Adam & Eve Jonesboro, LLC v. Perrin

• Decision Date: 12 August 2019
• Docket Number: No. 18-2818,18-2818
• Citation: 933 F.3d 951
• Parties: ADAM AND EVE JONESBORO, LLC, Plaintiff - Appellant v. Harold PERRIN, In His Official Capacity as Mayor of the City of Jonesboro, Arkansas Defendant - Appellee Leslie Rutledge, Attorney General for the State of Arkansas Intervenor
• Court: U.S. Court of Appeals — Eighth Circuit

933 F.3d 951

ADAM AND EVE JONESBORO, LLC, Plaintiff - Appellant

v. Harold PERRIN, In His Official Capacity as Mayor of the City of Jonesboro, Arkansas Defendant - AppelleeLeslie Rutledge, Attorney General for the State of Arkansas Intervenor

No. 18-2818

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2019

Filed: August 12, 2019

Counsel who presented argument on behalf of the appellant was Lloyd W. Kitchens, III, of Little Rock, AR. The following attorney(s) appeared on the appellant brief; C. Burt Newell of Hot Spring, AR.

Counsel who represented appellant Harold Perrin did not argue, but joined the brief of Intervenor Leslie Rutledge.

Counsel who argued on behalf of Intervenor Leslie Rutledge, AR Attorney General, was Dylan L. Jacobs, AAG, Little Rock, AR. Also appearing on intervenor brief was Jennifer L. Merritt, AAG, of Little Rock, AR.

Before GRUENDER, STRAS, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

Adam and Eve Jonesboro, LLC (Adam and Eve) appeals from the district court’s¹ judgment upholding the constitutionality of an Arkansas zoning law that prevents adult-oriented businesses from opening within 1,000 feet of schools and other places frequented by children. We hold that Adam and Eve has not engaged in speech and therefore cannot state a claim under the First Amendment. We also hold that the zoning law is not unconstitutionally vague and does not violate equal protection. We affirm.

I.

Arkansas passed Act 387 of 2007 "to establish requirements governing the location of adult-oriented businesses in order to protect the public health, safety, and welfare and to prevent criminal activity." Ark. Code Ann. § 14-1-301(a). The Act prohibits those businesses from locating within 1,000 feet of a "child care facility, park, place of worship, playground, public library, recreational area or facility, residence, school, or walking trail." Id. § 303(a). The legislature acted "on evidence of the adverse secondary effects of adult-oriented businesses and on findings discussed in cases, including City of Los Angeles v. Alameda Books, Inc. , 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), Erie v. Pap’s A.M. , 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and Young v. American Mini Theatres , 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)." Id. § 301(b). These harmful secondary effects include property crime, illicit drug use, prostitution, the potential spread of disease, and sexual assault. Id. The legislature decided that these businesses "should be separated from ... places frequented by children to minimize the impact of the secondary effects." Id.

The Act applies to an "adult bookstore or video store," which is defined as a commercial establishment that "offers for sale or rent any of the following as one (1) of its principal business purposes":

(A) A book, magazine, periodical or other printed matter, photograph, film, motion picture, videocassette, reproduction, slide, or other visual representation that depicts or describes a specific sexual activity; or

(B) An instrument, a device, or paraphernalia that is designed for use in connection with a specific sexual activity.

Id. § 302(2). A "specific sexual activity" is a "sex act, actual or simulated," or "[f]ondling or other erotic touching of a human genital, a pubic region, a buttock, an anus, or a female breast." Id. § 302(24).

The Act grandfathers in stores that opened before July 31, 2007, and does not apply when a protected site, like a school or daycare, subsequently locates within a business’s buffer zone. Id. §§ 303(c), 307. Violations of the Act are punished as a Class A misdemeanor. Id. § 306. Localities may also pass ordinances that are "at least as restrictive" as the Act. Id. § 304.

More than a decade after the Act became law, Appellant wanted to open an Adam and Eve franchise in Jonesboro. According to its website, the national retailer promotes itself as the "#1 Adult Toy Superstore" and the "leading sex toy company in the USA."² It advertises a wide variety of bondage gear, lingerie, movies, and personal lubricants. Id. The proposed Jonesboro franchise, however, would sell only lingerie, adult toys, costumes, novelties, games, massage oils, and personal lubricants.

