Hustler sues Fresno, says city changed rules to stop it from opening adult store

Hustler Hollywood has sued the city of Fresno, contending in a federal civil rights lawsuit that city officials violated the business’s free-speech rights by stopping it from opening an adult-themed store inside the former Silver Dollar Hofbrau after it signed a 10-year lease.

City officials targeted Hustler’s proposed business “by taking action specifically designed to preclude (it) from opening and operating its desired establishment,” says the lawsuit, filed this month in U.S. District Court in Fresno. “In their rush to censor the plaintiff and to mute the plaintiff’s speech, defendants have unconstitutionally prevented the plaintiff’s ability to operate a business in the city of Fresno.”

Hustler’s lawyers want a judge to declare unconstitutional the city’s municipal code section that prevented Hustler from opening the store. They also want the court to stop the city from enforcing it.

Hustler is seeking unspecified damages for loss of profits, loss of goodwill, attorney fees, insurance costs, expenses associated with retaining an architect and consultant, and “deprivation of constitutional rights.”

The Bee first reported in May 2016 that Hustler was trying to open a store in Fresno. Soon after The Bee story ran, the city appeared to be caught flat-footed.

When asked about the lawsuit, city spokesman Mark Standriff said: “As a policy, we refrain from discussing any pending or present litigation.”

Hustler is being represented by Paul J. Cambria Jr. of the law firm of Lipsitz Green Scime Cambria LLP in Buffalo, N.Y. Cambria’s website describes him as one of the nation’s preeminent attorneys in criminal law, constitutional law, First Amendment law, and zoning and land use. He will be assisted by attorneys Erin E. McCampbell and Emily H. O’Reilly from the same firm.

The city has hired Betts & Rubin of Fresno.

Hustler Hollywood has about 20 stores nationwide, including in Bakersfield, San Jose and Hollywood.

The lawsuit details the allegations:

In September 2015, Hustler began exploring whether to open a store at 333 E. Shaw Ave., the site of the former Silver Dollar Hofbrau, a Fresno restaurant that closed in 2015 after operating for three decades. The site has 5,576 square feet and is zoned C-3, or for a regional shopping center district.

To ensure the proposed business was in compliance with the Municipal Code, Hustler’s counsel filed a zoning inquiry application and paid the required $182 fee with the city’s Development and Resource Management Department in November 2015. In its application, Hustler says “the store mainly sells lingerie, gag gifts, marital aides, and brand name souvenirs. However, there is a minimal amount of ‘adult’ instruments offered” or items similar to what is sold at Spencer’s, a retail store in the Fashion Fair Mall that carries novelty items and apparel, plus a selection of adult products.

Because Hustler wanted to nail down a lease, its counsel asked how long it would take for the city to respond to the application. The lawsuit says a city official said it would take seven to 10 business days. When no response came after 10 days, Hustler’s counsel reiterated its urgency to the city to know whether the proposed business was classified as an adult novelty store.

The lawsuit says the city used the July 2015 Municipal Code to define “adult novelty store.” In the definition was a section that said: “Should the display area of the entire store contain 25% or more of adult devices, instruments and paraphernalia, it will be considered an adult novelty store” and it would be prohibited from operating inside the Silver Dollar, the lawsuit says.

Believing the proposed Hustler business would not be classified as adult novelty as defined by the city, Hustler immediately moved forward with its plans to open its business by letting the owner of the Silver Dollar know of its intent to rent the property.

But the next day, the city changed how it would classify the proposed store to Hustler’s detriment, the lawsuit says.

First, the city enacted a December 2015 Municipal Code that redefined “adult bookstore.” The new code section specifically identified the kind of merchandise that would be deemed adult material and implemented stringent rules on displaying it. The city did this without notifying Hustler officials, the lawsuit says.

In April, Hustler signed a 10-year lease to rent the old Silver Dollar.

But when Hustler filed a zoning application, seeking to operate its proposed business, city officials said it would be regulated as an “adult bookstore” with its stringent rules, the lawsuit says.

On June 20, the city denied the zoning application on the grounds “that the application lacked sufficient information to determine use.” The city wanted a list of specific items to be sold and a detailed floor plan.

The lawsuit says Hustler resubmitted its application the next month that complied with the city’s revised definition of “adult bookstore” as set forth in the December 2015 Municipal Code. But the city never acted on the revised application, the lawsuit says, causing Hustler to suffer financial harm because it had signed a 10-year lease, engaged an architect, a consultant and contractors to renovate the Silver Dollar, and purchased store fixtures, the lawsuit says.

This story was originally published February 23, 2017 at 12:57 PM with the headline "Hustler sues Fresno, says city changed rules to stop it from opening adult store."