Stores selling “adult” magazines have no state constitutional right to stay open all night, the Arizona Court of Appeals ruled Tuesday.
In a unanimous decision, the three-judge panel reinstated criminal charges against the owners of two Phoenix stores. They are accused of violating a 1998 state law which requires “sexually oriented businesses” to close each night at 1 a.m. and not reopen until 8 a.m. Monday through Saturday, and noon on Sunday.
The judges said the Legislature cannot constitutionally censor the message, but lawmakers have a legal right to impose restrictions to deal with the “secondary effects” of the stores ranging from drug use and prostitution to littering.
Tuesday’s ruling is unlikely to be the last word. That’s because a separate division of the Court of Appeals ruled five years ago in a case against Tucson’s Empress Theater that those types of restrictions are unconstitutional.
“I think the (state) Supreme Court will have to take it,” said Peter Gentala, counsel for the Center for Arizona Policy, an organization that filed a brief in support of upholding the law.
State and federal courts have consistently ruled that government can regulate hours of operation for places that offer nude dancing. And federal courts have concluded there are no First Amendment barriers to similar restrictions on places that sell books and magazines.
But the owners of the two stores argued that Arizona’s own constitution provides broader protections to book and magazine sellers.
Richard Hertzberg, the attorney defending the two shop owners, did not immediately return a call seeking comment. His clients are Hubert A. Stummer who owns The Adult Shoppe and Dennis A. Lumm, owner of Just for Fun.