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Z-8681 ApplicationT co co Oa) E Q o o L° Z U U 0 o o o J � J � a E N O � L o D Y m Q oca cu� J N C6 7 ~ I "O cn o 2 0 C o Zto , O+� U Q atp a)U c C) �' � cn cu �.- O N +N' fn > N Q m W i J p }N CU N N O v� E o Q o LO Z E o Q o U N E o Q O N LO N O C Y U a� C6 0 Y U N A T- C'7 CM ti N CD O Quattlebaum, Grooms, Tull e; Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY 111 Center Street Suite 1900 Little Rock, Arkansas 72201 (501) 379-1700 • (501) 379-1701 —Fax Michael N. Shannon mshannon@ggtb.com Licensed in Arkansas, Missouri and Kansas June 28, 2011 City of Little Rock Board of Directors c/o Mr. Bruce Moore, City Manager City Hall, Room 203 500 West Markham Street Little Rock, AR 72201 T I 1 Direct Dial 501-379-1716 Direct Fax 501-379-3816 Via Hand Delivery City of Little Rock Board of Zoning Adjustment Via Hand Deliver c/o Mr. Dana Carney 723 West Markham Street Little Rock, AR 72201 Re: Appeal from denial of business license application of Stephen Norman, d/b/a Adam & Eve stores Dear Mr. Moore and Mr. Carney, We represent Stephen Norman in the above -referenced matter. Please accept this letter as notice of appeal from the City of Little Rock's denial of Stephen Norman's, d/b/a Adam & Eve stores, application for a business license. Our client, Mr. Norman, seeks to pursue his available legal rights and remedies in this matter and, accordingly, we hereby request a hearing at the earliest possible date before the appropriate body of the City, whether that is the Board of Directors or the Board of Zoning Adjustment. The factual circumstances underlying this matter are better set forth in a May 16, 20I I letter we sent on Mr.. Norman's behalf to each of the City Directors, an example of which is enclosed for your reference. In sum, Mr. Norman requested a business license to open a franchise location of Adam & Eve stores, an upscale specialty boutique retailer. The City, through officials in its Zoning Department, has denied Mr. Norman's application for a business license on the ground that his store will constitute a "sexually oriented business" under § 17-211, et seq., of the City. Code, and, therefore, violates the zoning ordinance at the intended location. After we sent the enclosed May 16, 2011 letter, Mr. Norman filed a renewed and clarified application for a business license on May 31, 2011. At this date, this application remains Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 2 pending before the City's Zoning Department. Tom Carpenter instructed us via a June 27 email to Mike Shannon, however, to move forward with this notice of appeal in order to be put on the agenda for the July 25 meeting of the Board of Zoning Adjustment. A copy of Mr. Carpenter's email to Mr. Shannon is enclosed with this letter. As set forth in the May 16, 2011 letter and in the affidavit from Mr. Norman that accompanied his renewed application, we believe the application for a business license was wrongfully denied. In an attempt to follow proper procedure and exhaust our administrative remedies before pursuing further legal recourse, if necessary, we now seek a final determination from the appropriate administrative and/or quasi-judicial body or subdivision of the City. It is unclear, however, to whom we should address our appeal. Section 36-69 of the City Code provides that the Board of Zoning Adjustment is authorized "to hear appeals from the decision of the administrative officers in respect to the enforcement and application of [the zoning] chapter; and may affirm or reverse, in whole or in part, said decision of the administrative officer." As the denial of Mr. Norman's business license appears to have been a decision made by administrative officials in the City's Zoning Department, we believe the Board of Zoning Adjustment may be the proper forum to hear our appeal. We are also aware, however, that.City Code Section 17- 211, et seq.,, regulating the operation and placement of sexually oriented businesses, is an independent section that technically lies outside of the Zoning chapter of the City Code. Accordingly, the City Code does not give clear direction on how to properly appeal the denial of an application for a business license, pursuant to Section 17-211, et seq. We ask that the City clarify the process of appeal and render a decision as to which body is the appropriate forum to hear our appeal. ApplicationlCouer Letter Lor Heating Before the Board ofZoning Ad usiment Presuming that the Board of Zoning Adjustment is the proper forum for this matter, please accept this letter as the required "cover letter" detailing our client's proposed business use and justification under the Zoning Ordinance pursuant to the Application for Non -Residential Zoning Variance. We submit this letter and all accompanying materials as part of our appeal from the decision of the administrative officers in respect to the enforcement and application of the Zoning Ordinance and of the "sexually oriented business" ordinance, codified at Section 17- 211, et seq. We submit this cover letter and application materials in advance of the June 28, 2011, filing deadline in order to be considered for the agenda of the July 25, 2011, meeting of the Board of Zoning Adjustment. The Application for Non -Residential Zoning Variance lists several requirements that must accompany the application to the Board of Zoning Adjustment. Where possible, we have in good faith complied with the necessary requirements. Due to the unique nature of this appeal, however, we do not believe that compliance with all of the requirements is feasible or even necessary. Of course, we are not asking for a "variance" from any zoning or other regulation. Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 3 Rather, we believe that the decision of the administrative officers that Mr. Norman's business should be classified as a "sexually oriented business" is erroneous under the facts, the language of the ordinance, and the City's historical interpretation of the ordinance. Accordingly, the applicable requirements for Mr. Norman's appeal are provided, as follows: • A cover letter detailing the applicant's proposal and providing his justification and reasons for requesting a variance from the requirements of the Zoning Ordinance — Please accept this letter as the required cover letter • Six (6) copies of a site plan and survey, prepared by a professional surveyor or professional engineer, which shows all existing and proposed improvements properly dimensioned and labeled — Not Applicable. Mr. Norman is appealing the denial of his business license application and not requesting an ordinary zoning variance for physical changes or improvements to the property in question. A site plan and surveys are, therefore, not necessary or helpful to the Board's adjudication of this matter • Payment of a filing fee no later than the published docket closing date — Enclosed • _ The Application for Zoning Variance — Enclosed Further, the Application for Non -Residential Zoning Variance notes that, upon application, there are several further requirements and steps necessary for the zoning variance process —a notice .form to be circulated to neighboring property owners; an affidavit and supporting exhibits (mailing receipts, certified abstract list of property owners, etc.); and, a sign to be posted on the applicant's property indicating that a zoning variance is being considered. As set forth above, we do not believe these elements are applicable to Mr. Norman's appeal because he is not requesting a variance from any ordinance; rather, he is seeking a determination that the sexually oriented business ordinance does not apply. However, if the City believes such requirements must be fulfilled, please explain how the City believes Mr: Norman should comply with that process. Again, please accept this letter and accompanying materials as Mr. Norman's appeal from the decision by the administrative officials in the City's Zoning Department to' deny his application for a business license. By this letter and application, we appeal the decision to the Board of Zoning Adjustment and request that this matter be included on the agenda for the July 25, 2011 meeting of the Board of Zoning Adjustment. Alternatively, if the City of Little Rock Board of Directors is a more proper forum to address this matter, we request that we be heard before the Board of Directors at its next available meeting. Please advise accordingly at your earliest convenience, as time is of the essence in this appellate process. Thank you for your time and consideration., If you have question or would like to discuss Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 4 this matter, or if we can provide any further material to be in compliance with the necessary procedures to appeal this matter, please contact me at 501.379.1716 or mshannon a ggtb.com. Respectfully, QUATTLEBAUM, GROOMS TULL & BURROW, PLLC Michael N-S annon MNS/lad Enclosures cc: Mr. Tom Carpenter, Esq. (via hand delivery) City/ of Little Rock Department of Planning and Development Planning 723 West Markham Street Zoning and Little Rock, Arkansas 72201-1334 Subdivision (501) 371-4790 Fax: (501) 399-3435 or 371-6863 Quattlebaum. Grooms, Tull & Burrow _ Michael N. Shannon 111 Center Street, Suite 1900 Little Rock, AR 72201 Date: July 27. 2011 Dear Mr. Shannon: Re: Case No. Z-8681 Location: 1510 S. University Ave. Issue: Administrative Appeal This is to advise you that in connection with your application case no. Z-8681. the following action was taken by the Board of Adjustment at its meeting on July 25, 2011 . (a) Approved the application as filed. (b) Approved the application with conditions. (c) Denied the application. (d) Deferred the application to the Meeting. (e) Withdrew the application. (f) See attached Board of Adjustment minute record for conditions. (g) X Other: Dismissed the application due to determined lack of 'urisdiction over the requested anneal. According to the City's Zoning Ordinance Section 36-70: "Appeals from the decision of the Board of Adjustment shall be filed with the appropriate court of jurisdiction. This filing must occur within thirty (30) calendar days of the action by the Board of Adjustment." If you have any questions, please call me at 371-4792. Sincerely, Montt Moore, Zoning and Code Enforcement Administrator Department of Planning and Development MM/vh Revised 07/2008 PERMIT REFUND FORM DATE: 4 21 representing ti.c '�� . �ti- -��y -� T'a �- request a refund for number Type of Itetund issued to job address - , dated for the amount of $ My reason for requesting this refund is: 4 Signature REFUND TO: QU oF Address: A44of Az .Shy ��.. S •tee �9aE� City, State, Zip: 4-1. �-- /,z c'4- Project Address: -z_z-e *FOR OFFICE USE ONLY* Permit Number: - 9 � � .4',� of Refund �L— Typ Amount Charged:$ 0, o v Less Administrative Cost: $_ =t-G= Total Refund: $ ' 0 F Accou r�iu�T�ber: Approved By: City of Little Rock Planning and Development Filing Fees Date �' - > 20 I J Annexation $ Board of Adjustment Cond Use Permit/T UP $ Final Plat $ Planned Unit Dev $ Preliminaiy Plat Special Use Permit $ Rezoning $ Site Plans $ Sheet Name Change $ Street Name Signs Number at ea $ Public Hearing Signs Number--at--ea $ Total File No"C Location Applicant L'�{,L�,.��f•��je'-c�, ��-� �-ss-C— I �'4k r— ��y�a �-,� Bys 0Y6Y INBOUND NOTIFICATION : FAX RECEIVED SUCCESSFULLY ** TIME RECEIVED REMOTEfCSID DURATION PAGES STATUS rune 28, 2011 2:56:45 PM CDT 8706194869 38 1 Received 06/28/2011 02:58 8706194869 711 LIQUOR PAGE 01/01 I a c 03/01/10 APPLICATION FOR ZONING VARUNCR CASE FILE NO. Z OF ADJUSTMENT MEETING DATE DOCKET FOR: _. 20---AT.. PM. liACat in is hereby made to the Little Rode Board of Adjustment pursuant to Act 1$6 of 1957, Actti of as as ammicd, and Chaptrr 36 of the Liuln Rock, Ark. Rev. Code (1988), as amended, roquostmg a, the following described property: _ w R S- 6SL t,.7t�1�-� i�►tG. • - L - .Z9' AA� r t, � cation): _ .... �� i�o �ri ri r�4 CV yt' pz< ( eral AI. SCRWTION: t tot 1s propr.rty 1s vvstcd in! I t\ • w— 5 ect p mpl;;rty is cvrrentlyzo=d: LT vswct and its WOWS tiro requmted; (1) The provisions of Section of the Little F",k Code of Ordinances twperne (2) The provisions of Section of the Little Rock Code of Ordivancea to perreft (3) Tho provisions of Section _ of the Little Rock Code of Ordinauctrs to permit: cat U m of PrOpGrt ,: Use of Property: %--C"- P Posed c al ry are no private resuictious pertaixft to the proposod ;1Wdeveloptnant of this property. appli uant feels that strict enforcement of these provisions would bo at hardship and is requesting vniance(s) ix s c for the fbUuwing rcaun(s): to SL-.a 1 i It y agreed that the required filing f will be 'd immediately after filing and accepUmce of this a i=k n,n j A 1&&Ul(awner or authorized agenb.- +S3w ta]ku Address) ekv,0 - (Telephone -Bus. and Hotne) OF ADJUSTMENT ditto of approval: 21-2 5 �aturj of Board Secretary or Authorized Agent P. G e» $ Stamp Here) j �(Collectors �-t- 'A. X� W.- - a. fyy,,,� i wAi� �ZL�tt J7ur -E"k Lor;+kaN //r Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY 111 Center Street Suite 1900 Little Rock, Arkansas 72201 (501) 379-1700 • (501) 379-1701 —Fax Michael N. Shannon mshannon@ggtb.com Licensed in Arkansas, Missouri and Kansas June 28, 2011 City of Little Rock Board of Directors c/o Mr. Bruce Moore, City Manager City Hall, Room 203 500 West Markham Street Little Rock, AR 72201 Direct Dial 501-379-1716 Direct Fax 501-379-3816 Via Hand Delivery City of Little Rock Board of Zoning Adjustment Via Hann Deliver c/o Mr. Dana Carney 723 West Markham Street Little Rock, AR 72201 Re: Appeal from denial of business license application of Stephen Norman, d/b/a Adam & Eve stores Dear Mr. Moore and Mr. Carney, We represent Stephen Norman in the above -referenced matter. Please accept this letter as notice of appeal from the City of Little Rock's denial of Stephen Norman's, d/b/a Adam & Eve stores, application for a business license. Our client, Mr. Norman, seeks to pursue his available legal rights and remedies in this matter and, accordingly, we hereby request a hearing at the earliest possible date before the appropriate body of the City, whether that is the Board of Directors or the Board of Zoning Adjustment. The factual circumstances underlying this matter are better set forth in a May 16, 2011 letter we sent on Mr. Norman's behalf to each of the City Directors, an example of which is enclosed for your reference. In sum, Mr. Norman requested a business license to open a franchise location of Adam & Eve stores, an upscale specialty boutique retailer. The City, through officials in its Zoning Department, has denied Mr. Norman's application for a business license on the ground that his store will constitute a "sexually oriented business" under § 17-211, et seq., of the City Code, and, therefore, violates the zoning ordinance at the intended location. After we sent the enclosed May 16, 2011 letter, Mr. Norman filed a renewed and clarified application for a business license on May 31, 2011. At this date, this application remains Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 2 pending before the City's Zoning Department. Tom Carpenter instructed us via a June 27 email to Mike Shannon, however, to move forward with this notice of appeal in order to be put on the agenda for the July 25 meeting of the Board of Zoning Adjustment. A copy of Mr. Carpenter's email to Mr. Shannon is enclosed with this letter. As set forth in the May 16, 2011 letter and in the affidavit from Mr. Norman that accompanied his renewed application, we believe the application for a business license was wrongfully denied. In an attempt to follow proper procedure and exhaust our administrative remedies before pursuing further legal recourse, if necessary, we now seek a final determination from the appropriate administrative and/or quasi-judicial body or subdivision of the City. It is unclear, however, to whom we should address our appeal. Section 36-69 of the City Code provides that the Board of Zoning Adjustment is authorized "to hear appeals from the decision of the administrative officers in respect to the enforcement and application of [the zoning] chapter; and may affirm or reverse, in whole or in part, said decision of the administrative officer." As the denial of Mr. Norman's business license appears to have been a decision made by administrative officials in the City's Zoning Department, we believe the Board of Zoning Adjustment may be the proper forum to hear our appeal. We are also aware, however, that City Code Section 17- 211, et seq., regulating the operation and placement of sexually oriented businesses, is an independent section that technically lies outside of the Zoning chapter of the City Code. Accordingly, the City Code does not give clear direction on how to properly appeal the denial of an application for a business license, pursuant to Section 17-211, et seq. We ask that the City clarify the process of appeal and render a decision as to which body is the appropriate forum to hear our appeal. A licatian/Cover Better for Hearin Before the Board of Zoning Adjustment Presuming that the Board of Zoning Adjustment is the proper forum for this matter, please accept this letter as the required "cover letter" detailing our client's proposed business use and justification under the Zoning Ordinance pursuant to the Application for Non -Residential Zoning Variance. We submit this letter and all accompanying materials as part of our appeal from the decision of the administrative officers in respect to the enforcement and application of the Zoning Ordinance and of the "sexually oriented business" ordinance, codified at Section 17- 211, et seq. We submit this cover letter and application materials in advance of the June 28, 2011, filing deadline in order to be considered for the agenda of the July 25, 2011, meeting of the Board of Zoning Adjustment. The Application for Non -Residential Zoning Variance lists several requirements that must accompany the application to the Board of Zoning Adjustment. Where possible, we have in good faith complied with the necessary requirements. Due to the unique nature of this appeal, however, we do not believe that compliance with all of the requirements is feasible or even necessary. Of course, we are not asking for a "variance" from any zoning or other regulation. Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 3 Rather, we believe that the decision of the administrative officers that Mr. Norman's business should be classified as a "sexually oriented business" is erroneous under the facts, the language of the ordinance, and the City's historical interpretation of the ordinance. Accordingly, the applicable requirements for Mr. Norman's appeal are provided, as follows: ■ A cover letter detailing the applicant's proposal and providing his justification and reasons for requesting a variance from the requirements of the Zoning Ordinance — Please accept this letter as the required cover letter • Six (6) copies of a site plan and survey, prepared by a professional surveyor or professional engineer, which shows all existing and proposed improvements properly dimensioned and labeled — Not Applicable. Mr. Norman is appealing the denial of his business license application and not requesting an ordinary zoning variance for physical changes or improvements to the property in question. A site plan and surveys are, therefore, not necessary or helpful to the Board's adjudication of this matter Payment of a filing fee no later than the published docket closing date — Enclosed • The Application for Zoning Variance — Enclosed Further, the Application for Non -Residential Zoning Variance notes that, upon application, there are several further requirements and steps necessary for the zoning variance process —a notice form to be circulated to neighboring property owners; an affidavit and supporting exhibits (mailing receipts, certified abstract list of property owners, etc.); and, a sign to be posted on the applicant's property indicating that a zoning variance is being considered. As set forth above, we do not believe these elements are applicable to Mr. Norman's appeal because he is not requesting a variance from any ordinance; rather, he is seeking a determination that the sexually oriented business ordinance does not apply. However, if the City believes such requirements must be fulfilled, please explain how the City believes Mr. Norman should comply with that process. Again, please accept this letter and accompanying materials as Mr. Norman's appeal from the decision by the administrative officials in the City's Zoning Department to deny his application for a business license. By this letter and application, we appeal the decision to the Board of Zoning Adjustment and request that this matter be included on the agenda for the July 25, 2011 meeting of the Board of Zoning Adjustment. Alternatively, if the City of Little Rock Board of Directors is a more proper forum to address this matter, we request that we be heard before the Board of Directors at its next available meeting. Please advise accordingly at your earliest convenience, as time is of the essence in this appellate process. Thank you for your time and consideration. If you have question or would like to discuss Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 4 this matter, or if we can provide any further material to be in compliance with the necessary procedures to appeal this matter, please contact me at 501.379.1716 or mshannon@qgtb.com. Respectfully, QUATTLEBAUM, GROOMS TULL & BURROW, PLLC Mic-hael - : sfI? neon MNS/lad Enclosures cc: Mr. Tom Carpenter, Esq. (via hand delivery) Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY 111 Center Street Suite 1900 Little Rock, Arkansas 72201 (501) 379-1700 • (501) 379-1701— Fax Michael N. Shannon mshannon@ggtb.com Licensed in Arkansas, Missouri and Kansas June 28, 2011 City of Little Rock Board of Directors c/o Mr. Bruce Moore, City Manager City Hall, Room 203 500 West Markham Street Little Rock, AR 72201 Direct Dial 501-379-1716 Direct Fax 501-379-3816 Via 11and Delivery City of Little Rock Board of Zoning Adjustment Via Hand Delivepy c/o Mr. Dana Carney 723 West Markham Street Little Rock, AR 72201 Re: Appeal from denial of business license application of Stephen Norman, d1b/a Adam & Eve stores Dear Mr. Moore and Mr. Carney, We represent Stephen Norman in the above -referenced matter. Please accept this letter as notice of appeal from the City of Little Rock's denial of Stephen Norman's, d/b/a Adam & Eve stores, application for a business license. Our client, Mr. Norman, seeks to pursue his available legal rights and remedies in this matter and, accordingly, we hereby request a hearing at the earliest possible date before the appropriate body of the City, whether that is the Board of Directors or the Board of Zoning Adjustment. The factual circumstances underlying this matter are better set forth in a May 16, 2011 letter we sent on Mr. Norman's behalf to each of the City Directors, an example of which is enclosed for your reference. In sum, Mr. Norman requested a business license to open a franchise location of Adam & Eve stores, an upscale specialty boutique retailer. The City, through officials in its Zoning Department, has denied Mr. Norman's application for a business license on the ground that his store will constitute a "sexually oriented business" under § 17-211, et seq., of the City Code, and, therefore, violates the zoning ordinance at the intended location. After we sent the enclosed May 16, 2011 letter, Mr. Norman filed a renewed and clarified application for a business license on May 31, 2011. At this date, this application remains Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 2 pending before the City's Zoning Department. Tom Carpenter instructed us via a June 27 email to Mike Shannon, however, to move forward with this notice of appeal in order to be put on the agenda for the July 25 meeting of the Board of Zoning Adjustment. A copy of Mr. Carpenter's email to Mr. Shannon is enclosed with this letter. As set forth in the May 16, 2011 letter and in the affidavit from Mr. Norman that accompanied his renewed application, we believe the application for a business license was wrongfully denied. In an attempt to follow proper procedure and exhaust our administrative remedies before pursuing further legal recourse, if necessary, we now seek a final determination from the appropriate administrative and/or quasi-judicial body or subdivision of the City. It is unclear, however, to whom we should address our appeal. Section 36-69 of the City Code provides that the Board of Zoning Adjustment is authorized "to hear appeals from the decision of the administrative officers in respect to the enforcement and application of [the zoning] chapter; and may affirm or reverse, in whole or in part, said decision of the administrative officer." As the denial of Mr. Norman's business license appears to have been a decision made by administrative officials in the City's Zoning Department, we believe the Board of Zoning Adjustment may be the proper forum to hear our appeal. We are also aware, however, that City Code Section 17- 211, et seq., regulating the operation and placement of sexually oriented businesses, is an independent section that technically lies outside of the Zoning chapter of the City Code. Accordingly, the City Code does not give clear direction on how to properly appeal the denial of an application for a business license, pursuant to Section 17-211, et seq. We ask that the City clarify the process of appeal and render a decision as to which body is the appropriate forum to hear our appeal. ,ApplicationlCover Letter for Hearing Be ore the Board of Zoning Adjustment Presuming that the Board of Zoning Adjustment is the proper forum for this matter, please accept this letter as the required "cover letter" detailing our client's proposed business use and justification under the Zoning Ordinance pursuant to the Application for Non -Residential Zoning Variance. We submit this letter and all accompanying materials as part of our appeal from the decision of the administrative officers in respect to the enforcement and application of the Zoning Ordinance and of the "sexually oriented business" ordinance, codified at Section 17- 211, et seq. We submit this cover letter and application materials in advance of the June 28, 2011, filing deadline in order to be considered for the agenda of the July 25, 2011, meeting of the Board of Zoning Adjustment. The Application for Non -Residential Zoning Variance lists several requirements that must accompany the application to the Board of Zoning Adjustment. Where possible, we have in good faith complied with the necessary requirements. Due to the unique nature of this appeal, however, we do not believe that compliance with all of the requirements is feasible or even necessary. Of course, we are not asking for a "variance" from any zoning or other regulation. Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 3 Rather, we believe that the decision of the administrative officers that Mr. Norman's business should be classified as a "sexually oriented business" is erroneous under the facts, the language of the ordinance, and the City's historical interpretation of the ordinance. Accordingly, the applicable requirements for Mr. Norman's appeal are provided, as follows: ■ A cover letter detailing the applicant's proposal and providing his justification and reasons for requesting a variance from the requirements of the Zoning Ordinance — Please accept this letter as the required cover letter • Six (6) copies of a site plan and survey, prepared by a professional surveyor or professional engineer, which shows all existing and proposed improvements properly dimensioned and labeled — Not Applicable. Mr. Norman is appealing the denial of his business license application and not requesting an ordinary zoning variance for physical changes or improvements to the property in question. A site plan and surveys are, therefore, not necessary or helpful to the Board's adjudication of this matter ■ Payment of a filing fee no later than the published docket closing date — Enclosed ■ The Application for Zoning Variance — Enclosed Further, the Application for Non -Residential Zoning Variance notes that, upon application, there are several further requirements and steps necessary for the zoning variance process —a notice form to be circulated to neighboring property owners; an affidavit and supporting exhibits (mailing receipts, certified abstract list of property owners, etc.); and, a sign to be posted on the applicant's property indicating that a zoning variance is being considered. As set forth above, we do not believe these elements are applicable to Mr. Norman's appeal because he is not requesting a variance from any ordinance; rather, he is seeking a determination that the sexually oriented business ordinance does not apply. However, if the City believes such requirements must be fulfilled, please explain how the City believes Mr. Norman should comply with that process. Again, please accept this letter and accompanying materials as Mr. Norman's appeal from the decision by the administrative officials in the City's Zoning Department to deny his application for a business license. By this letter and application, we appeal the decision to the Board of Zoning Adjustment and request that this matter be included on the agenda for the July 25, 2011 meeting of the Board of Zoning Adjustment. Alternatively, if the City of Little Rock Board of Directors is a more proper forum to address this matter, we request that we be heard before the Board of Directors at its next available meeting. Please advise accordingly at your earliest convenience, as time is of the essence in this appellate process. Thank you for your time and consideration. If you have question or would like to discuss Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 4 this matter, or if we can provide any further material to be in compliance with the necessary procedures to appeal this matter, please contact me at 501.379,1716 or mshannon@qgtb.com. Respectfully, QUATTLEBAUM, GROOMS TULL & BURROW, PLLC t chael annon MNS/lad Enclosures cc: Mr. Tom Carpenter, Esq. (via hand delivery) Application for Zoning Variance June 27 email from Tom Carpenter to Mike Shannon Clark Jennings From: Michael N. Shannon Sent: Monday, June 27, 2011 3:49 PM To: FCJ; JCM Subject: Fwd: Norman Business License Application Mike Shannon 501-379-171 b mshannonAggib.com Begin forwarded message: From: "Carpenter, Tom" <I'Carpenter a[ 7littlerock.oEg> Date: June 27, 2011 3:04:15 PM CDT To: "Michael N. Shannon" <mshannon@ggtb.com> Cc: "Bozynski, Tony" <T'Bozynski@littlerock.org>, "Carney, Dana" <DCarne 1littlerock.org>, "Mann, Bill" <BMannalittlerock.or >, "Engster, Bonnie" <BEngster@llittlerock.org> Subject: RE: Norman Business License Application Dear Michael, Get on the agenda. The permit, as I understand, is not going to be granted. There is some question in Planning's mind as to whether the Board of Adjustment can address the issue. But, in terms of timing you need to move ahead. If the matter does not belong on the agenda, we will address that issue. TONY/DANA — If you have another viewpoint than the one I just expressed, which is what I gleaned from comments late last week, please let us know. Tom Tom, just checking again. Of course, I'd like for the permit to be granted, but if it's going to be denied, I'd like to get on the next BZA agenda and I think the deadline is tomorrow. Michael N. Shannon mshannon@ggtb.com 501.379.1716 1 Fax:501.379.3816 Mr Norman's Recent Business License Application Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY III Center Street Suite 1900 F. Clark Jennings Little Rock, Arkansas 72201 Writer's Direct Dial cjennings a ggtb.com (50I) 379-1700 • (501) 379-1701 — Fax (501) 379-1790 May 27, 2011 City of Little Rock Zoning Department VIA L-1AND DELI LERY 723 West Markham St. Little Rock, AR 72201 RE: Business License Application of One Six One LLC/Mr. Stephen Norman Dear Sir or Madam: Attached please find an application for business license submitted by our client, One Six One LLC/Mr. Stephen Norman d/b/a Adam & Eve. Please take note of the supporting affidavit attached by Mr. Norman, in which he affirms that he intends to operate his Adam & Eve store in a fashion similar to other general commercial businesses already licensed and operating in Little Rock, and that he does not intend to open or operate a "sexually oriented business," as defined pursuant to Section 17-212 of the Little Rock City Code. Please direct correspondence regarding the status of this application for business license to both Mr. Norman at his listed mailing address, 2809 Northridge Dr., White Hall, AR, 71602, and to me at the address listed above, or via email at cjennings@ggtb.com. Thank you. Cordially, QUATTLEBAUM, GROOMS, TULL & BURROW PLLC F. Clark Jenn' s FCJ/slo Enclosures cc: Stephen Norman (via electronic mail) Treasury Managem ent Division 100 City Hail 500 West Markham Street Httle Rock. AR 72201-1497 Phone: 501-371-4645 Phone: 501-371-443 8 Fax: 501-371-4509 APPLICATION FOR BUSINESS LICENSE Acet #: NB #: Class: Amt Duce: THIS FORM WILL BE USED TO CALCULATE AND ASSESS THE AMOUNT OF TAXES DUE. A BUSINESS LICENSE CANNOT BE ISSUED FOR ANEW BUSINESS OR FOR A CHANGE OF LOCATION UNTIL THIS FORM 1S APPROVED BY THE ZONING, SIGN & PROTECTIVE CODES DIVISION LOCATED AT 723 WEST MARKHAM STREET, 501-371-4844. MFAPPLICATION OIRECTLY M ZONING U E 71.6563 APPLICATION FORA HOME -BASED BUSINESS MUST BE MADE IN PERSON AT THE ZONING OFFICE, LOCATED AT 723 W, MARKHAM STREET A. CHECK ONE; _C NEW BUSINESS CHANGE OF OWNERSHIP CHANGE OF ADDRESS (EXISTING BUSINESS) B. CHECK ONE: _SOLE PROPRIETOR PARTNERSHIP CORPORATION _y_LLC OTHER C. DATE THAT BUSINESS BEGAN OPERATION AT THE ADDRESS LISTED ON LINE xxx OR DATE OF OWNERSHIP CHANGE: 2� 4_0 I t D, NAME OF BUSINESS: ❑ w_sTk� C • - _ E. DBA NAME (IF APPLICABLE): APAR4 S EVE F. NUMBER OF FULL TIME EMPLOYEES, NOT INCLUDING THE OWNER, WORKING AT LOCATION LISTED ON LINE xxx; G. PRESENT BUSINESS LOCATION (PO BOX OR PMB# IS UNACCEPTABLE):, 4 e,—_- l0 S - k_� Q kq Ir y''{ CITY, STATE, ZIP: L,-czC� 17-ou4- I A(z.- 127,04 TELEPHONE: IGT> H, MAILING ADDRESS: _ L]� _ t_�' p k cz G C CITY, STATE, ZIP; ��i�l l� K-�- A�4Z- "{kLo?- _ I. PREVIOUS BUSINESS LOCATION (FOR CHANGE OFADDRESS ONLY): CITY, STATE, ZIP: J. STATE OF ARKANSAS SALES TAX NUMBER # (REQUIRED IF YOUR BUSINESS CHARGES SALES TAX) K. OPTIONAL E-MAILADDRESS►\004'kYtiV^w45-'1'"vw"'kSQ0.4)l.Cav%, L. BUSINESS OWNER'S NAME: 5� p�L► HOME ADDRESS; 21oa. tkpttlrRs� -- _ CITY: STATE:.- ZIP: "At(oD2- PHONE:!��-VN2. (,k5 FAX: OPTIONAL: RACE: SEX: M, DESCRIPTION OF 'vat . - e-_ L-b-r%kw4 N. DOES YOUR BUSINESS MAINTAIN INVENTORY? ./ YES-'_ NO. IF YES, LIST THE AMOUNT OF BEGINNING INVENTORY: nesb 0. DOES YOUR BUSINESS SELL TOBACCO PRODUCTS? YES �NO P. DOES YOUR BUSINESS SELL ANY TYPE OF ALCOHOLIC BEVERAGE? YES ✓NO IF Y ES, YOU MUST EITHER ATTACH COPIES OF YOUR ARKANSAS ABC PERMITSTHIS TO HIS APPLICATION OR FAX THEM TO (501) 371.4569. Q. PROPERTY OWNER'S NAME; PN, f es 1ILPHONE. .,�z�1 Pry .-AX: R. ARE YOU CURRENTLY INVOLVED WITH OR DO YOU PLAN ANY CONSTRUCTION OR REMODELING P,1' THE LOCATION-IL/YES NO EXPLAIN: ��2w a Q CO-tL1,rL _EL�t GA((Tk e S. DO YOU STORE OR STOCK FLAMMABLE OR EXPLOSIVE MATERIALS? IF YES, NOTE TYPE AND QUANTITIES: NOTE: A FALSE STATEMENT OR MISREPRESENTATI Y M E THE LICENSE NULL AND VOID AND CONSTITUTE FORFEITURE OF ANY FEES PAID. SIGNATURE OF OWNER OR REPRESENTATIVE DATE: ;w !OR OFFIV"141 aol lal{l A a n a mug nkM■nnaaaan !K ln�lnaa an soon an Moan Noma aaaalKy Ia AM an a■!1!!!y lJaian MEN Malta FCE USEONLY: PROPERTY IS ZONI"D: APPROVED/ DENIED BY:. CONDITIONS OR SPECIAL INSTRUCTIONS: ZONING OFFICAI BUILDING OFFIC CONTACTED BY: DATE: ACCOUNTA oaaalaaosa w wa K I I a n Y K■a Ka a■Ila a 2 z 0 a a o o o a a i a l a l a a a a a w a a a a a A*aw aAa w X 0 a a a I a a a s w A a l l 7 a a■'aa swam a as PLEASE NOTE: 1. IF YOU ARE NO LONGER IN BUSINESS, PLEASE SEND WRITTEN NOTIFICATION TO OUR OFFICE. 2, IFYOUR BUSINESS LOCATION CHANGES, PLEASE COMPLETE AN APPLICATION FOR CHANGE OF ADDRESS, 3. CITATIONS WILL BE ISSUED TO BUSINESSES FAILING TO COMPLY WITH THE BUSINESS LICENSE ORDINANCE, White Copy— Treasury Management CanaryCopy— Zoning PinkCopy— Customer AFFIDAVIT OF STEPHEN NORMAN State of Arkansas County of Jefferson I, Stephen Norman, being of sound mind and personally acquainted with the facts set forth herein, am capable of making this affidavit and having been duly sworn, state the following under oath: 1. My name is Stephen Norman, I am a resident of Jefferson County, and I reside at 2809 Northridge Drive in White Hall, Arkansas. I have been granted franchise rights to open a retail location of Adam & Eve Retail stores in Little Rock, Arkansas. 2. Adam & Eve is a North Carolina corporation, headquartered in Hillsborough, North Carolina. The company currently operates over forty retail stores in fourteen states. 3. Adam & Eve stores operate as upscale, specialty boutique stores offering tasteful products for both men and women. The vast majority of the products offered in their stores include lingerie and other "soft goods," and the stores also offer party and "gag gift" items, novelty products, videos, lotions, candles, and other romance-themed accessories. Adam & Eve stores in other states are generally not classified as "adult" or "sexually oriented" businesses, due to their product mix and square footage allotment for novelty products (see http://www.adamevestores.com/Franchising/FAQ.aspx). 