In December 2017, Adam and Eve received a privilege license to do business in Jonesboro. The privilege license application instructs potential entrepreneurs to coordinate with city planners to ensure that their proposed locations and uses comply with zoning laws. Adam and Eve did not do so, and on January 25, 2018, the building inspector refused to issue a certificate of occupancy that is required to open a business. The City Attorney explained that "the location chosen by the store requires them to apply for and receive a conditional use permit, based upon its zoning." JA 13. The permit could not issue because "it does not meet the distance requirement from churches, daycares, and residential uses." Id.

II.

Adam and Eve filed suit pursuant to 42 U.S.C. § 1983 alleging that the Act violated its First, Fifth, and Fourteenth Amendment rights and similar Arkansas rights. The complaint asserted that the Act violated the First Amendment because it "restrains the plaintiff’s retail sale of merchandise, based on the content of the merchandise." JA 5. Adam and Eve highlighted it would not host on-site entertainment such as "booths, stalls, or ... rooms for the on-premises viewing of movies" or "live adult entertainment or dancing of any sort." JA 2.

Arkansas intervened to defend the Act. The parties conducted limited discovery and stipulated to these facts: (1) Adam and Eve could open a store in the correct zoning area, (2) Adam and Eve would not sell pornographic DVDs, books, and magazines, (3) other Jonesboro stores, such as Walmart, sell regulated items like condoms, and (4) a nonparty retailer, Spencer’s, opened prior to 2007 and its inventory contains less than 10% of such items. Adam and Eve also conceded that more than 30% of its revenue derived from regulated items.

After a full day of argument, the district court ruled from the bench. The court concluded that intermediate scrutiny applied to Adam and Eve’s First Amendment claim and held that, under Renton and Alameda Books, the Act passed muster. Specifically, the court credited the legislature’s focus on the secondary effects caused by adult businesses. Thus, it was "quite reasonable and rational for a legislator to conclude that more of these kinds of [adult-oriented] businesses contribute or create the potential for more of the bad secondary effects." JA 181.

Turning to the vagueness challenge, the court rejected Adam and Eve’s arguments that the Act was unconstitutional because it "doesn’t contain percentages, [and] it doesn’t contain definitions of what [ ] a principal business purpose is." JA 139. According to Adam and Eve, the legislature must define it "by floor space, gross revenue, net revenue, [or] amount in inventory." JA 141. The district court, however, interpreted the term’s plain meaning as "main or chief." JA 181. Although 10% of gross revenue from regulated products is not enough to qualify as a principal business purpose, the district court found that a business with "one-third of the gross revenue [ ] derived from [these] various products that qualify" is sufficient. JA 184.

The district court also rejected the claim that the Act violates equal protection because it has not been applied to Walmart and Spencer’s, who also sell regulated items. It held that "[t]here’s no other business similarly situated that’s been treated differently or better." JA 182–83. Although Spencer’s is similar to Adam and Eve, it was not similarly-situated because the Act grandfathered in nonconforming businesses. The court noted that the law "routinely draws lines involving dates." JA 183. As to other stores, the court explained that there was "no evidence that the sale, offering for sale of these kind of materials at Walmart or Walgreen’s or CVS is anything other than incidental." Id.

Adam and Eve timely appealed. We review constitutional challenges and questions of statutory interpretation de novo . Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds , 686 F.3d 889, 893 (8th Cir. 2012) (en banc).

III.

The First Amendment prohibits laws "abridging the freedom of speech." U.S. Const. amend. I. Its protection extends beyond verbal and written statements to expressive conduct that is "sufficiently imbued with elements of communication." Texas v. Johnson , 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Such conduct includes "nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag." Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , ––– U.S. ––––, 138 S. Ct. 1719, 1741–42 & n.1, 201 L.Ed.2d 35 (2018) (Thomas, J., concurring in part and in the judgment) (collecting cases). Even sales of "video games qualify for First Amendment protection." Brown v. Entm’t Merchants Ass’n , 564 U.S. 786, 790, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).

Yet, not all conduct is "protected speech simply because the person engaging in [it] intends thereby to express an idea." Masterpiece Cakeshop , 138 S. Ct. at 1742. A court "must first determine whether [the plaintiff’s action] constituted expressive conduct." Johnson , 491 U.S. at 403, 109 S.Ct. 2533. We ask "whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it." Id. at 404, 109 S.Ct. 2533. The party "desiring to engage in assertedly expressive conduct [must] demonstrate that the First Amendment even applies." Clark v. Cmty. for Creative Non-Violence , 468 U.S. 288,...