Written by The Business Journal Staff
Hustler says the city is stifling its First Amendment rights in considering the Hustler Hollywood Store an adult business — a designation that would preclude the store from opening.
HH-Fresno, LLC, filed the civil case in federal court earlier this month. Hustler is seeking to keep the city from enforcing its code, as well as receive monetary damages.
According to court documents, Hustler began considering opening a retail store back in September 2015 at the old Silver Dollar Hofbrau location on Shaw Avenue and Highway 41. The store executed a lease in December 2015 for the 5,576 square-foot space.
Hustler submitted a zoning inquiry in November 2015 to see whether it would be allowed under the current zoning, according to court docuement.
The zoning question hinges on whether the store would be considered an “adult novelty store” — which at the time of the inquiry was defined as any building where 25 percent of more of the display area is used to sell devices or paraphernalia “evidently designed or marketed for sexual stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.”
Hustler Hollywood said it mainly sells lingerie, gag-gifts, marital aids and brand name souvenirs, with minimal “adult” instruments offered.
After receiving a response from the city on Dec. 3, 2015, Hustler — believing it would avoid designation as an adult novelty store — moved forward with the store, signing a 10 year lease. It also purchased fixtures for the store.
In court papers, Hustler said it operates retail stores in more than 20 cities across the U.S., restricting inventory to avoid an adult classification in compliance with municipal zoning.
One day after the department responded to inquiry, Hustler says the city revised the code without their knowledge, broadening the kind of merchandise that would trigger the 25 percent threshold, according to court documents. The code also set up a new adult product display restriction of 25 percent or more or 500 square feet — whichever is less.
Hustler planned to allocate about 1,000 square feet to “speciality” items that would count as “adult novelty store” offerings.
The city ultimately declined to sign off that Hustler Hollywood would fit the zoning, and now the plaintiff’s claim exercise of their First Amendment right “has been systematically squelched at the hands of the defendants.”