4. In October of 20 10, 1 filed an application for a business license with the City of Little Rock (the "City"), to open and operate an Adam & Eve retail store at 7711 Cantrell Road, Although I later abandoned plans for this location due to business reasons, a City employee verbally informed me that my license application had been approved and that my store would not constitute a "sexually oriented business" under the City Code. S. To my knowledge, the 7711 Cantrell Road location was zoned "C-3" as a general commercial district. 6. It is my understanding that the City allows Cupids Lingerie ("Cupids") to operate two retail locations in Little Rock on property that is zoned C-3 for general commercial businesses. It is my understanding, therefore, that the City does not consider Cupids to be a "sexually oriented business," under Chapter 17 of the City Code. 7. The Adam & Eve store that I am attempting to open and operate at 1510 South University Avenue will be of a substantially similar nature as the two Cupids stores, and will offer a substantially similar product mix and inventory of items for sale. In fact, the most notable difference between our stores is the fact that I intend to offer even less so-called "adult" items than does either Cupids location. It is my understanding that the City previously granted a business license for Cupids to operate as a general commercial business —and not as a "sexually oriented business" —based upon affirmation from the owner that less than 35% of the store's retail floor space would be dedicated to adult material. In contrast, the Adam & Eve store I intend to open will have less than 25% of its floor space dedicated to such adult material. 9. It is also my understanding that the City granted the business license to Cupids and allowed it to operate as a general commercial business on C-3 zoned property, when the City was aware that Cupids offered "peep show" booths for on -site viewing of sexually explicit material. I do not intend to construct or ever operate any such booths in the Adam & Eve store. 10. 1 do not intend to operate my store in any manner in which I believe it would be deemed a "sexually oriented business," as defined by the City Code. I do not intend to dedicate a substantial or significant portion of my stock -in -trade or interior floor space to the sale of adult material. 11. 1 have already secured a lease agreement for the store at 1510 South University Avenue, and am awaiting approval of my license application from the City so that I may complete my build -out and open the store. I have read the foregoing statements and said statements are true and accurate to the best of my knowledge and belief. A In witness whereof, I hereunto set my hand this 2 day of May, 2011. 2 SUBSCRIBED AND SWORN before me on this day of May, 2011. 6LA ... 'd A - Notary Public in and for the State of Arkansas My commission expires: CANDi ER 1 NooPuC-Ar ansos ssnesunty My Commission iokplf If G 4? 0 / /) I Commission #f 123 �1pt_l May 16 letter to City of Little Rock Board of Directors Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY 111 Center Street Suite 1900 Little Rock, Arkansas 72201 (501) 379-1700 - (501) 379-1701— Fax Michael N. Shtuinon mshannon a ggtb.coin Licensed in Arkansas, Missouri and Kansas May 16, 2011 VIA Hand Delivery and U.S. Mail Mr. Brad Cazort Little Rock Board of Directors Little Rock City Hall 500 W. Markham Street, Room 203 Little Rock, Arkansas 72201-1400 Direct Dial 501-379-1716 Direct Fax 501-379-3816 Re: Denial of business license to Mr. Stephen Norman d/b/a Adam & Eve retail store Dear Director Cazort, By this letter I am writing to give the City of Little Rock ("the City") notice that we intend to challenge the denial of a business license to Mr. Stephen Norman, d/b/a Adam & Eve retail store, Specifically, we believe this decision, the City's course of action, and the actions of any relevant City employees or entities involved in the decision -making process were arbitrary, capricious, unreasonable, and without grounds, Accordingly, we believe we are left with no option but to pursue our available legal rights and remedies. The relevant background for this dispute is as follows, On February 24, 2011, Stephen Norman, a putative franchisee for Adam & Eve Stores, a North Carolina franchisor with over 40 independently -owned retail franchise locations in 13 states, filed an application for a business license with the Zoning Department of the City of Little Rock, pursuant to § 17-37, et seq., of the City of Little Rock Municipal Code. The City, through a representative from the Treasury Management Division, subsequently verbally denied this application. Mr. Norman was also verbally informed that the City intended to classify his endeavor as a "sexually oriented business" ("SOB"), pursuant to § 17-211, et seq., of the Code. To date, Mr. Norman has not received a written notice of denial. This firm is now in receipt of a copy of a denial letter, albeit unsigned, dated March 23rd, from Carol Freeman to Mr. Norman. The letter is addressed to the proposed business location which Mr. Norman does not control, however, not his home address. Mr, Brad Cazort May 16, 2011 Page 2 Our grounds for the challenge of this decision are predicated in part upon the knowledge that the City previously granted a business license to Cupids Lingerie ("Cupids") for locations at 3920 W. 65t' St. and 9700 N. Rodney Parham Rd. The City allows these Cupids stores to operate as "general commercial businesses" pursuant to section C-3 of the zoning classifications, rather than as "sexually oriented businesses" ("SOBs") pursuant to § 17-211, et seq,, of the Code. These decisions are most pertinent in light of the fact that our client's intended retail business will be the same type of establishment and sell substantially similar items. In all relevant aspects, the proposed store is comparable to Cupids except that "adult material" will make up even less of our client's retail floor space than it does for Cupids. Pursuant to FOIA requests filed with the appropriate city departments on March 31, 2011, we are now aware of several relevant facts concerning the operation of the Cupids Lingerie stores. The location at 3920 W. 651h St, previously operated under the name of "Adult Arcade & Video," and was found to be in violation of the sexually oriented business ordinance after the Code was amended to include day care centers in the list of establishments between which SOBs must maintain at least 750 feet of separation. Accordingly, the owner, Spencer Elmen d/b/a Sobel Inc., made changes to his business so that it would no longer be considered an SOB. In a letter dated February 13, 2004, Mr. Elmen wrote to Dana Carney, Zoning & Subdivision Manager, and detailed many of these changes, including changing the name to "Cupids" and removing "XXX" from the signage, shutting down several (but not all) "peep -show" booths, and reorganizing their inventory and product mix to include more lingerie, lotions, jewelry, etc. Most notably, Mr. Elmen indicated that, upon completion of their changes, "adult material [would constitute] less than 35% of our retail floor space," This fact is especially pertinent when compared to Mr. Norman's currently proposed store, which would also maintain less than 35% of its inventory in adult -only material. Indeed, less than 20% is typical for Adam & Eve stores. Further, Adam & Eve does not intend to have any "peep -show" booths, such as those currently operated by Cupids, Mr. Norman provided relevant documentation regarding his intended product mix during the application process. In a February 24, 2004, response to Mr. Elmen's letter, Steve Beck, Interim Director of Planning and Development, noted that "it appears the many changes you are making to your business will exclude your business from the definition of a sexually oriented business." As is now apparent, the City found the changes to the business persuasive and has allowed Cupids to operate as a general commercial business for many years, no longer classifying it as an SOB. The City Ordinance in question classifies an SOB as one having a "substantial or significant portion" of its stock in trade or floor space, or revenues from, or advertising expenditures to the promotion of material characterized by "specific sexual activities" or Mr. Brad Cazort May 16, 2011 Page 3 "specified anatomical areas." The defining question in this matter seems to be: if Cupids Lingerie is not considered to have a "substantial or significant portion" of its inventory, floor space, or revenue from such "adult material," how can Adam & Eve, a substantially similar store that by its own license application stated it would carry less of the referenced adult material than Cupids, be deemed to meet this definition? A February 6, 2004, article in the Arkansas Democrat -Gazette detailed the litigation concerning Adult Arcade & Video's (Cupids' predecessor) violation of the SOB ordinance and Mr. Elmen's efforts to convert the store and bring it into conformance. Tom Carpenter, City Attorney, was quoted in the article as saying "If a business has 51 copies of War and Peace and 49 copies of Debbie Does Dallas, the majority of items are not sexual. But basically, it boils down to whether or not you are trying to be a sexually oriented business." We could not agree more. Mr. Norman is attempting to operate a tasteful, upscale specialty boutique for men and women, just as Cupids has successfully done in Little Rock for many years. He is in no way endeavoring to open or operate a sexually -oriented business, as defined by the Code. For reference and illustration, I have attached copies of marketing materials distributed to potential Adam & Eve franchisees (see Ex. 1) and photos of the Adam & Eve store currently operating in Houston, TX (see Ex. 2). It is also worth noting that in October of 2010, when Mr. Norman filed his initial application for a business license for the Adam & Eve store —at a different location, 7711 Cantrell Road, that did not work out for other business reasons —he was verbally informed that the City had determined that the store would not constitute an SOB, and. the C-3 zoned location would be appropriate for the store. It was only after Mr. Norman filed a second (and subsequently, a third) application for a license in February of 2011 that he was informed his store would be classified as an SOB. In light of the City's actions in regards to the existing locations of Cupids Lingerie and the disparate treatment afforded Mr. Norman's efforts to open a retail operation with an even lower mix of adult items, litigation of the matter may be the only option remaining if the City does not change its position. The City's decision to deny Mr. Norman the business license appears arbitrary, capricious, and unreasonable. Moreover, the disparate treatment of similarly situated businesses opens the door to an as -applied constitutional challenge to the Ordinance. Lastly, it is disturbing that Adam & Eve, an out-of-state franchisor, appears to be receiving unequal treatment vis-h-vis the local chain, Cupids, which raises additional constitutional issues of equal protection and economic protectionism. It should be noted that the franchisor, a North Carolina -based corporation, operates a separate website for its online retail presence. Franchisees do not control the content of that website and do not receive any of the proceeds from sales it might generate. Further,,our client will not operate an independent website for its Little Rock Mr. Brad Cazort May 16, 2011 Page 4 location and, most importantly, he will maintain a product mix that is significantly different from what might be viewed on the North Carolina -based website. To the extent that this website may have been considered in the denial of Mr. Norman's business license application, we believe that is inappropriate. The only relevant determinant for how Mr. Norman may operate this retail business in Little Rock and whether its proposed use meets zoning requirements is the intended inventory and product mix in the physical location in Little Rock. In addition, Cupids operates its own website (www.shopcupids.com) that advertises many adult items, including videos and even an "online theater." See Ex. 3. Our research indicates that our client has solid claims on several independent, substantive grounds. Accordingly, I have taken the liberty of outlining several claims available to Mr. Norman if the City persists in its denial of his business license. The City's decision denies equal protection of the laws to Mr. Norman The Equal Protection Clause of the Fourteenth Amendment states that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The disparate treatment of similarly situated persons, as has occurred in the dispute in question, is the hallmark of a violation of the equal protection of the laws. States and municipalities are granted especially wide latitude when legislating pursuant to their police powers, as is the case with Little Rock's ordinance regarding SOBs. The United States Supreme Court has reminded us, however, that The State undoubtedly has the power, by appropriate legislation, to protect the public morals, the public health and the public safety, but if, by their necessary operation, its regulations looking to either of those ends amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void. Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 558 (1902), overruled in part by Tigner v, Texas, 310 U.S. 141 (1940), Applying this concept to the realm of municipal licensing schemes, the Virginia Supreme Court has affirmed that "[t]he right of an individual to engage in a lawful business may not be arbitrarily denied to him and granted to another under the guise of regulation." Flax v. City of Richmond, 52 S.E.2d 250, 255 (Va. 1949) (citing Connolly, supra). A plaintiff that does not allege to be a member of a protected class may still bring an equal protection claim under the "class of one" legal theory. See Village of Willowbrook v. Olech, 528 U.S. 562, (2000) (per curiam). To prevail on such a claim, the plaintiff must show that he "has been intentionally treated differently from others similarly situated" and that "there is no rational basis for the difference in treatment." Id. at 564. We believe a jury would be well -situated to determine whether or not the City of Little Rock has treated Mr. Norman differently than Cupids, a very similarly situated Mr. Brad Cazort May 16, 2011 Page 5 business, and whether there was any truly rational basis for that difference in treatment. A dispute with strong factual similarities to ours was heard by the Supreme Court of Alabama regarding the City of Hueytown's denial of a business license for the sale of table wine to a store within one mile of a school. See City of Hueytown v. Jiffy Chek Co., 342 So.2d 761 (Ala. 1977). The city applied a state statute which regulated the licensing of stores for table wine, and prohibited them from being located within a mile of schools and eleemosynary institutions, to deny Jiffy Chek's application for a business license. Id. at 761. As the evidence illustrated, however, the city had already granted licenses to three other stores "within the same class of establishments" as Jiffy Chek, Id. Noting that the "essence of the theory of equal protection of the laws is that all similarly situated be treated alike," the court noted that the city could not "point out how Jiffy Chek is so distinguishable from the licensed merchants as to justify refusing it a license," and, thus, the corporation was denied the equal protection of the laws. Id. at 762. "It stands undisputed that Jiffy Chek is in the same class as the others. Denial of a table wine license to it under the circumstances amounts to arbitrary, capricious discrimination." Id. Thus, a ringing violation of Mr. Norman's rights to equal protection under the laws can be established in a court of law. The City's decision violates Mr. Norman's rights under the First Amendment The subjective grounds upon which the City acted in this matter —granting one business license while denying another for a nearly identical establishment —also raises the question of whether the ordinance places unbridled discretion in the hands of the City employee(s) who made the decision to deny Mr. Norman a business license. Such unbridled discretion can have a chilling effect on protected speech and amount to a prior restraint when applied to a business with a valid First Amendment right, such as our client. Businesses purveying sexually explicit speech are protected by the First Amendment, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990). As such, it has been settled by a long line of recent decisions of this Court that an ordinance which .. . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Id, at 226 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969)). Numerous decisions of the United States Supreme Court reaffirm this notion. See FW/PBS, supra at Mr. Brad Cazort May 16, 2011 Page 6 225-26 (listing several decision of the Supreme Court as precedent). The Arkansas Supreme Court recognized this line of precedent in a case involving sexually oriented businesses in Hot Springs. Orrell v. City of Hot Springs, 311 Ark. 301, 844 S.W.2d 310 (1992) ("a scheme that places unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.") Id at 304, 844 S.W.2d at 312; see also Blue Moon Entm't, LLC v. City of Bates City, Mo., 441 F.3d 561, 565 (8th Cir, 2006) ("A licensing scheme generally must provide narrow, objective, and definite standards to guide the licensing authority ...."). We coo not mean to suggest that the City of Little Rock ordinance is facially invalid on First Amendment grounds; the long line of decisions following City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), suggests otherwise. Rather, it is the apparent subjectivity of the City's decision -making process and the lack of guidance in the ordinance that leaves the City vulnerable to an as -applied challenge on constitutional grounds. The City ordinance regulating sexually oriented businesses is unconstitutionally vague Moreover, the wholly arbitrary fashion in which the City has applied its ordinance regulating SOBs suggests that it fails to give proper, if any, guidance to City employees, enforcement officials, and citizens as to how it will be applied to certain businesses. In 2005, the Supreme Court of Tennessee struck down a Knoxville ordinance regulating sexually -oriented businesses that is substantially similar'to the current law in Little Rock, See City of Knoxville v. Entertainment Resources, LLC, 166 S.W.3d 650 (Tenn. 2005). Knoxville City Code section 16-468 regulated the location of "adult businesses" and included in that category adult bookstores, which it defined as an establishment having as a substantial or significant portion of its stock and trade books, magazines and other periodicals, videotapes or other electronic media which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, or an establishment with a segment or a section devoted to the sale or display of such material. Id. at 652 (emphasis in original). The dispute arose over whether the phrase "substantial or significant portion of its stock and trade" was impermissibly vague under the United State and Tennessee constitutions. Id. The City of Knoxville's contention was that the terms "substantial" and "significant" were familiar and capable of ready understanding by persons of ordinary intelligence. Id. at 655. In striking down the ordinance as vague and invalid on its face, the court noted Mr. Brad Cazort May 16, 2011 Page 7 that "[a]s written, the determination of what constitutes a `substantial or significant portion' of a business's `stock and trade' under the ordinance is an entirely subjective one." Id. at 656. The court went on to declare that the "ordinance gives no objective guidance to businesses regulated by the ordinance or officials charged with its enforcement." Id. at 656-57. "What is `substantial' or `significant' to one person may just as easily be `unsubstantial' or `insignificant' to another." Id at 657; see also Ellwest Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553, 1581 (M.D. Tenn. 1989) (finding "substantial or significant" unconstitutionally vague because city officials in charge of enforcing the ordinance could not define what the phrase meant; "Clearly, if the regulating authority cannot determine the establishments which are subject to its authority, the establishments themselves cannot be expected to determine whether they need to be licensed or not."). Further, a passage from the City of Knoxville decision is particularly relevant to the dispute at hand, given Little Rock's position in granting a business license to Cupids Lingerie while denying same to our client. To wit: "Surely the City must have had some idea of what amount of sexually -explicit material was tolerable under the ordinance, particularly given the fact that the record shows that the City takes the position that Gemstone Video Stores, which also stock sexually -explicit videotapes, was not in violation of the ordinance." 166 S.W.3d at 658. "In the absence of any articulable standards from the City," the court concluded that the ordinance was vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Id. Such is the position in which our client finds himself by virtue of Little Rock's actions. An ordinance which would grant a license to one business, yet deny the same to a virtually identical one, presents no specified standard of conduct to which a putative business owner may conform. Additionally, similar ordinances in other municipalities have withstood constitutional scrutiny, in part due to the fact that sufficient guidelines were included to guide enforcement officials and affected citizens/businesses. The City of New York, for example, enacted a zoning ordinance that regulates adult bookstores in an analogous fashion, by classifying such stores as those having a "substantial portion" of its "stock -in - trade" in adult items. See City of N. Y. v. Les Hommes, 724 N.E.2d 368 (1999). The city's Department of Buildings provided guidance, however, in the form of an "Operations Policy and Procedure Notice . . . to clarify the meaning of the phrase `substantial portion."' Id. at 370. The administrative regulation provided "'[if] at least 40 percent of the book store's total stock accessible or available ... is comprised of adult materials, then the book store has a `substantial portion' of its stock in adult materials."' Id. The appellate court noted "the City's precise guidelines" in construing the plain language of the ordinance in favor of the adult bookstore owner. Id. at 371. Mr. Brad Cazort May 16, 2011 Page 8 The United States Supreme Court addressed a similar issue in Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., in which a village ordinance regulating the sale of drug paraphernalia was held not to be vague, in part because the village attorney issued guidelines explaining relevant portions of the ordinance. 455 U.S. 489 (1982). The Court noted there that "[t]he village may adopt administrative regulations that will sufficiently narrow potentially vague or arbitrary interpretations of the ordinance. In economic regulation especially, such administrative regulation will often suffice to clarify a standard with an otherwise uncertain scope." Id. at 504. In the absence of any such guidelines from Little Rock regarding what actually constitutes a "substantial or significant portion" under § 17-212 of the Code, we are left with a law that is wholly uncertain in scope, as evidenced by how it was applied to the detriment of our client. As a final note, the Arkansas Supreme Court has spoken with regard to the standard of review in this context, declaring Statutes and ordinances imposing licenses and business taxes are generally to be construed liberally in favor of the citizen and strictly against the government, whether state or municipal, especially where they provide penalties for their violation. Accordingly, if the enactment is not clear and positive in its terms, or if it is reasonably open to different interpretations through the indefiniteness of its provisions, every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied. Arkansas State Licensing Bd. for Gen. Contractors v. Lane, 214 Ark. 312, 317, 215 S.W.2d 707, 710 (1948) (quoting 53 C.J.S., Licenses, § 13). The circumstances of the current dispute certainly illustrate that the City Ordinance regulating SOBs is "reasonably open to different interpretations through the indefiniteness of its provision." The issue is thus ripe for a jury to make a determination as to the application of the ordinance to Mr. Norman; and in construing the indefinite language of the law, the tie goes to the citizen - business owner. At this point, we ask that the City reconsider the matter and approve our client's license application so that he may open and operate his business, as he is legally free to do. If the City stands by its denial, however, we will be left with no option but to press our rights and remedies in a court of law. We are prepared to bring suit for both (1) a declaratory judgment that our client's civil and constitutional rights have been violated, and (2) an award of compensatory damages against the City, as well as attorneys' fees, costs, and all other relief to which our client is entitled. Our client has been denied the privilege of operating his business in the City of Little Rock, and we believe a jury is well -situated to find that, in so doing, the City has acted arbitrarily, capriciously, and in violation of Mr. Norman's rights at law. Mr. Brad Cazort May 16, 2011 Page 9 I appreciate your time and consideration of this matter. If you would like to discuss further, please feel free to contact me at mshannon@ggtb.com or 501.379.1716. Respectfully, QUATTLEBAUM, GROOMS TULL & BURROW, PLLC .0 ael X Si , iulon MNS/lad Enclosures cc; Stephen Norman (w/ encls.) Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY I I I Center Street Suite 1900 Little Rock, Arkansas 72201 (501) 379-1700 • (501) 379-1701 — Fax Michael N. Shannon mshannon@ggtb.com Licensed in Arkansas, Missouri and Kansas July 7, 2011 City of Little Rock Board of Zoning Adjustment c/o Mr. Dana Carney 723 West Markham Street Little Rock, AR 72201 Direct Dial 501-379-1716 Direct Fax 501-379-3816 lla Hand Delivery Re: Denial of business license application of Stephen Norman, d/b/a Adam & Eve stores Dear Mr. Carney, As you are aware, we represent Stephen Norman in the above -referenced matter. On July 1, 2011 you denied Mr. Norman's application for a business license to operate a franchise retail location of Adam & Eve stores. Because we believe the application was wrongfully denied, we intend to appeal this decision to circuit court pursuant to Ark. Code Ann. § 14-56-425. In accordance with the procedure for appeals to the circuit court, please let this serve as our request pursuant to Arkansas District Court Rule 9 that you prepare a "certified copy" of the record of all proceedings before the Zoning Department regarding the denial of Mr. Norman's application for a business license. Rule 9(f) requires, in part, the filing of "certified copies of all the materials the party has or can obtain that document the administrative proceeding." The record should include, without limitation, all items presented to or used by the Zoning Department in considering Mr. Norman's application and all documents, records or writings, including emails, setting forth and/or concerning the actions/deliberation/decisions of the Zoning Department in this matter. At a minimum, all of Mr. Norman's submitted applications and accompanying materials should be included. If there are any fees authorized by law that we need to pay, please let me know and we will cover them promptly. We intend to file this action in the Circuit Court of Pulaski County by Friday, July 15. Accordingly, we cordially request that your office please provide us with the certified record by Wednesday, July 13. Pursuant to the process mandated by Ark. Code Ann. § 14-56-425 and Arkansas District Court Rule 9, time is of the essence in this matter. City of Little Rock Board of Zoning Adjustment Mr. Dana Carney July 7, 2011 Page 2 Please remember that, pursuant to District Court Rule 9, the record must be "certified" by you or someone in your office with the authority to do so. If you are not aware of a regular process by which you certify materials produced by your office, I am happy to discuss options with you. At a minimum, we would appreciate a cover letter, on your office letterhead and under your signature, stating that you certify the authenticity of the enclosed materials. Once you have received this letter, please contact my office to confirm that you have received it and are preparing the requested certified record. Thank you for your time and attention to this matter. Respectfully, QUATTLEBAUM, GROOMS TULL & BURROW, PLLC ichae , cannon MNS/lad cc: Mr. Tom Carpenter, Esq. (via hand delivery) Mr. Monte Moore (via hand delivery) Page 1 of 2 Carney, Dana From: Carney, Dana Sent: Wednesday, July 13, 2011 4:04 PM To: 'Clark Jennings'; Carpenter, Tom Cc: MNS; JCM; FCJ Subject: RE: July 25 BZA Meeting Agenda - denial of Stephen Norman/Adam & Eve business license Tracking: Recipient Delivery. 'Clark Jennings' Carpenter, Tom Delivered: 7/13/20114:04 PM MNS JCM FCJ the item is on the Board of Adjustment's July 25, 2011 agenda. The Board may render a decision on that date. -----Original Message ----- From: Clark Jennings [mailto:cjennings@ggtb.com] Sent: Wednesday, July 13, 2011 3:55 PM To: Carney, Dana; Carpenter, Tom Cc: MNS; JCM; FCJ Subject: July 25 BZA Meeting Agenda - denial of Stephen Norman/Adam & Eve business license Mr. Carney, I am writing to inquire and confirm that Mr. Stephen Norman, d/b/a Adam & Eve, is on the agenda for the July 25th meeting of the Board of Zoning Adjustment, and that he will have the opportunity to be heard at the meeting. In a June 28, 2011 letter from our firm to you and Bruce Moore, we expressed our desire to appeal the denial of Mr. Norman's application for a business license and requested a hearing before the BZA, as the body empowered to hear such an administrative appeal. In that letter and accompanying materials, we also included our application -including payment of the required filing fee -for a hearing before the BZA. We would like to confirm that the appeal of the denial of Mr. Norman's application is on the agenda for the July 25 meeting, and also confirm that the Board of Zoning Adjustment will be prepared to render a decision on the appeal of this matter, pursuant to City Code Section 336-69 (giving the BZA the power "to hear appeals from the decision of the administrative officers in respect to the enforcement and application of [the zoning] chapter; and may affirm or reverse, in whole or in part, said decision of the administrative officer."). Would you please confirm? Thank you, F. Clark Jennings cjennings@ggtb.com I vcard 501.379.1790 1 Fax: 501.379.3890 7/13/2011 Page 2 of 2 Susan Odom I Legal Assistant sodom@ggtb.com I vcard 501.379.1768 1 Fax: 501.379.3868 QGTB 111 Center Street, Suite 1900 Little Rock, Arkansas 72201 Map I www.QGTB.com This e-mail message and any attachments contain confidential information that may be legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e- mail in error, please immediately notify us by return e-mail or by telephone at 501-379-1700 and delete this a -mail. Please note that if this e-mail contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by Quattlebaum, Grooms, Tull & Burrow PLLC. Receipt of e-mail does not establish an attorney -client relationship. 7/13/2011 Page 1 of 2 Carney, Dana From: Michael N. Shannon [mshannon@qgtb.com] Sent: Tuesday, August 02, 2011 12:23 PM To: Carney, Dana Cc: FCJ; JCM Subject: RE: (Stephen Norman) quick question - materials to BZA members Dana, since the BZA determined that it did not have jurisdiction, can we have our application fee returned? Michael N. Shannon rnshannon@Qp,tb.com 501.379.1716 1 Fax: 501.379.3816 From: Carney, Dana [mailto:DCarney@littlerock.org] Sent: Monday, July 18, 2011 8:26 AM To: Clark Jennings Cc: Michael N. Shannon Subject: RE: (Stephen Norman) quick question - materials to BZA members checked with staff and have been told that all of the indicated information was included in the packets delivered to the BZA. -----Original Message ----- From: Clark Jennings [mailto:cjennings@ggtb.com] Sent: Thursday, July 14, 2011 3:08 PM To: Carney, Dana Cc: Michael N. Shannon; Clark Jennings Subject: (Stephen Norman) quick question - materials to BZA members Dana, I appreciate your help in this matter and am sorry to pester, but one very quick question per our discussion on the phone today: Can you please confirm that the members of the BZA will receive, in the materials pertaining to Mr. Stephen Norman's application that will accompany their agenda for the July 25 meeting, the following: • The cover letter AND signed affidavit of Mr. Norman that was attached to his business license application, and ■ Our May 16th letter to the Board of Directors setting forth our view of the background facts and legal issues in play, which we attached to the letter requesting this appeal to the BZA If you are already including this information as part of their materials, then we won't bother them by filling their mailboxes with redundant information. Thank you, Clark F. Clark Jennings 8/2/2011 Page 2 of 2 cjennings@ggtb.com I vcard 501.379.1790 1 Fax: 501.379.3890 Susan Odom I Legal Assistant Sodom@qgtb.com I vcard 501.379.1768 1 Fax: 501.379.3868 QGTB, OkA iLEMM GRO VS,M1 & StlMCW P110 111 Center Street, Suite 1900 Little Rock, Arkansas 72201 Map I www.QGTB.com This e-mail message and any attachments contain confidential information that may be legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e- mail in error, please immediately notify us by return e-mail or by telephone at 501-379-1700 and delete this e-mail. Please note that if this e-mail contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by Quattlebaum, Grooms, Tull & Burrow PLLC. Receipt of e-mail does not establish an attorney -client relationship. 8/2/2011 \Q 4"® 49 674 ® �D,% 41** a 0 o ® �Iwo o �- M - S MCKINLEY ST A ~ JCYCE CT� S CLEVELAND ST c v �l9/ ®� 00, ®�I�r �■ �i■frrr�r��`� 09 �� "ii+ loo low IN Mille IL ■ �i. M-M-M- � Now z ■ ! �� 0 a '32 3 .-f_— - - O X . v M O w slim" �w 1 ■ F f ■oo ll■l lbli � � —S GRANT ST-- P401F Me logo ------------- - .'