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Arizona Supreme Court Rules that a Lower Court must reexamine State Law Restricting Hours for Sexual
30/10/2008 - By

The Arizona Supreme Court ruled last week that a lower court must re-examine a state law restricting hours for sexually oriented businesses in a case involving two Phoenix adult bookstores.

The state legislature passed Arizona Revised Statute 13-1422 in 1998 to combat the alleged secondary effects of adult businesses, including "increased prostitution and sexually oriented litter." The law prohibits adult clubs from operating between the hours of 1 a.m. and 8 a.m. Monday - Saturday, and 1
a.m. and noon on Sundays.

Hubert August Stummer of The Adult Shoppe and Dennis Allen Lumm of Just for Fun were each charged with misdemeanors in October 2006 for selling adult magazines during early morning hours.

The bookstore owners won an appeal to dismiss the charges in Maricopa County Superior Court in 2007. Their appeal cited the 2002 ruling in Empress Adult Video & Bookstore v. City of Tucson, which found the state law unconstitutional as applied to businesses that do not feature live entertainment.

With the support of the right-wing Center for Arizona Policy, a CCV affiliate, which helped draft the law, the state appealed in November to a different panel of judges who reversed the trial court's dismissal of the charges. The Arizona Supreme Court granted the store owners' petition to review the case in April. In its unanimous decision this week, the high court found that the constitutionality of the law cannot be weighed according to the arguments used by either side in the case.

Vice Chief Justice Rebecca White Berch wrote that the "strict scrutiny" applied to the statute in the Empress case could undermine a legitimate interest in curbing secondary effects. At the same time, the state's use of a broader federal precedent to defend the law infringes on the free speech rights written in the Arizona Constitution.

"Because Arizona's speech provision safeguards the right to speak freely on all topics, our test must more closely scrutinize laws that single out speech for regulation based on its disfavored content,"Berch wrote. As a result, the court has outlined a new test for the lower court to use in judging the case.

The first phase of the test requires proof that the law was "designed to suppress secondary effects, not to suppress the speech itself." The second phase is a three-pronged examination in which the state must show “evidence of the significance of the infringement of speech, the effectiveness of the statute in reducing negative secondary effects, the nexus between the ends sought and the means employed, or the availability of alternative measures."

While the state has already met its burden in the first phase, Berch warned that the state could have a difficult time meeting the requirements of the second. "The existence of mere litter is not by itself sufficiently important to permit a substantial restriction of speech," Berch wrote. "The record is devoid of evidence that secondary effects are greater during the hours of forced closure." Berch went on to note that the record in this case only shows two pieces of evidence on secondary effects. A Phoenix city official testified that the city could not show any correlation between hours of operation and crime statistics. And a Colorado study found fewer police calls or incidents arose from a particular adult business during late-night hours than at other times in the day. No date has been set for the next hearing on the case in Maricopa County.