PHILADELPHIA – The proprietor of an adult store in Upper Merion Township is who sought to have a declaratory judgment issued that the township’s zoning codes and ordinances were unconstitutional, and thus, violated their rights under the First and Fourteenth Amendments to the U.S. Constitution, has settled their case.
ES IV, LLC first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 10 versus Upper Merion Township Board of Supervisors and Upper Merion Township Code Enforcement Department. All parties are of King of Prussia.
“In 2019, plaintiff desired to open a general retail store located within the Township at 143 South Gulph Road which would offer patrons general merchandise, such as smoke-related products and novelty t-shirts, as well as a small portion of sexually explicit, non-obscene material, commonly referred to as ‘adult material’ At that time, the term ‘Adult Store’ was not part of the Township Ordinance. Instead, the Township Ordinance contained the term ‘Adult Bookstore or Adult Video Store,” the suit said.
“A commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration one or more of the following: 1) Books, magazines, periodicals or other printed matter or photographs, films, motion picture, videocassettes or video reproductions, slides or other visual representations which depict or describe specific sexual activities or specified anatomical areas. 2) Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.”
“Because the term ‘principal business purpose’ was vague, and a zoning officer’s “standardless interpretation of that vague term could wrongly lead to designation of the Proposed Store as an ‘Adult Bookstore or Adult Video Store,’ which would then trigger application of the onerous regulations for ‘Sexually Oriented Businesses’ to the proposed store, Plaintiff sought clarity from the Township as to its interpretation and application of that vague Ordinance, specifically, what constituted ‘principal.”
What followed was a year-and-a-half-long application and appeal situation, resulting in the following:
“On April 15, 2021, the Township modified the Township Ordinance to remove the term at issue concerning plaintiff’s applications and appeal – ‘Adult Bookstore or Adult Video Store’ – which contained the term ‘principal business purpose’ – and replaced that term with the new definition of ‘Adult Store’ – which triggered regulation by sale of one book or periodical with one picture depicting sexual activity or anatomical parts. The new definition of ‘Adult Store’ is even more problematic from a constitutional perspective than the original term ‘Adult Bookstore or Adult Video Store,” the suit stated.
“Based on the plain text of the definition of ‘Adult Store,’ a business can trigger the onerous regulations for ‘Sexually Oriented Businesses’ upon carrying, selling, or displaying as little as ‘one or more’ items that ‘depict or describe specified sexual activities or specified anatomical areas,’ in other words, a medical book or non-medical book or magazine containing one picture of any of the prohibited depictions…or upon carrying, selling or displaying ‘one or more…instruments, devices or paraphernalia which as designed for use in connection with specified sexual activities,’ such as condoms or lubrications.”
“Consequently, under the new definition of ‘Adult Store,’ carrying, selling or displaying just ‘one or more’ of the items discussed above, commonly referred to as ‘sexually explicit non-obscene material,’ or ‘adult material,’ triggers the onerous regulations for ‘Sexually Oriented Businesses,’ whereas, previously, under the definition of ‘Adult Bookstore or Adult Video Store,’ a retailer would not be ensnared in the onerous regulations for ‘Sexually Oriented Businesses’ unless the retailer engaged in carrying, selling or displaying ‘adult material’ as one of its ‘principal business purposes.”
The suit argued the defendants’ qualifiers would also apply to other businesses, such as “mainstream bookstores, mainstream video stores, grocery stores, big box stores, and pharmacies, all of which sell ‘adult material,’ or such items as textbooks, books, DVDs and magazines that contain the subject depictions,” yet are not subject to the same “onerous” regulations.
“Consequently, plaintiff has suffered a content-based violation of the First Amendment at the hands of defendants. Plaintiff has been unable to exercise its First Amendment rights. Plaintiff has been subjected to a deprivation of its rights under the Equal Protection Clause of the Fourteenth Amendment. Each day that the new definition of the term ‘Adult Store’ remains in effect, plaintiff is deprived of its First and Fourteenth Amendment rights,” the suit added.
“Additionally, plaintiff has signed a 10-year commercial lease, with options for renewal and options to lease additional space, but has been unable to commence operations as fully envisioned as the Proposed Store. As a result, plaintiff has suffered economic harm and continues to suffer ongoing economic harm each day that the new definition of ‘Adult Store’ remains in effect.”
In a Sept. 29 joint status report filed by counsel for all parties, it was revealed that a settlement is in the works and has been approved by members of the Upper Merion Township government.
“Between June 28 and Sept. 28, 2022, the parties engaged in settlement discussions and exchanged several draft settlement agreements. On Sept. 28, 2022, the Township Board of Supervisors voted in a duly-advertised public meeting to execute a settlement agreement containing terms agreed upon by all parties. The settlement agreement will be fully executed by all parties in the coming days, after which this matter will be discontinued,” the status report said.
UPDATE
On Oct. 11, a docket filing announced that all parties concerned settled the case. Terms of the settlement were not disclosed.
“It is hereby stipulated and agreed, by and between the undersigned counsel for plaintiff ES IV, LLC and counsel for defendants Upper Merion Township Board of Supervisors and Upper Township Code Enforcement Department, that the above-captioned action and all claims of all parties are dismissed with prejudice and without costs,” the joint stipulation of settlement read.
The very same day, U.S. District Court for the Eastern District of Pennsylvania Judge Gene E.K. Pratter approved the stipulation as directed and ordered the case closed.
The plaintiff was represented by Pamela Tobin of Kaplin Stewart, in Philadelphia.
The defendants were represented by Michael G. Crotty and Brigitte M. Meyer of Siana Law, in Chester Springs.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-02303
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com