�■ �'�� I 111110118 INNS 5 n ■ --- -S UNIVERSITY AVE' 01. S BUCHANAN ST .. ■ ilJb � ® ■■ -- --- - - _ -------------®_ ----- Irma Iwo if rj 0 W * S PIERCE ST ��■�� ■■■ Isis■------------- 13 16 a' ad ■� ■ Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY CDMPANY 1 I i Center Street Suite 1900 LWIc Rock, Arkansas 72201 (501) 379-1700 • (SO[) 379-1701 — Fax Michael 14. Shannon msbatutmt©gg(b.com Licensed in Arkansas, Missouri and Kansas July 18, 2011 Via U.S. Mail Mr. Brad Wingfield City of Little Rock Board of Zoning Adjustment c/o Pollution Management, Inc. 3512 South Shackelford Road Little Rock, AR 72205 Rajesh Mehta 209 Deauville Place Little Rock. AR 72223 Mr. Scott Smith 2701 Kavanaugh Blvd. Little Rock, AR 72205 Mr. Bob Winchester 8521 Cantrell Road Little Rock, AR 72227 Mr. Jeff Yates 66 El Dorado Drive Little Rock, AR 72212 Direct Dial 501-379-1716 Direct Fxx 501-379-3816 Re; July 25, 2011 BZA Meeting Agenda Item — denial of application for business license to Stephen Norman d/b/a Adam & Eve Dear Mr. Wingfield, Our firm represents Stephen Norman in the above -captioned matter. As you may already be aware, Mr. Noiman's application for a business license is listed as an agenda item for discussion at the July 25, 2011 meeting of the Board of Zoning Adjustment, Mr. Brad Wingfield July l s, 201 1 Page 2 The City of Little Rock. through its Zoning Department, has denied Mr. Norman's application for a business license to open and operate a retail franchise location of Adam & Eve stores at 1510 S. University Avenue. We believe the City's actions to be wrongful, and Mr. Norman is appealing this denial. Mr. Norman seeks this hearing from the Board of Zoning Adjustment so that the Board may take final action on the matter, pursuant to Ark. Code Ann. § 14-56-425. The background and factual circumstances surrounding this matter are thoroughly set forth in a May 16, 2011 letter that was sent to the members of the City of Little Rock Board of Directors, a copy of which is enclosed for your reference. We are writing to pass along this letter and other background materials to help ensure that the Board is fully informed on the matter and prepared to render a decision on Mr. Norman's application. Accordingly, please find enclosed with this letter the following: ■ May 16, 2011 letter from this firm to the City of Little Rock Board of Directors, setting out the factual background of this dispute and discussing the legal implications of the City's actions. ■ Mr. Norman's application for a business license, including the accompanying cover letter and sworn affidavit from Mr. Norman, in which he declares his intention to operate the Adam & Eve store in compliance with § 17-212 of the Little Rock City Code so as not to be considered a "sexually oriented business." • Sworn affidavit of David J. Keegan, General Manager of Adam & Eve Franchise Corporation, in which Mr. Keegan attests to the fact that, of the 41 franchise retail locations of Adam & Eve stores in 13 states, not a single one operates as a "sexually oriented business" under relevant city zoning ordinances and/or state and laws. ■ Pictures from the Houston, Texas franchise of Adam & Eve stores, demonstrating the upscale, specialty boutique nature of the business. Excerpts from franchise materials distributed by the Adam & Eve Franchise Corporation, giving background information on Adam & Eve stores and fiirther demonstrating the upscale, specialty boutique nature of the business. We hope you find these materials helpful in advance of the upcoming Board meeting and we appreciate your time and consideration of this matter. We look forward to speaking with you on July 25`h. if we can be of any further assistance before then, please do not hesitate to contact IVIr, Brad Wingfield July 18, 2011 Page 3 me at 501.379.1716 or mshannon@ggtb.com. Respectfully, QUATTLE.BAUM, GROOMS ?ichael3i BURR , P'LLC zannon MNS/lad Enclosures cc, Mr, Dana Carney (vio U.S. Mail) Enclosure 1 May 16, 2011 Letter Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COM13ANY I I I Center Street Suite 1900 Lithe Rock, AskansAs 72201 (501) 379-1700 � (501) 379-1701 —Fax Michnel N. Shannon ntshnnnon©ggtb,eont Licensed in Arkenses, Missouri and Kansas May 16, 201 l VIA Hand Delivery and U.S Mail Mr. ]Brad Cazort Little Rock Board of Directors Little Rock City Hall 500 W. Markham Street, Roorn 203 Little Rock, Arkansas 72201-1400 Dhvct Dial SO1-379-1716 Dirwl Fax 501-379-3316 Re: Denial of business license to Mr. Stephen Norman d/b/a Adam & Eve retail store Dear Director Cazort, By this letter l am writing to give the City of Little Rock ("the City") notice that we intend to challenge the denial of a business license to Mr. Stephen Norman, d/b/a Adam & Eve retail store. Specifically, we believe this decision, the City's course of action, and the actions of any relevant City employees or entities involved in the decision -making process were arbitrary, capricious, unreasonable, and without grounds. Accordingly, we believe we are left with no option but to pursue our available legal rights and remedies. The relevant background for this dispute is as follows. On February 24, 2011, Stephen Norman, a putative franchisee for Adam & Eve Stores, a North Carolina franchisor with over 40 independently -owned retail franchise locations in 13 states, filed an application for a business license with the Zoning Department of the City of Little Rock, pursuant to § 17-37, et seq., of the City of Little Rock Municipal Code. The City, through a representative from the Treasury Management Division, subsequently verbally denied this application, Mr. Norman was also verbally informed that the City intended to classify his endeavor as a "sexually oriented business" ("SOB"), pursuant to § 17-211, et seq., of the Code, To date, Mr. Norman has not received a written notice of denial. This firm is now in receipt of a copy of a denial letter, albeit unsigned, dated March 23rd, from Carol Freeman to Mr. Norman. The letter is addressed to the proposed business location which Mr. Norman does not control, however, not his home address. Mr. Brad Cazort May 16, 2011 Page 2 Our grounds for the challenge of this decision are predicated in part upon the knowledge that the City previously ranted a business license to Cupids Lingerie ("Cupids") for locations at 3920 W. 65" St. and 9700 N. Rodney Parham Rd. The City allows these Cupids stores to operate as "general commercial businesses" pursuant to section C-3 of the zoning classifications, rather than as "sexually oriented businesses" ("SOBs") pursuant to § 17-211, et seq., of the Code. These decisions are most- pertinent in light of the fact that our client's intended retail business will be the same type of establislunent and sell substantially similar items. In all relevant aspects, the proposed store is comparable to Cupids except that "adult material" will make up even less of our client's retail floor space than it does for Cupids. Pursuant to FOIA requests filed with the appropriate city departments on March 31, 2011, we are now aware of several relevant facts concerning the operation of the Cupids Lingerie stores. The location at 3920 W. 65`h St, previously operated under the name of "Adult Arcade & Video," and was found to be in violation of the sexually oriented business ordinance after the Code was amended to include day care centers in the list of establishments between which SOBs must maintain at least 750 feet of separation. Accordingly, the owner, Spencer Elmen d/b/a Sobel Inc., made changes to his business so that it would no longer be considered an SOB. In a letter dated February 13, 2004, Mr. Elmen wrote to Dana Carney, Zoning & Subdivision Manager, and detailed many of these changes, including changing the name to "Cupids" and removing "XXX" from the signage, shutting down several (but not all) "peep -show" booths, and reorganizing their inventory and product mix to include more lingerie, lotions, jewelry, etc. Most notably, Mr. Elmen indicated that, upon completion of their changes, "adult material [would constitute] less than 35% of our retail floor space." This fad is especially pertinent when compared to Mr, Norman's currently proposed store, which would also maintain less than 35% of its inventory in adult -only material. Indeed, less than 20% is typical for Adam & Eve stores. Further, Adam & Eve does not intend to have any "peep -show" booths, such as those currently operated by Cupids. Mr. Norman provided relevant documentation regarding his intended product mix during the application process. In a February 24, 2004, response to Mr. Elmen's letter, Steve Beck, Interim Director of Planning and Development, noted that "it appears the many changes you are making to your business will exclude your business from the definition of a sexually oriented business." As is now apparent, the City found the changes to the business persuasive and has allowed Cupids to operate as a general commercial business for many years, no longer classifying it as an SOB. The City Ordinance in question classifies an SOB as one having a "substantial or significant portion" of its stock in trade or floor space, or revenues from, or advertising expenditures to the promotion of material characterized by "specific sexual activities" or Mr. Brad Cazort May 16, 201 1 Page 3 "specified anatomical areas." The defining question in this matter seems to be: if Cupids Lingerie is not considered to have a "substantial or significant portion" of its inventory, floor space, or revenue from such "adult material," how can Adam & Eve, a substantially similar store that by its own license application stated it would carry less of the referenced adult material than Cupids, be deemed to mcet this definition? A February 6, 2004, article in the lirkansas Democrat -Gazette detailed the litigation concerning Adult Arcade & Video's (Cupids' predecessor) violation of the SOB ordinance and Mr. Elmen's efforts to convert the store and bring it into conformance, Tom Carpenter, City Attorney, was quoted in the article as saying "If a business has 51 copies of War and Peace and 49 copies of Debbie Does Dallas, the majority of items are not sexual. But basically, it boils down to whether or not you are trying to be a sexually oriented business." We could not agree more. Mr, Norman is attempting to operate a tasteful, upscale specialty boutique for men and women, just as Cupids has successfully done in Little Rock for many yews. He is in no way endeavoring to open or operate a sexually -oriented business, as defined by the Code. For reference and illustration, I have attached copies of marketing materials distributed to potential Adam & Eve franchisees (see Ex. 1) and photos of the Adam & Eve store currently operating in Houston, TX (see Ex. 2). It is also worth noting that in October of 2010, when Mr. Norman filed his initial application for a business license for the Adam & Eve store —at a different location, 7711 Cantrell Road, that did not work out for other business reasons --he was verbally informed that the City had determined that the store would not constitute an SOB, and. the C-3 zoned location would be appropriate for the store. It was only after Mr. Norman Filed a second (and subsequently, a third) application for a license in February of 2011 that he was informed his store would be classified as an SOB. In light of the City's actions in regards to the existing locations of Cupids Lingerie and the disparate treatment afforded Mr. Norman's efforts to open a retail operation with an even lower mix of adult items, Litigation of the matter may be the only option remaining if the City does not change its position. The City's decision to deny Mr. Norman the business license appears arbitrary, capricious, and unreasonable, Moreover, the disparate treatment of similarly situated businesses opens the door to an as -applied constitutional challenge to the Ordinance. Lastly, it is disturbing that Adam & Eve, an out-of-state franchisor, appears to be receiving unequal treatment vis-&-vis the local chain, Cupids, which raises additional constitutional issues of equal protection and economic protectionism. It should be noted that the franchisor, a North Carolina -based corporation; operates a separate website for its online retail presence, Franchisees do not control the content of that website and do not receive any of the proceeds from sales it might generate, Further, -our client will not operate an independent website for its Little Rock Mr, Brad Cazort May 16, 2011 Page 4 location and, most importantly, he will maintain a product mix that is significantly different from what might be viewed on the North Carolina -based website. To the extent that this website may have been considered in the denial of Mr. Norman's business license application, we believe that is inappropriate. The only relevant determinant for how Mr. Norman may operate this retail business in Little Rock and whether its proposed use meets zoning requirements'is the intended inventory and product mix in the physical location in Little Rock. In addition, Cupids operates its own website (www, shopeupids. coin) that advertises many adult items, including videos and even an "online theater." See Ex, 3. Our research indicates that our client has solid claims on several independent, substantive grounds. Accordingly, I have talcen the liberty of outlining several claims available to Mr. Norman if the City persists in its denial of his business license, The City's decision denies equal protection of the laws to Mr. Norman The Equal Protection Clause of the Fourteenth Amendment states that "tn]o State shall . , . deny to any person within its jurisdiction the equal protection of the laws," U.S. Const, amend. XIV, § 1. The disparate treatment of similarly situated persons, as has occurred in the dispute in question, is the hallmark of a violation of the equal protection of the laws. States and municipalities are granted especially wide latitude when legislating pursuant to their police powers, as is the case with Little -Rock's ordinance regarding SOBS. The United States Supreme Court has reminded us, however, that The State undoubtedly has the power, by appropriate legislation, to protect the public morals, the public health and the public safety, but if, by their necessary operation, its regulations looking to either of those ends amount to a denial to persons within its jurisdiction bf the equal protection of the laws, they must be deemed unconstitutional and void. Connolly v. Union Sewer Pipe Co., 184 U,S, 540, 558 (1902), overruled in part by Tigner v. Texas, 310 U.S. 141 (1940). Applying this concept to the realm of municipal licensing schemes, the Virginia Supreme Court has affirmed that "[Qbc right of an individual to engage in a lawful business may not be arbitrarily denied to him and granted to another under the guise of regulation." Flax v. City of Richmond, 52 S.E.2d 250, 255 (Va. 1949) (citing Connolly, supra), A plaintiff that does not allege to be a member of a protected class may still bring an equal protection claim under the "class of one" legal theory. See Village of Willowbrook v. Olech, 528 U.S, 562, (2000) (per curiam). To prevail on such a claim, the plaintiff must show that he "has been intentionally treated differently from others similarly situated" and that "there is no rational basis for the difference in treatment." Id. at 564. We believe a jury would be well -situated to determine whether or not the City of Little Rock has treated Mr, Norman differently than Cupids, a very similarly situated Mr. Brad Cazort May 16, 2011 Page 5 business, and whether there was any truly rational basis for that difference in treatment. A dispute with strong factual similarities to ours was heard by the Supreme Court of Alabama regarding the City of Flueytown's denial of a business license for the sale of table wine to a store within one mile of a school. &e City of Hueytown v. J ffy Chek Co., 342 So.2d 761 (Ala. 1977). The city applied a state statute which regulated the licensing of stores for table wine, and prohibited them from being located within a mile of schools and eleemosynary institutions, to deny Jiffy Chek's application for a business license, Id. at 761, As the evidence illustrated, however, the city had already granted licenses to three other stores "within the same class of establishments" as Jiffy Chek, Id. Noting that the "essence of the theory of equal protection of the laws is that all similarly situated be treated alike," the court noted that the city could not "point out how Jiffy Chek is so distinguishable from the licensed merchants as to justify refusing it a license," and, thus, the corporation was denied the equal protection of the laws. Id. at 762. "It stands undisputed that Jiffy Chek is in the same class as the others. Denial of a table wine license to it under the circumstances amounts to arbitrary, capricious discrimination." Id Thus, a ringing violation of Mr. Norman's rights to equal protection under the laws can be established in a court of law. The City's decision violates Mr. Norman's rights under the First Amendment The subjective grounds upon which the City acted in this matter --granting one business license while denying another for a nearly identical establishment —also raises the question of whether the ordinance places unbridled discretion in the hands of the City employee(s) who made the decision to deny Mr. Norman a business license. Such unbridled discretion can have a chilling effect on protected speech and amount to a prior restraint when applied to a business with a valid First Amendment right, such as our client. Businesses purveying sexually explicit speech are protected by the First Amendment. FIB/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990). As such, it has been settled by a long line of recent decisions of this Court that an ordinance which .. . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint• upon the enjoyment of those freedoms. Id, at 226 (quoting Shuttlesworth v, Birmingham, 394 U.S. 147, 151 (1969)). Numerous decisions of the United States Supreme Court reaffirm this notion. See FW/PBS, supra at Mr. Brad Cazort May 16, 2011 Page 6 225-26 (listing several decision of the Supreme Court as precedent). The Arkansas Supreme Court recognized this line of precedent in a case involving sexually oriented businesses in Hot Springs, Orrell v. City of Hot Springs, 311 Ark, 301, 844 S.W.2d 310 (1992) ("a scheme that places unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.") Id. at 304, 844 S.W.2d at 312; see also Blue .Moon Entm't, LLC v. City of Bates City, Mo., 441 F.3d 561., 565 (8th Cir, 2006) ("A licensing scheme generally must provide narrow, objective, and definite standards to guide the licensing authority ...."). We do not mean to suggest that the City of Little Rock ordinance is facially invalid on First Amendunent grounds; the long line of decisions following City of Renton v. Playtime Theatres, Inc., 475 U.S. 4I (1986), suggests otherwise. Rather, it is the apparent subjectivity of the City's decision -making process and the lack of guidance in the ordinance that leaves the City vulnerable to an as -applied challenge on constitutional grounds. The City ordinance regulating sexually oriented businesses is unconstitutionally vague Moreover, the wholly arbitrary fashion in which the City has applied its ordinance regulating SOBs suggests that it fails to give proper, if any, guidance to City employees, enforcement officials, and citizens as to how it will be applied to certain businesses. In 2005, the Supreme Cow', of Tennessee struck down a Knoxville ordinance regulating sexually -oriented businesses that is substantially similar'to the current law in Little Rock. See City of Knoxville v. Entertainment Resources, LLC, 166 S,W.3d 650 (Tenn. 2005). Knoxville City Code section 16-468 regulated the location of "adult businesses" and included in that category adult bookstores, which it defined as an establishment having as a substantial or significant portion of its stock and trade books, magazines and other periodicals, videotapes or other electronic media which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, or an establishment with a segment or a section devoted to the sale or display of such material. .Id. at 652 (emphasis in original). The dispute arose over whether the phrase "substantial or significant portion of its stock and trade" was impermissibly vague under the United State and Tennessee constitutions. Id. The City of Knoxville's contention was that the terms "substantial" and "significant" were familiar and capable of ready understanding by persons of ordinary intelligence. Id. at 655. In striking down the ordinance as vague and invalid on its face, the court noted Mr. Brad Cazort May 16, 20 L 1 Page 7 that "[a]s written, the determination of what constitutes a `substantial or significant portion' of a business's 'stock and trade' under the ordinance is an entirely subjective one." Id, at 656. The court went on -to declare that the "ordinance gives no objective guidance to businesses regulated by the ordinance or officials charged with its enforcement," Icy at 656-57, "What is 'substantial' or 'significant' to one person may just as easily be 'unsubstantial' or 'insignificant' to another." Id. at 657; see also Ellwesi Stereo Theater, Inc, v, Boner, 718 F. Supp. 1553, 1581 (M,D. Tenn, 1989) (finding "substantial or significant" unconstitutionally vague because city officials ui charge of enforcing the ordinance could not define what the phrase meant; "Clearly, if the regulating authority cannot determine the establishments which are subject to its authority, the establishments themselves cannot be expected to determine whether they need to be licensed or not."), Further, a passage from the City of Knoxville decision is particularly relevant to the dispute at hand, given Little Rock's position in granting a business license to Cupids Lingerie while denying same to our client. To wit: "Surely the City must have had some idea of what amount of sexually -explicit material was tolerable under the ordinance, particularly given the fact that the record shows that the City takes the position that Gemstone Video Stores, which also stock sexually -explicit videotapes, was not in violation of the ordinance." 