Abilene Retail # 30, Inc. v. Six
| Decision Date | 26 June 2009 |
| Docket Number | No. 09-2195-JAR.,09-2195-JAR. |
| Citation | 641 F.Supp.2d 1185 |
| Court | U.S. District Court — District of Kansas |
| Parties | ABILENE RETAIL # 30, INC., d/b/a/ Lion's Den Adult Superstore, Plaintiff, v. Stephen N. SIX, In his Official Capacity as Kansas Attorney General, Defendant. |
John Michael Murray, Raymond V. Vasvari, Jr., Berkman, Gordon, Murray & Devan, Cleveland, OH, Richard T. Bryant, Richard T. Bryant & Associates, PC, Kansas City, MO, for Plaintiff.
Catherine C. Theisen, Terrence J. Campbell, Barber Emerson, LC, Lawrence, KS, for Defendant.
The Court now considers plaintiff's Motion for Preliminary Injunction (Doc. 2), which has been fully briefed. The Court held an evidentiary hearing and heard oral argument on June 4, 2009. After fully considering the written briefs, oral argument, and evidence adduced at the hearing, the Court grants the motion for preliminary injunction, as explained more fully below.
Plaintiff, Abilene Retail # 30, Inc., is a corporation organized and existing under laws of the State of Ohio and licensed to do business in the State of Kansas as "Lions Den Adult Superstore" ("Lion's Den"). Defendant Stephen N. Six is the duly elected Attorney General of Kansas, who is authorized and required to represent the State in all actions arising from K.S.A. § 68-2255, the statute at issue in this case. He is sued here solely in his official capacity for purposes of obtaining declaratory and injunctive relief.
Lion's Den, located in Dickinson County, Kansas, offers adult oriented videos for sale or rent and retails DVDs, and magazines that contain sexually-oriented content. In addition to books and videos, Lion's Den sells other items such as novelties, vibrators, clothing, lingerie, greeting cards, and a wide array of "enhancement devices." Sabrina Breeden, a manager at Lion's Den, testified that these enhancement devices include dildos and artificial vaginas. Breeden testified that the packaging for these devices includes both pictures and text and that some contain pictures of nudity. The enhancement devices are located to the left of the front door of the store and are presented under signs "for him," or "for her." Breeden testified that Lion's Den markets the products they sell to those interested in "a healthy sex life" and not to those with a "prurient interest in sex."
K.S.A. § 68-2255(b)-(d) provides:
(b) No sign or other outdoor advertising, for an adult cabaret or sexually-oriented business shall be located within one mile of any state highway except if such business is located within one mile of a state highway then the business may display a maximum of two exterior signs on the premises of the business, consisting of one identification sign and one sign solely giving notice that the premises are off limits to minors. The identification sign shall be no more than 40 square feet in size and shall include no more than the following information: Name, street address, telephone number and operating hours of the business.
(c) Signs existing at the time of the effective date of this act, which did not conform to the requirements of this section, and amendments thereto, may be allowed to continue as a nonconforming use, but should be made to conform within three years from July 1, 2006.
(d) Any owner of such a business who violates the provisions of this section shall be guilty of a class C misdemeanor. Each week a violation of this section continues to exist shall constitute a separate offense.
"Sexually-oriented business" is defined by the statute as follows: 1
"Sign" or "outdoor advertising" means "any outdoor sign, display, device, notice, bulletin, figure, painting, drawing, message, placard, poster, billboard or other thing which is designed, intended or used to advertise or inform, any part of the advertising or informative contents of which is located within an adjacent area, and is visible from the state highway."2
K.S.A. § 68-2255 was enacted by the Kansas Legislature and approved by the Governor on April 18, 2006.3 Senator Tim Huelskamp testified before the Senate Federal and State Affairs Committee about the bill on February 20, 2006, arguing that sexually-oriented businesses have a negative impact on Kansas families, as signs 4 Phillip Cosby also testified before this committee and presented the committee members with certain evidence about the negative secondary effects of sexually-oriented business ("Increased Crime, Increased STDs, Property Devaluation & General Blight").5 Joe Nold, a resident of Dickinson County, testified about the negative effects of Lion's Den in that county. The final version of the bill includes the following statement:
(e) This section is designed to protect the following public policy interests of this state, including, but not limited to: (1) To mitigate the adverse secondary effects of sexually-oriented businesses; (2) to improve traffic safety; (3) to limit harm to minors; and (4) to reduce prostitution, crime, juvenile delinquency, deterioration in property values and lethargy in neighborhood improvement efforts.
