues.

Since the county hadn’t tried to regulate content, Baker found that it had met the requirements outlined in a 1968 U.S. Supreme Court case (United States v. O’Brien). The case holds that regulations are permitted, even when they impose an “incidental burden” on expression — so long as the government meets four tests. Those are: that it has the constitutional power to act; that the regulation furthers a substantial governmental interest; that the governmental interest is unrelated to suppressing free expression; and that the incidental restriction on First Amendment freedoms is no greater than is essential to further that interest.

Connolly, for his part, was pleased by the ruling. “I’m very appreciative that the judge denied the request for the preliminary injunction,” he said shortly after learning of the decision.

Bed Tyme Stories General Manager Jayne Owens seemed disappointed, though not ready to give up. She said she planned to keep the store open, though by Friday morning all the adult-content videos and magazines had been moved to a storage room. That’s where they’ll stay, she said, until store management can meet with county officials to figure out exactly how much adult material they can sell and not be considered an adult bookstore — at least until the issue is finally decided at a trial.

“We’re continuing to fight the fight,” said Owens, in between fielding media and customer phone calls. “We’re not going to close our doors and go away.”

She said she hoped the store’s “incredibly large base of customers” — including 4,701 video renters — will continue to support Bed Tyme Stories. A stack of cards at the cash register encouraged customers to call the Buncombe County commissioners and voice their complaints about the ordinance.

Even though the videos are out of sight, people can still pick up any number of sex toys — from a “Gladiator Harness” to a ring-toss game featuring glow-in-the-dark penises to a generous assortment of vibrators. That’s why store employees still check IDs at the door to make sure customers are 21 or older.

But the county may have another option for having its way with Bed Tyme Stories, since the ordinance also bars people with felony convictions (or certain misdemeanor ones) from holding an adult business license.

According to Lirot, both Donna L. Eaton (a stockholder in the company that owns Bed Tyme Stories) and Owens had pleaded guilty to misdemeanor charges in South Carolina last year. The women opened an adult bookstore in Cherokee County and within days faced obscenity charges related to selling sexually oriented videos, Lirot said. Under a plea bargain, Eaton, Owens and other employees pleaded guilty to misdemeanor charges of “misprision of a felony,” which means that they failed to stop someone else from selling an obscene video, the attorney explained. But he said the plea bargain had been structured so it wouldn’t affect their Buncombe County license.

A trial to determine the validity of the county’s ordinance is scheduled for May 6 in Buncombe County Superior Court. But Connolly told the judge that everyone might be back in court even sooner. That’s because the ordinance requires a hearing within 10 days of when officials find out about any conviction that might lead to the suspension or revocation of an adult business’s license.

For adults only

The Buncombe County Code of Ordinances defines an adult bookstore as one:

(1) Which receives a majority of its gross income during any calendar month from the sale of publications including books, magazines, videotapes, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this section; or

(2) Having as a preponderance of its publications, books, magazines, videotapes, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specific sexual activities or specified anatomical areas, as defined in this section.

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