166 S.W,3d at 658. "In the absence of any articulable standards from the City," the court concluded that the ordinance was vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible nonnative standard, but rather in the sense that no standard of conduct is specified at all." Id. Such is the position in which our client finds himself by virtue of Little Rock's actions, An ordinance which would grant a license to one business, yet deny the same to a virtually identical one, presents no specified standard of conduct to which a putative business owner may conform. Additionally, similar ordinances in other municipalities have withstood constitutional scrutiny, in part due to the fact that sufficient guidelines were included to guide enforcement officials and affected citizens/businesses. The City of New York, for example, enacted a zoning ordinance that regulates adult bookstores in an analogous fashion, by classifying such stores as those having a "substantial portion" of its "stock -in - trade" in adult items. See City of X Y. v. Les Hommes, 724 N.E.2d 368 (1999). The city's Department of Buildings provided guidance, however, in the form of an "Operations Policy and Procedure Notice . . . to clarify the meaning of the phrase 'substantial portion."' Id. at 370. The administrative regulation provided "'[ifj at least 40 percent of the book store's total stock accessible or available ... is comprised of adult materials, then the book store has a 'substantial portion' of its stock in adult materials."' Id. The appellate court noted "the City's precise guidelines" in construing the plain language of the ordinance in favor of the adult bookstore owner. Id. at 371. Mr. Brad Cazort May 16, 2011 Page 8 The United States Supreme Court addressed a similar issue in Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., in which a village ordinance regulating the sale of drug paraphernalia was held not to be vague, in part because the village attorney issued guidelines explaining relevant portions of the ordinance, 455 U.S. 489 (1982). The Court noted there that "[t]he village inay adopt administrative regulations that will sufficiently narrow potentially vague or arbitrary interpretations of the ordinance, In economic regulation especially, such administrative regulation will often suffice to clarify a standard with an otherwise uncertain scope." Id. at 504, In the absence of any such guidelines from Little hock regarding what actually constitutes a "substantial or significant portion" under § 17-212 of the Code, we are left with a law that is wholly uncertain in scope, as evidenced by how it was applied to the detriment of our client. As a final note, the Arkansas Supreme Court has spoken with regard to the standard of review in this context, declaring Statutes and ordinances imposing licenses and business taxes are generally to be construed liberally in favor of the citizen and strictly against the government, whether state or municipal, especially where. they provide penalties for their violation. Accordingly, if the enactment is not clear and positive in its terms, or if it is reasonably open to different interpretations through the indefmiteness of its provisions, every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied, Arkansas State Licensing Bd. for Gen. Contractors v. Lane, 214 Ark, 312, 317, 215 S.W.2d 707, 710 (1948) (quoting 53 C,J.S., Licenses, § 13). The circumstances of the current dispute certainly illustrate that the City Ordinance regulating SOBs is "reasonably open to different interpretations through the indefiniteness of its provision." The issue is thus ripe for a jury to make a determination as to the application of the ordinance to Mr. Norman; and in construing the indefinite language of the law, the tie goes to the citizen - business owner, At this point, we ask that the City reconsider the matter and approve our client's license application so that he may open and operate his business, as he is legally free to do, If the City stands by its denial, however, we will be left with no option but to press our rights and remedies in a court of law. We are prepared to bring suit for both (1) a declaratory judgment that our client's civil and constitutional rights have been violated, and (2) an award of compensatory damages against the City, as well as attorneys' fees, costs, and all other relief to which our client is entitled. Our client has been denied the privilege of operating his business in the City of Little Rock, and we believe a jury is well -situated to find that, in so doing, the City has acted arbitrarily, capriciously, and in violation of Mr. Norman's rights at law. Mr. Brad C=ort May 16, 2011 Page 9 I appreciate your time and consideration of this matter, If you would like to discuss further, please feel free to contact me at mshamion@ggtbxom or 501.379,1716, Respectfiilly, QUATTLEBAUM, GROOMS TULL & BURROW, PLLC �16 , Inon MNS/lad Enclosures cc: Stephen Norman (w/ encls.) Enclosure Z Mr. Norman's Application Quattlebaum, Groorns, Tull & Burrow A PROPLSS(ONAL Llly ITFD LIA131LITY COMPANY 111 Cwter Strccl Style 1900 P. Clark Jennings Lilft Rock, Arkansas 72201 Wriltr'S Direct Dial cicnnin6s®gglb.com (501) 379-1700 • (501) 379-1701 — I•ax (501) 379-1790 May 27, 2011 City of Little Rock zoning Department V rV 723 West Markham St. Little Rock, AR 72201 RE: Business License Application of One Six One LLC/Mr. Stephen Norman Dear Sir or Madam: Attached please find an application for business license submitted by our client, One Six One LLC/Mr. Stephen Norman d/b/a Adam & Eve. Please take note of the supporting affidavit attached by Mr. Normal), in which he affirms that he intends to operate his Adam & Eve store in a Cashion similar to other general commercial businesses already licensed and operating in Little 'hock, and that he does not intend to open or operate a "sexually oriented business," as defined pursuant to Section 17-212 of the Little Rock City Code. Please direct correspondence regarding the status of this application for business license to both Mr. Normal) at his listed mailing address, 2809 Northridge Dr., White Hall, AR, 71602, and to me at the address listed above, or via email at ejennings@ggtb.com. Thank you. Cordially, QUATTLEBAUM, GROOMS, TULL & BURROW PLLC F. Clark Jenn' s FCJ/slo enclosures cc: Stephen Norman (via electronic mail) Aect #: TreusUty Management Division 100 City Hall Phone: 501-371-4645 Ng #: 500 West Markham Street Phone: 501-371-4438 Class: 1,iitleRock. AR 72241-1497 Fax: .501-371-4509 Amt Due: APPLICATION FOR BUSINESS LiC15W5E THIS FORM WILL BE USED TO CAL CULATE AND ASSESS THE AMOUNT OF TAXES DUE. A BUSINESS LICENSE CANNOT BE ISSUED FOR A NEW BUSINESS OR FOR A CHANGE OF LOCATION UNTIL THIS FORM IS APPROVED BY THE ZONING, SIGN & PROTECTIVE CODES DIVISION LOCATED AT 723 WEST MARKHAMSTREET, 501,371-4844,MPAXAPPIZONINGUSE 50t_375.6863. APPLICATION FOR A HOME -BASED BUSINESS MUST BE MADE IN PERSON AT THE ZONING OFFICE, LOCATED AT 723 W. MARKHAM STREET, A, CHECK ONE: -X NEW BUSINESS CHANGE OF OWNERSHIP _CHANGE OF ADDRESS (EXISTING BUSINESS) 8, CHECK ONE: _SOLE PROPRIETOR PARTNERSHIP _CORPORATION --y-LLC OTHER r C. DATE THAT BUSINESS BEGAN OPERATION AT THE ADDRESS LISTED ONLINE xxx OR DATE OF OWNERSHIP CHANGE: f ZQ des 1 l D. NAME OF BUSINESS: CLNRS'+E�- E. OBA NAME (IF APPLICABLE): _ 1111_ -�' E -- F. NUMBER OF FULL TIME EMPLOYEES, NOT INCLUDING THE OWNER, WORKING AT LOCATION LISTED ON LINE xxx; G. PRE-SE14T BUSINESS LOCATION (PO BOX OR PMB# IS UNACCEPTABLE): t ,Z �Cy , • Ur,zw c I-SiT"f m CITY, STATE, ZIP: Lr] -r y R- 17-0 TELEPHONE: i'G-2 FAX H_ MAILING ADDRESS: _.-—f Li�i_��t¢�C t �7�-c + - CITY, STATE, ZIP: ►� I, PREVIOUS BUSINESS LOCATION (FOR CHANGE OF ADDRESS ON06: CITY, STATE, ZIP: J. STATE OF ARKANSAS SALES TAX NUMBER 4 ?REQUIRED IF YOUR BUSINESS CHARGES SALES TAX) K, OPTIONAL E-MAILADDRESS vN .-Myov%L-e-'k4-yJ4--Qok.Cyrr4� L. BUSINESS OWNER'S NAME t--�o HOMEADDRESS: ':�L t4��t�C, r CITY; �k�� LL STATE -AL ZIP: lea 2 PHONE:, S'kf�- . ^?- • Lqk T FAX: OPTIONAL: RACE:— SEX- M. DESCRIPTION OF BUSINESS: Ec-cm L. / N. DOES YOUR BUSINESS MAINTAIN INVENTORY?�[ YESa"_,NO. 1F YES, LIST THE AMOUNT OF BEGINNING INVENTORY:, 0. DOES YOUR BUSINESS SELL TOBACCO PRODUCTS? YES NO P. DOES YOUR BUSINESS SELL ANY TYPE OF ALCOHOLIC BEVERAGE? YES-�0 IF YES, YOU MUST EITHER ATTACH COPIES OF YOUR ARKANSAS ABC PERMITS TO THIS APPLICATION OR FAX THEM TO (5011371-4569. 11 7 Q, PROPERTY OWNER'S NAME: 9, �/Z1f�5 ��/-- PHON . �Z$L C g "Ax: R. ARE YOU CURRENTLY INVOLVED WITH OR DO YOUR P1A�M' CONSTRUC KON 0 RWODELING ATTHS LOCATION/YES—NO EY,PLAIN:_-µ� - 6�7 t t e S. 00 YOU STORE OR STOCK FLAMMABLE OR EXPLOSIVE MATERIALS? IF YES, NOTE TYPE AND QUANTITIES: NOTE: A FALSE STATEMENT OR MISREPRESENT AT M Y E THE LICENSE NULL AND VOID AND CONSTITUTE FORFEITURE OF ANY FEES PAID. SIGNATURE OF OWNER OR REPRESENTATIVE' ATE/f ■narassnsasary>raaWNPffaamnorIonm am. aax■.a*saf=aaaraarvraaatsrrtlt■ ■assa7rt7easras'aars■s7asrrsa■ FOR OFFICE USE ONLY: PROPERTY IS ZONED APPROVED I DENIED BY: CONDITIONS OR SPECIAL INSTRUCTIONS: ZONING OFFICAL' BUILDING OFFICIAL' DATE' DATE: CONTACTED BY: DATE: ACCOUNT#: ■.■ssasssssrar■■�a■rr+s*israso.a.rrrmor■ gamma .K■MEMO re..r■.rrau..rrrr..v.arae'siaara.IS.aa.A■a<..r PLEASE NOTE; S, IFYOU ARE NO LONGER IN BUSINESS, PLEASE SEND WRITTEN NOTiFICATIONTO OUR OFFICE. 2. IF YOUR BUSINESS LOCATION CHANGES, PLEASE COMPLETE AN APPLICATION FOR CHANGE OF ADDRESS, 3, CITATIONSWILL BE ISSUEO TO BUSINESSES FAILING TO COMPLY WITH THE BUSINESS LICENSE. ORDINANCE. 1UhitoCopy -TreasuryManagement Can ary Copy -Zoning PinkCopy-Customer AFFIDAVIT OF STEPHEN NORMA State of Arkansas § County of Jefferson § 1, Stephen Norman, being of sound mind and personally acquainted with the facts set forth herein, am capable of making this affidavit and having been duly sworn, state the following under oath: I. My name is Stephen Norman, 1 am a resident of Jefferson County, and I reside at 2809 Northridge Drive in White Hall, Arkansas. I have beery granted franchise fights to open a retail location of Adam & Eve Retail stores in Little Rock, Arkansas. 2. Adam & Eve is allorth Carolina corporation, headquartered in Hillsborough, North Carolina. The company currently operates over forty retail stores in fourteen states. 3. Adam & Eve stores operate as upscale, specialty boutique, stores offering tasteful products for both men and women. The vast majority of the products offered in their stores include lingerie and other "soft goods," and the stores also offer patty and "gag gift" items, novelty products, videos, lotions, candles, and other rornance-themed accessories. Adam & Eve stores in other states are generally not classified as "adult" or "sexually oriented" businesses, due to their product mix and square footage allotment for novelty products (see litip://www.adan)evcstoi7es.com/Franchising/FAQ.aspx), In October of 2010, I filed an application for a business license with the City of Little Rock (the "City"), to open and operate an Adam & Eve retail store at 7711 Cantrell Road. Although I later abandoned plans for this location due to business reasons, a City employee verbally informed me that my license application had been approved and that my store would not constitute a "sexually oriented business" under the City Code. S. To my knowledge, the 7711 Cantrell Road location was zoned "C-3" as a general commercial district. 6. It is my understanding that the City allows Cupids Lingerie ("Cupids") to operate two retail locations in Little Rock on property that is zoned C-3 for general commercial businesses. It is my understanding, therefore, that the City does not consider Cupids to be a "sexually oriented business," under Chapter 17 of the City Code. 7. The Adam & Eve store that I am attempting to open and operate at 1510 South University Avenue will be of a substantially similar nature as the two Cupids stores, and will offer a substantially similar product mix and inventory of items for sale. In fact, the most notable difference between our stores is the fact that I intend to offer even less so-called "adult" items than does either Cupids location. It is my understanding that the City previously granted a business license for Cupids to operate as a general commercial business —and not as a "sexually oriented business" -----based upon affirmation from the owner that less than 351/o of the store's retail floor space would be dedicated to adult material. In contrast, the Adam & Eve store 1 intend to open will have less than 251/o of its Moor space dedicated to such adult material. It is also my understanding that the City granted the business license to Cupids and allowed it to operate as a general commercial business on C-3 zoned property, when the City was aware that Cupids offered "peep show" booths for on -site viewing of sexually explicit material. I do not intend to construct or ever operate any such booths in the Adam & Eve store. 10, I do not intend to operate my store in any manner in which I believe it would be deemed a "sexually oriented business," as defined by the City Code. I do not intend to dedicate a substantial or significant portion of my stock -in -trade or interior floor space to the sale of adult material. 11. I have already secured a lease agreement for the store at 1510 South University Avenue, and am awaiting approval of my license application from the City so that I may complete my build -out and open the store. I have read the foregoing statements and said statements are true and accurate to the best of my knowledge and belief. Y� A In witness whereof, I hereunto set my hand this day of May, 2011. 2 SUBSCRIBED AND SWORD before me on this day of May, 2011. Notary Public in and for the Stale of Arkansas My commission expires J Jl�' 0 1.� CARt?16 BUTLER Noiofyru 1lc.A9kansos CSeVa[ond County My comm4sslon Expfrea f.C�iP-UI-2 mm Coisslan V 123627 a Enclosure 3 Affidavit of David J. Deegan AFFIDAVIT QF1_A.YID 3, I(EEGAN State of North Carolina § County of Orange § I, David J. Keegan, being of sound mind and personally acquainted with the facts set forth herein, aiu capable of making this affidavit and having been duly sworn, state the following under oath: My name is David Keegan and I am the General Manager of Adam & Eve Franchise Corporation ("AEFC"), a division of PHE, Inc. PHE, Inc., d/b/a Adam & Eve, is a North Carolina corporation with its headquarters in Hillsborough, North Carolina, 2. AEFC is responsible for, and as General Manager I oversee, the approval of all new franchisees for Adam & Eve stores and the supervision of and support for all new franchise operations. 1 To date, Adam & Eve operates 41 franchise retail locations in 13 states, all of which are considered "specialty boutiques" or "general commercial businesses" under relevant city and/or state zoning ordinances, 4, Not a single one of the 41 operating Adam & Eve franchise locations are considered "sexually oriented businesses" under relevant city and/or state zoning ordinances. 5. No Adam & Eve franchise location is allowed to dedicate more than 35% of its retail floor space to adult material, as generally defined by relevant local ordinances. Further, where applicable local ordinances set a lower threshold percentage for what will constitute a "sexually oriented business," our franchisees are required to operate in accordance with that lower percentage so as not to be considered a "sexually oriented business" tinder the local ordinance. 6. This requirement is included in the Adam & Eve Franchise Agreement, to which all franchisees are bound. 7. Mr. Stephen Norman, as an approved franchisee in Little Rock, Arkansas, was aware of and bound by this agreement. 8. In conversations with Mr. Norman during the franchise approval process, 1 made hirn aware of the fact that none of our locations were considered "sexually oriented businesses" and that he would be expected to comply with applicable City of Little Rock ordinances, so that his franchise location would not be considered a "sexually oriented business." I have read the foregoing statements and said statements are true and accurate to the best of my knowledge and belief. In witness whereof, I hereunto set my hand this i i day of July, 2011. DAVID J. ,1✓GAN P q'k SUBSCRIBED AND SWORN before me this day of July, 2011. My commission expires; A,�, lum44 - -- Notary I u lic in and for the at of North Carolina 1, Nofary Public sr+ Alorrlonce C01]n1y Y �ommisslon ExplrssZF A10/ 1 2/201 d J ! � -� •1 CAR0��,1` 1,;j,rf f 11151 L0\x Enclosure 4 Photos of Houston, TX franchise Enclosure 5 Excerpts from franchise materials 0 i Y STORE SIZE AND LAYOUT Our typical size is 2,500-4,000 square feet. In most stores, our products are arranged by departments * that include Lingerie (regular size and plus size); Club and Dance Wear; Hosiery, Shoes, and Boots; Men's ! Loungewear; Adam & Eve branded merchandise; Swimwear and Coverups (offered seasonally and optionaily); Accessories, Gifts, Lotions, Oils, Books, and Games; Novelties (gag gifts and adult-themed toys); and Videos & DVDs (educational/self-help and mature). STORE DESIGNS WITH SHOWROOM LAYOUT Approximate Inventory Analysis by Store Square Footage Lingerie 35% Non -Adult Gift/Accessory Items 20% Novelty 'Ifems—Adult Themed 14% Dance and Clubwear 10% Video Product 8% Men's items 5% Shoes/Heels 3-5% Swimwear/Cover-ups 0-2% Backroom/office/storage 3-7% CUSTOMER DEMOGRAPHICS Gender: both female and male (particularly couples) with an increasingly higher number of women ,Age, 7he range is 18-80, but the highest concentration is 25-59 Income level: The range is from average to above average (many of our products are discretionary items such as lingerie) • Education: Most of our customers are high-school or college graduates 7 • _ J OUR PRODUCTS We offer a wide array of soft goods, which comprise more than 70 percent of our store showroom. Items include lingerie (including plus -size, or diva), club and dance wear, hosiery, shoes, men's loungewear, long gowns, robes, chemises, bustlers, baby dolls, teddies, costumes, and more In a broad range of style. Our soft goods can be glamorous or subtle, and our lingerie is I r available in exquisite, high -quality fabrics with many t style and color choices. We also carry special products for the bride-to-be with styles in silk, satin, and lace — and much more to make for a memorable honeymoon. Our Party Goods and Bachelor/Bachelorette store sec- tions offer fun items and accessories for those getting ready for a special occasion such as a birthday, wed- ding, anniversary (or even a divorce party). And for couples planning special occasions, we offer lotions, oils, candles, fragrances, and other romance -enhancing accessories. We source our products from some of the premiere f-- r names in the industry, including Dreamgirl, Int'l, Shirley of Hollywood, Coquette, Pleaser Elie, and many other nationally recognized manufacturers, distributors, and vendors. 