Plaintiff maintains, in Dickinson, Geary and Russell counties, signs and outdoor advertising, within the meaning of K.S.A. § 68-2255(a)(6), within one mile of various state highways, the maintenance of which will be a misdemeanor crime on and after July 1, 2009. Plaintiff also wishes to erect, lease, develop and maintain other off-site outdoor signs and advertising, within one mile of state highways, to advertise the existence and location of its business.
Specifically, plaintiff submits evidence that it displays three (3) billboards along I-70 in Dickinson, Geary, and Russell counties. None of the billboards contain images; however, the company logo appears on two of the billboards. They all display yellow block letters on a black background stating that an adult "superstore" named Lion's Den is located at Exit 272. The on-premises signs are as follows: (1) a sign on the roof containing the company logo, "Adult Books and Videos, The Adult Superstore for Men and Women"; (2) a parking lot sign that states "Adult Superstore" in block letters; (3) a sign on the door warning potential patrons not to enter if they are offended by sexually explicit materials and stating that minors are prohibited from entering the store and stating that photo ID will be required for potential customers; (4) a sign by the door notifying customers that the store is closed between midnight and 6:00 a.m. daily, in compliance with local law; and (5) other signs such as those for an emergency exit, those stating that loitering is prohibited, and those advertising which credit cars are accepted by the business.
Plaintiff's business is located immediately adjacent to an exit ramp for Interstate Highway I-70, and is located within one mile of Interstate Highway I-70. At the hearing, Breeden testified that the billboards are an important form of advertising for Lion's Den because it is the only way to reach its main potential customers—those traveling along the interstate. Breeden testified that Lion's Den patrons include both married and single people who are interested in "a healthy sex life."
In November 2003, the citizens of Dickinson County convened a grand jury to investigate whether there was probable cause to believe that Lion's Den violated the Kansas obscenity statute. That statute currently provides:
(a) Promoting obscenity is knowingly or recklessly:
(1) Manufacturing, issuing, selling, giving, providing, lending, mailing, delivering, transmitting, publishing, distributing, circulating, disseminating, presenting, exhibiting or advertising any obscene material or obscene device;
(2) possessing any obscene material or obscene device with intent to issue, sell, give, provide, lend, mail, deliver transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise such material or device;
(3) offering or agreeing to manufacture, issue, sell, give, provide, lend, mail, deliver, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise any obscene material or obscene device; or
(4) producing, presenting or directing an obscene performance or participating in a portion thereof which is obscene or which contributes to its obscenity.6
"Obscene device" is defined in § 21-4301(c)(3) as "a device, including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs, except such devices disseminated or promoted for the purpose of medical or psychological therapy."
The grand jury issued an amended indictment, alleging Lion's Den disseminated "obscene devices" under the statute. The state district court dismissed the indictment due to defects in the citizen petition that led to the convening of the grand jury. In 2004, the County Attorney re-filed charges alleging substantially similar crimes in a "complaint/information." That case was ultimately dismissed, as the district court judge found that the statute as then written was unconstitutional under Kansas precedent.7
Plaintiff filed the Complaint in this matter, alleging facial and as-applied challenges to K.S.A. § 68-2255. Plaintiff claims that the statute violates the First and Fourteenth Amendments by prohibiting off-premises signs near state highways and by limiting the display of on-site signs...
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