9 2 571 11 MORE ABOUT ADAM & EVE � ■ Our roots run deep. The birth of Adam & Eve goes back ■ four decades, when a Harvard graduate and Peace Corps veteran named Phil Harvey along with partner Dr.Tiimothy ■ A Black began promoting birth -control devices through non- medical channels such as mail order. Phil combined his ■ `. natural business savvy with expertise gained from earning I a Master's degree in Public Health Administration from the l ` University of North Carolina. -„ I Encouraged by the public's posRive response to condoms by mail. Phil explored ways to provide American adults with ■ carefully selected materials also by mail.Thus, the birth ofj ■ our company, Adam & Eve. ■ Today, we are a $90 million business based in Hillsborough, North Carolina. And Phil remains a key partner. He divides ` ■ his time between our company and DKT International, it his Washington, D.C.-based business that serves thirteen -� third -world countries with family planning services, health care, and sex educational materials. DKT ranks among the !, ■ world's leading AIDS prevention organizations. The g rowth of Adam & Eve over the past few decades { ■ has been nothing short of phenomenal. As a leading marketer of sex positive materials, we sell only top-quafity ■ merchandise and maintain the highest standards in operations, products, and customer service. We emphasize ■ customer satisfaction by performing regular qualify- assurance inspections, offering money -back guarantees, - ■ and responding to any and all customer questions and = comments, Today, Adam & Eve employs nearly 350 men and women ti *� at its Hillsborough headquarters --and we pride ourselves Ili r in being outstanding corporate citizens. �r • In 2005 and 2006, we were voted Employer of the Year in -� the heavily populated Hillsborough/Orange County. ; -R - In 2008 Adam & Eve was voted Business of the Year by '4111 the Hillsborough Chamber of Commerce. a t� In 2010 Adam & Eve was awarded the AVN Lifetime Achievement Award. f Currently there are over 22 franchise operators operating 42 stores in 13 Atates. 10 Item # 7 Copy of City of LR Ordinance Chapter 17, Article VII Sections 17-211 thru 17-216 Sexually Oriented Businesses LICENSES, TAXATION AND MISCELLANEOUS BUSINESS REGULATIONS § 17-212 'ii) Be made available- for use in any leg article to restrict or deny access by adults to proceeding should such become necess y. sexually oriented entertainment to their intended market, unless otherwise restricted by law. (e) is section shall not apply to: (Ord. No. 15,629, § 1, 1-17-89) (i) S es in a series of scrap metal urchase tradqactions made pursuant toA contract; (ii) r s tions in which a crap metal ecycler urchases, Iran ers, or other- wise cony s scrap meta o another scrap metal recy r if the chaser or trans- feree obtain a bi of sale or similar document at t t' e of transfer; or (iii) Purchases involIg only beverage con- tainers; or (iv) Ferrous me ls- (Ord. No. 15,646, 1, 2-21-89, Ord. No. 20,013, § 2, 8-4-08) Sec. 17 Any p son convicted of a violation ofViy of the ovisi9fis of this division shall be punl as ovi d in section 1-9. r No. 15,646, § 1, 2-21-89) 17-204-17-210. Reserved. ARTICLE VII. SEXUALLY ORIENTED BUSINESSES* Sec. 17-211. Purpose and intent. It is the purpose of this article to regulate sexually oriented businesses to promote the health, safety and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the continued concentra- tion of sexually oriented businesses within the city. The provisions of this article have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this *Editor's note Ord. No. 15,629, §§ 1-6, adopted Jan. 17, 1989, did not specifically amend the Code; hence, codifica- tion as Art. VII, §§ 17-211-17-216, was at the discretion of the editor. Sec. 17-212. Definitions. [The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:] (1) Adult arcade. Any place to which the public is permitted or invited wherein coin -operated or slug -operated or electron- ically, electrically, or mechanically con- trolled image -producing devices are main- tained to show images to five (5) or fewer viewers at one time, and where the im- ages so displayed are distinguished or characterized by the depicting or describ- ing of "specified sexual activities" or "spec- ified anatomical areas." (2) Adult bookstore or adult video store. A commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consid- eration any one or more of the following: Supp. No. 54 996.1 a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videocassettes, or video reproductions, slides or other visual representations which depict or describe "specified sexual activi- ties," or "specified anatomical ar- eas;" or b. Instruments, devices, or parapherna- lia which are designed for use in connection with "specified sexual ac- tivities." (3) Adult cabaret. A nightclub, bar, restau- rant, or similar commercial establish- ment which regularly features: a. Persons who appear in a state of nudity; or b. Live performances which are charac- terized by the exposure of "specified anatomical areas" or by "specified sexual activities;" or § 17-212 LITTLE ROCK CODE C. Films, motion pictures, videocas- settes, slides or other photographic reproductions which are character- ized by the depiction of "specified sexual activities" or "specific anatom- ical areas." (4) Adult motion picture theater. A commer- cial establishment where, for any form of consideration, films, motion pictures, vid- eocassettes, slides, or similar photographic reproductions are regularly shown which are characterized or distinguished by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." (5) Adult theaters. A theater, concert hall, auditorium, or similar commercial estab- lishment, which regularly features per- sons who appear in a state of nudity or live performances which are character- ized by the exposure of "specified anatom- ical areas" or "specified sexual activities." (6) Nudity or state of nudity. a. The appearance of the bare human buttock, anus, male genitals, female genitals, or female breast. b. Astate of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast. (7) Person. An individual, proprietorship, part- nership, corporation, association, or other legal entity. (8) Semi-nude. A state of dress in which cloth- ing covers no more than the genitals, Supp. No. 54 996.2 LICENSES, TAXATION AND MISCELLANEOUS REGULATIONS § 17-214 pubic region and/or the female breast, as gion, buttock, and female breast be - well as portions of the body covered by low a point immediately above the supporting straps or devices. top of the areola; and (9) Sexually oriented business. An adult ar- cade, adult bookstore or adult video store, adult cabaret, adult motion picture the- ater, or adult theater which: a. Devotes a significant or substantial portion of its stock -in -trade or inte- rior floor space to; b. Receives a significant or substantial portion of its revenues from; or C. Devotes a significant or substantial portion of its advertising expendi- tures to the promotion of, the sale, rental, viewing (for any form of consideration) of inventory, merchandise, or performances that are characterized by "specific sexual activities" or "specified anatomical areas." An establishment may have other principal business purposes that do not involve the offering for sale, rental or viewing of materials, or perfor- mances, depicting or describing "specified sexual activities" or "specified anatomical areas", and still be categorized as an adult arcade, adult bookstore or adult video store, adult cabaret, adult motion picture theater, or adult theater. Such other busi- ness purposes will not serve to exempt such establishment form being catego- rized as a sexually oriented business so long as the provisions of this definition are otherwise met. (10) Specified sexual activities. a. Human genitals in a state of sexual stimulation or arousal; b. Acts of human masturbation, sexual intercourse, or sodomy; C. Fondling or other erotic touching of human genitals, public region, but- tock or female breast. (11) Specified anatomical areas. a. Less than completely and opaquely covered human genitals, public re- Supp. No. 44 997 b. Human male genitals in a discern- able turgid state, even if completely and opaquely covered. (12) Residential district. Any land within the city limits of Little Rock zoned as R-1, R-2, R-3, R-4, MF-6, MF-12, MF-18, MF- 24, R-5, R-6, R-7, R-7A, HR, MR, HDR or PRD, as defined by this Code. (Ord. No. 15,629, § 2, 1-17-89; Ord. No. 18,791, § 1, 12-3-02) Cross reference —Establishment of zoning districts, § 36- 176 et seq. Sec. 17-213. Classification. Sexually oriented businesses are classified as follows: (1) Adult arcade; (2) Adult bookstores or adult video stores; (3) Adult cabarets; (4) Adult motion picture theaters; (5) Adult theaters. (Ord. No. 15,629, § 3, 1-17-89) Sec. 17-214. Location of sexually oriented businesses. (a) A person commits an offense if he operates or causes to be operated a sexually oriented business within seven hundred fifty (750) feet of: (1) A church or other religious facility; (2) A public or private elementary, secondary or post -secondary school, or daycare cen- ter; (3) Aboundary of a residential zone (R-1, R-2, R-3, R-4, MF-6, MF-12, MF-18, MF-24, R-5, R-6, R-7, HR, MR, HDR or PRD) or any single-family or multiple -family resi- dential use; (4) A public park; (5) A hospital or other medical facility; or § 17-214 LITTLE ROCK CODE (6) Properties listed on the National Register of Historical Places or local historic dis- tricts as identified by the Arkansas His- toric Preservation Program. (b) A person commits an offense if he causes or permits the operation, establishment, or mainte- nance of a sexually oriented business within seven hundred fifty (750) feet of another sexually ori- ented business. (c) For the purpose of subsection (a), measure- ment shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, residential lot, hospital or other medical facility, or properties listed on the National Historic Register or local historic dis- tricts as identified by the Arkansas Historic Pres- ervation Program. (d) For the purposes of subsection (b) of this section, the distance between any two (2) sexually oriented businesses shall be measured in a straight line without regard to intervening structures or objects, from the closest exterior wall of the struc- ture in which each business is located. (Ord. No. 15,629, § 4, 1-17-89; Ord. No. 18,906, § 1, 8-4-03) Sec. 17-215. Nonconforming sexually ori- ented businesses. (a) Any sexually oriented business lawfully operating on January 18, 1989, that is in violation of section 17-214 of this article shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed three (3) years, unless sooner terminated for any reason or discontinued for a period of ninety (90) days or more. However, those sexually oriented businesses obligated by a written lease (executed prior to the passage of this article) that exceeds three (3) years from the effective date of this article, or whose activity involves the investment of money in leasehold or improvements such that Supp. No. 44 998 a longer period is necessary to prevent undue financial hardship, are eligible for review by the planning commission for a reasonable extension. Such nonconforming uses shall not be in- creased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within seven hundred fifty (750) feet of one an- other and otherwise in a permissible location, the sexually oriented business which was first estab- lished and continually operating at a particular location is the conforming use and the later - established business(es) is nonconforming. (b) A sexually oriented business lawfully oper- ating as a conforming use is not rendered a nonconforming use by the subsequent location of a church, public or private elementary or second- ary school, public park, residential district or residential lot within seven hundred fifty (750) feet of the sexually oriented business. This provi- sion applies only to an ongoing sexually oriented business, not to a sexually oriented business that has been terminated for any reason or discontin- ued for a period of ninety (90) days or more subsequent to the location of the church, public or private elementary or secondary school, public park, residential district, or residential lot. (c) Any sexually oriented business that is an- nexed into the city, or that is operating lawfully prior to the effective date of an amendment to the provisions of section 17-214 but violates section 17-214 after the effective date of such amend- ment, shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed ninety (90) days. How- ever, any sexually oriented business covered by this subsection whose activity involves the invest- ment of money in leasehold or improvements that cannot be used for any other purpose than those defined in section 17-212, and a longer period of time to operate is necessary to prevent undue financial hardship, are eligible for a prompt re- view by the planning commission for a reasonable extension of the nonconforming status, provided that the extension shall not be increased by more than a period of two (2) years from the effective date of the annexation, or of the amendment to section 17-214 which rendered the business non- LICENSES, TAXATION AND MISCELLANEOUS REGULATIONS § 17-216 conforming. To obtain such review, the sexually oriented business must file its request for review during the initial ninety -day amortization period, and it shall be permitted to operate until the request for an extension is decided by the plan- ning commission, provided that this period of operation shall not exceed two (2) years from the effective date of the annexation, or of the amend- ment to section 17-214 which rendered the busi- ness nonconforming. (Ord. No. 15,629, § 5, 1-17-89; Ord. No. 18,791, § 2, 12-3-02) Sec. 17-216. Enforcement. (a) Any person violating any part of this arti- cle, upon conviction, is punishable by a fine not to exceed five hundred dollars ($500.00). (b) If the violation is, in its nature, continuous in respect to time, the penalty for allowing the continuance thereof is a fine not to exceed two hundred fifty dollars ($250.00) for each day that the same is unlawfully continued. (c) A person who operates or causes to be operated a sexually oriented business in violation of section 17-214 of this article will be subject to a suit for injunction as well as prosecution for criminal violations. (Ord. No. 15,629, § 6, 1-17-89) Supp. No. 44 999 [The next page is 10211 Item # 7 Z-8681 1510 S. University Avenue Supplemental Information Submitted by the Applicant Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY I I I Center Street Suite 1900 Little Rock, Arkansas 72201 (501) 379-1700 • (501) 379-1701—Fax Michael N. Shannon mshannon@qgtb.com Licensed in Arkansas, Missouri and Kansas June 28, 2011 City of Little Rock Board of Directors c/o Mr. Bruce Moore, City Manager City Hall, Room 203 500 West Markham Street Little Rock, AR 72201 Direct Dial 501-379-1716 Direct Fax 501-379-3816 Via Hand Delivery City of Little Rock Board of Zoning Adjustment Via Hand Deliver c/o Mr. Dana Carney 723 West Markham Street Little Rock, AR 72201 Re: Appeal from denial of business license application of Stephen Norman, d/b/a Adam & Eve stores Dear Mr. Moore and Mr. Carney, We represent Stephen Norman in the above -referenced matter. Please accept this letter as notice of appeal from the City of Little Rock's denial of Stephen Norman's, d/b/a Adam & Eve stores, application for a business license. Our client, Mr. Norman, seeks to pursue his available legal rights and remedies in this matter and, accordingly, we hereby request a hearing at the earliest possible date before the appropriate body of the City, whether that is the Board of Directors or the Board of Zoning Adjustment. The factual circumstances underlying this matter are better set forth in a May 16, 2011 letter we sent on Mr. Norman's behalf to each of the City Directors, an example of which is enclosed for your reference. In sum, Mr. Norman requested a business license to open a franchise location of Adam & Eve stores, an upscale specialty boutique retailer. The City, through officials in its Zoning Department, has denied Mr. Norman's application for a business license on the ground that his store will constitute a "sexually oriented business" under § 17-211, et seq., of the City Code, and, therefore, violates the zoning ordinance at the intended location. After we sent the enclosed May 16, 2011 letter, Mr. Norman filed a renewed and clarified application for a business license on May 31, 2011. At this date, this application remains Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 2 pending before the City's Zoning Department. Tom Carpenter instructed us via a June 27 email to Mike Shannon, however, to move forward with this notice of appeal in order to be put on the agenda for the July 25 meeting of the Board of Zoning Adjustment. A copy of Mr. Carpenter's email to Mr. Shannon is enclosed with this letter. As set forth in the May 16, 2011 letter and in the affidavit from Mr. Norman that accompanied his renewed application, we believe the application for a business license was wrongfully denied. In an attempt to follow proper procedure and exhaust our administrative remedies before pursuing further legal recourse, if necessary, we now seek a final determination from the appropriate administrative and/or quasi-judicial body or subdivision of the City. It is unclear, however, to whom we should address our appeal. Section 36-69 of the City Code provides that the Board of Zoning Adjustment is authorized "to hear appeals from the decision of the administrative officers in respect to the enforcement and application of [the zoning] chapter; and may affirm or reverse, in whole or in part, said decision of the administrative officer." As the denial of Mr. Norman's business license appears to have been a decision made by administrative officials in the City's Zoning Department, we believe the Board of Zoning Adjustment may be the proper forum to hear our appeal. We are also aware, however, that City Code Section 17- 211, et seq., regulating the operation and placement of sexually oriented businesses, is an independent section that technically lies outside of the Zoning chapter of the City Code. Accordingly, the City Code does not give clear direction on how to properly appeal the denial of an application for a business license, pursuant to Section 17-211, et seq. We ask that the City clarify the process of appeal and render a decision as to which body is the appropriate forum to hear our appeal. Applicalion.lCover L efter for Hearin,- Before the Board o 'Zo n in,,,.4 djusImenI Presuming that the Board of Zoning Adjustment is the proper forum for this matter, please accept this letter as the required "cover letter" detailing our client's proposed business use and justification under the Zoning Ordinance pursuant to the Application for Non -Residential Zoning Variance. We submit this letter and all accompanying materials as part of our appeal from the decision of the administrative officers in respect to the enforcement and application of the Zoning Ordinance and of the "sexually oriented business" ordinance, codified at Section 17- 211, et seq. We submit this cover letter and application materials in advance of the June 28, 2011, filing deadline in order to be considered for the agenda of the July 25, 2011, meeting of the Board of Zoning Adjustment. The Application for Non -Residential Zoning Variance lists several requirements that must accompany the application to the Board of Zoning Adjustment. Where possible, we have in good faith complied with the necessary requirements. Due to the unique nature of this appeal, however, we do not believe that compliance with all of the requirements is feasible or even necessary. Of course, we are not asking for a "variance" from any zoning or other regulation. Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 3 Rather, we believe that the decision of the administrative officers that Mr. Norman's business should be classified as a "sexually oriented business" is erroneous under the facts, the language of the ordinance, and the City's historical interpretation of the ordinance. Accordingly, the applicable requirements for Mr. Norman's appeal are provided, as follows: ■ A cover letter detailing the applicant's proposal and providing his justification and reasons for requesting a variance from the requirements of the Zoning Ordinance — Please accept this letter as the required cover letter ■ Six (6) copies of a site plan and survey, prepared by a professional surveyor or professional engineer, which shows all existing and proposed improvements properly dimensioned and labeled — Not Applicable. Mr. Norman is appealing the denial of his business license application and not requesting an ordinary zoning variance for physical changes or improvements to the property in question. A site plan and surveys are, therefore, not necessary or helpful to the Board's adjudication of this matter ■ Payment of a filing fee no later than the published docket closing date — Enclosed ■ The Application for Zoning Variance — Enclosed Further, the Application for Non -Residential Zoning Variance notes that, upon application, there are several further requirements and steps necessary for the zoning variance process —a notice form to be circulated to neighboring property owners; an affidavit and supporting exhibits (mailing receipts, certified abstract list of property owners, etc.); and, a sign to be posted on the applicant's property indicating that a zoning variance is being considered. As set forth above, we do not believe these elements are applicable to Mr. Norman's appeal because he is not requesting a variance from any ordinance; rather, he is seeking a determination that the sexually oriented business ordinance does not apply. However, if the City believes such requirements must be fulfilled, please explain how the City believes Mr. Norman should comply with that process. Again, please accept this letter and accompanying materials as Mr. Norman's appeal from the decision by the administrative officials in the City's Zoning Department to deny his application for a business license. By this letter and application, we appeal the decision to the Board of Zoning Adjustment and request that this matter be included on the agenda for the July 25, 2011 meeting of the Board of Zoning Adjustment. Alternatively, if the City of Little Rock Board of Directors is a more proper forum to address this matter, we request that we be heard before the Board of Directors at its next available meeting. Please advise accordingly at your earliest convenience, as time is of the essence in this appellate process. Thank you for your time and consideration. If you have question or would like to discuss Mr. Bruce Moore Mr. Dana Carney June 28, 2011 Page 4 this matter, or if we can provide any further material to be in compliance with the necessary procedures to appeal this matter, please contact me at 501.379.1716 or mshannon@qgtb.com. Respectfully, QUATTLEBAUM, GROOMS TULL & BURROW, PLLC f 7 �—chael • Shannon MNS/lad Enclosures cc: Mr. Tom Carpenter, Esq. (via hand delivery) Application for Zoning Variance ,r,e INBOUND N : FAX R TIME RECEIVED Tune 28, 2011 2:56:45 PM CDT 06/28/2011 02:58 8706194869 1mm I REMOTE CSID 8706194869 711 1 T011f1R DURATION PAGES STATUS 38 1 Received d C. 03/01/10 APPLICATION FOR ZONING VARJ[.A.NCE FILE NO. 2r_OF FCASE ADJUSTMENT MEETING DATE DOCKET FOR: , 20„rAT FM. licatibn is hereby made to the Little Rock Board of Adjustment pursuant to Act 186 of 1957. Acts of alas as amended, and Cbzpter 36 of tiu: Little Ro&. Ark. Rey. Code (1988), as amended, roqucat.ing a thet described property: �following $: ISkz �ltilfri44- tS +rZC� A — r AI ESC3'WTION: !a t Is property is vested irs 4*0. 5 err prdyiscurrently ratted: /�J�Vstrjct and 11wos as follows am requostcd; (1) �'y } The provisions of Section of the J.ittic Rock Code of Ordinances to -gear Y R,Y (2) The provisions of Section —of the Little Rock Code of 0T&V' rtces to permit: (3) lbo provisions of Section —of of the Little Rock Code of Ordiumcbs to permit: 1' 1 exit se ofProptm: Uso of Property: P Deed } ze era no private xeswctians pertaizuug to the proposed uWdevaloptnent of this property. ( ear appl t feels that strict enforcement of these provisions would be a hardship and is rLquesting vmdance(s) ix 1 s tar n fur the fulluwingruasun(E): + It hm by agreed that the required filing ft will be id immediately after filing and acceptance of this 1 caw (owner or authorized ageat7: �Addres)p (Telephone -Bus, and Horne) kRDIOF ADJUSTMENT Appfovcd:20 Denied: 20 ditto of approval• r S atur of Board Secretary or Authoxized Agent R I e 1 EE: (Collectors Stamp Here) PAGE 01/01 ' �r -F1tiak %C+-Lt+c M June 27 enaacilftorn Tow Carpenter to Male Shannon Clark Jennings From: Michael N. Shannon Sent: Monday, June 27, 2011 3:49 PM To: FCJ; JCM Subject: Fwd: Norman Business License Application Mike Shannon 501-379-1716 mshannon(a),g Rtb. com Begin forwarded message: From: "Carpenter, Tom" <TCarpenter o,littierock.org> Date: June 27, 2011 3:04:15 PM CDT To: "Michael N. Shannon" <mshannon&tb.com> Cc: "Bozynski, Tony" <TBo nski littlerock.or >, "Carney, Dana" <DCarney@littlerock.org>, "Mann, Bill" <BMann(@Rittlerock.org>, "Engster, Bonnie" <BEn ster littlerock,or > Subject: RE: Norman Business License Application Dear Michael, Get on the agenda. The permit, as I understand, is not going to be granted. There is some question in Planning's mind as to whether the Board of Adjustment can address the issue. But, in terms of timing you need to move ahead. If the matter does not belong on the agenda, we will address that issue. TONY/DANA — If you have another viewpoint than the one I just expressed, which is what I gleaned from comments late last week, please let us know. 1111671111 Tom, just checking again. Of course, I'd like for the permit to be granted, but if it's going to be denied, I'd like to get on the next BZA agenda and I think the deadline is tomorrow. Michael N. Shannon mshannon@gptb.com 501.379.1716 1 Fax:501.379.3816 Mr. Norman's Recent Business License Application Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY J 1 I Center Street Suite 1900 F. Clark Jennings Little Rock, Arkansas 72201 Writer's Direct Dial cjennings©ggtb.com (501) 379-1700 • (501) 379-1701 — Fax (501) 379-1790 May 27, 2011 City of Little Rock Zoning Department VI- A gAIVD DE.uaff 723 West Markham St. Little Rock, AR 72201 RE: Business License Application of One Six One LLC/Mr. Stephen Norman Dear Sir or Madam: Attached please find an application for business license submitted by our client, One Six One LLC/Mr. Stephen Norman d/b/a Adam & Eve. Please take note of the supporting affidavit attached by Mr. Norman, in which he affirms that he intends to operate his Adam & Eve store in a fashion similar to other general commercial businesses already licensed and operating in Little Rock, and that he does not intend to open or operate a "sexually oriented business," as defined pursuant to Section 17-212 of the Little Rock City Code. Please direct correspondence regarding the status of this application for business license to both Mr. Norman at his listed mailing address, 2809 Northridge Dr., White Hall, AR, 71602, and to me at the address listed above, or via email at ejennings@ggtb.com. Thank you, Cordially, QUATTLEBAUM, GROOMS, TULL & BURROW PLLC F. Clark Jenn' s FCJ/slo Enclosures cc: Stephen Norman (via electronic mail) Management Division 100 City Hall Phone; 501-371-4645 500 West Markham Street Phone: 501-371-4438 T,RtIcRock. AR 72201-1497 Fax: ,501-371A569 APPLICATION FOR BUSINESS LICENSE Acet #: NB #; Class• Amt Due; THIS FORM WILL BE USED TO CALCULATE AND ASSESS THE AMOUNT OF TAXES DUE. A BUSINESS LICENSE CANNOT BE ISSUED FOR ANEW BUSINESS OR FOR A CHANGE OF LOCATION UNTIL THIS FORM IS APPROVED BY THE ZONING, SIGN & PROTECTIVE CODES DIVISION LOCATED AT T23 WEST MARKHAYJ STREET, 501-371-4844. T'O FAX APPLICATION DIRECTLY TO ZONING USE 501-371-8863, APPLICATION FORA HOME -BASED BUSINESS MUST BE MADE IN PERSON AT THE ZONING OFFICE, LOCATED AT 723 W, MARKHAM STREET. A. CHECK ONE: _ANEW BUSINESS CHANGE OF OWNERSHIP CHANGE OF ADDRESS (EXISTING BUSINESS) B. CHECK ONE: _SOLE PROPRIETOR PARTNERSHIP CORPORATION _y__LLC OTHER C. DATE THAT BUSINESS BEGAN OPERATION AT THE ADDRESS LISTED ON LINE xxx OR DATE OF OWNERSHIP CHANGE: D. NAME OF BUSINESS: O E. DBA NAME (IF APPLICABLE): AOAM F. NUMBER OF FULL TIME EMPLOYEES, NOT INCLUDING THE OWNER, WORKING AT LOCATION LISTED ONLINE xxx: 3 G. PRESE14T BUSINESS LOCATION (PO BOX OR PMB# IS UNACCEPTABLE); l0 S • Ural F�-Si IDS . , CITY, STATE, ZIP: L� "�'�� t� ��- 'X2 TELEPHONE.-- -FAX'— H. MAILING ADDRESS: CITY, STATE, ZIP: vci �-kku_ kt.D 1. PREVIOUS BUSINESS LOCATION (FOR CHANGE OP ADDRESS ONL)j: CITY, STATE, ZI J. STATE OF ARKANSAS SALES TAX NUMBER# (REQUIRED IF YOUR BUSINESS CHARGES SALES TAX) K. OPTIONAL- E-MAIL ADDRESS G''� "v W ° v (�� 0- 0�. C � ',c L. BUSINESS OWNER'S NAME:',' �,�N di'g�ly HOME ADDRESS:t _ �� 'lwk�R7,2- CITY: L+-'-%Ak— . 1�kru. STATE:. tL ZIP; ''4((0D 2 PHONE: -(-4,2. • 1 k� FAx OPTIONAL RACE:_ SEX;- M. DESCRIPTION OF E'0%k LI - C' L-t N. DOES YOUR BUSINESS MAINTAIN INVENTORY? V- 0. DOES YOUR BUSINESS SELL TOBACCO PRODUCTS? YES -'---NO, IF YES, LIST THE AMOUNT OF BEGINNING INVENTORY: OD ---YESNO P. DOES YOUR BUSINESS SELL ANY TYPE OF ALCOHOLIC BEVERAGE? YES ✓NO IF YES, YOU MUST EITHERATTACH COPIES OF YOUR ARKANSAS ABC PERMITS TO THIS APPLICATION OR FAX THEM TO (501) 371-4569. Q. PROPERTY OWNER'S NAME; PN, PHONE.-"? V2�1 ,??Cg 'AX: R. ARE YOU CURRENTLY INVOLVED WITH OR DO YOU PLAN ANY CONSTRUCTION OR REMODELING AT THIS LOCATION _&/YES_NO EXPLAIN: 1st - OLcT e e� rr'i2'�r_cI1�e c' kyl nr� S. DO YOU STORE OR STOCK FLAMMABLE OR EXPLOSIVE MATERIALS? h o IF YES, NOTE TYPE AND QUANTITIES: NOTE: A FALSE STATEMENT OR MISREPRESENTATI Y M E THE LICENSE NULL AND VOID AND CONSTITUTE FORFEITURE OF ANY FEES PAID. SIGNATURE OF OWNER OR REPRESENTATIVE= DATE: laaaa:slaaaaslalaaxaa>,>rarasaas■ la:lraaaaaaraaaaasalaaaalraa>1111 ism■11-auasigma saa4laalaaaraaa FOR OFFICE USEONLY: PROPERTY IS ZONED: APPROVED I DENIED BY: CONDITIONS OR SPECIAL INSTRUCTIONS: ZONING OFFI BUILDING OFFICIAL: UA I t; CONTACTED BY: DATE: ACCOUNT#. a fa aa l■ aal a aaf as a1aaa a r aa1 IN a a a aIa1 aI a a1a If ails as as ■ am aas a1a oraa11r aft 9a aalI INS I'm &11 $1 al a a a'a a ar ■ PLEASE NOTE: 1. IF YOU ARE NO LONGI R IN BUSINESS, PLEASE SEND WRITTEN NOTIFICATION TO OUR OFFICE. 2. IFYOUR BUSINESS LOCATION CHANGES, PLEASE COMPLETE ANAPPLICATION FOR CHANGE OF ADDRESS. 3. CITATIONS WILL BE ISSUED TO BUSINESSES FAILING TO COMPLY WITH THE BUSINESS LICENSE ORDINANCE. White Copy —Treasury Management CanaryCopy— Zoning PinkCcpy—Customer AFFIDAVIT OF STEPHEN NORMAN State of Arkansas § County of Jefferson § I, Stephen Norman, being of sound mind and personally acquainted with the facts set forth herein, am capable of making this affidavit and having been duly sworn, state the following under oath: 1. My name is Stephen Norman, I am a resident of Jefferson County, and I reside at 2809 Northridge Drive in White Hall, Arkansas. I have been granted franchise rights to open a retail location of Adam & Eve Retail stores in Little Rock, Arkansas. 2. Adam & Eve is a North Carolina corporation, headquartered in Hillsborough, North Carolina. The company currently operates over forty retail stores in fourteen states. 3. Adam & Eve stores operate as upscale, specialty boutique stores offering tasteful products for both amen and women. The vast majority of the products offered in their stores include lingerie and other "soft goods," and the stores also offer party and "gag gift" items, novelty products, videos, lotions, candles, and other romance-themed accessories. Adam & Eve stores in other states are generally not classified as "adult" or "sexually oriented" businesses, due to their product mix and square footage allotment for novelty products (see http://www.adamevestores.com/Franchising/FAQ.aspx). 4. In October of 2010,1 filed an application for a business license with the City of Little Rock (the "City"), to open and operate an Adam & Eve retail store at 7711 Cantrell Road. Although I later abandoned plans for this location due to business reasons, a City employee verbally informed me that Amy license application had been approved and that my store would not constitute a "sexually oriented business" under the City Code. S. To my knowledge, the 7711 Cantrell Road location was zoned "C-3" as a general commercial district. 6. It is my understanding that the City allows Cupids Lingerie ("Cupids") to operate two retail locations in Little Rock on property that is zoned C-3 for general commercial businesses. It is my understanding, therefore, that the City does not consider Cupids to be a "sexually oriented business," under Chapter 17 of the City Code. 7. The Adam & Eve store that I am attempting to open and operate at 1510 South University Avenue will be of a substantially similar nature as the two Cupids stores, and will offer a substantially similar product mix and inventory of items for sale. 8. In fact, the most notable difference between our stores is the fact that I intend to offer even less so-called "adult" items than does either Cupids location. It is my understanding that the City previously granted a business license for Cupids to operate as a general commercial business —and not as a "sexually oriented business" —based upon affirmation from the owner that less than 35% of the store's retail floor space would be dedicated to adult material. In contrast, the Adam & Eve store I intend to open will have less than 25% of its floor space dedicated to such adult material. 9. It is also my understanding that the City granted the business license to Cupids and allowed it to operate as a general commercial business on C-3 zoned property, when the City was aware that Cupids offered "peep show" booths for on -site viewing of sexually explicit material. I do not intend to construct or ever operate any such booths in the Adam & Eve store. 10. 1 do not intend to operate my store in any manner in which I believe it would be deemed a "sexually oriented business," as defined by the City Code. I do not intend to dedicate a substantial or significant portion of my stock -in -trade or interior floor space to the sale of adult material. 11. 1 have already secured a lease agreement for the store at 1510 South University Avenue, and am awaiting approval of my license application from the City so that I may complete my build -out and open the store. I have read the foregoing statements and said statements are true and accurate to the best of my knowledge and belief. JA In witness whereof, I hereunto set my hand this 2 day of May, 2011. 2 SUBSCRIBED AND SWORN before me on this day of May, 2011. )k — — & I -JV t -t - - /-d Notary Public in and for the State of Arkansas My commission expires: A Notorryl°ub�Ilc-ArkenSGS ctavetond cou1nS.lY MY Coco nmfsslan #on res 123521. 4d�� alb Y May 16 letter to City of Little Rock Board of Directors Quattlebaum, Grooms, Tull & Burrow A PROFESSIONAL LIMITED LIABILITY COMPANY I I I Center Street Suite 1900 Little Rock, Arkansas 72201 (501) 379-1700 - (501) 379-1701— Fax Michael N, Shannon Direct Dial msliannonQggtb.com 501-379-1716 Licensed in Arkansas, Missouri and Kansas Direct Fax 501-379-3 S 16 May 16, 2011 VIA Hand Delivery and-U.S. Mail Mr. Brad Cazort Little Rock Board of Directors Little Rock City Hall 500 W. Markham Street, Room 203 Little Rock, Arkansas 72201-1400 Re; Denial of business license to Mr. Stephen Norman d/b/a Adam & Eve retail store Dear Director Cazort, By this letter I am writing to give the City of Little Rock ("the City") notice that we intend to challenge the denial of a business license to Mr. Stephen Norman, d/b/a Adam & Eve retail store, Specifically, we believe this decision, the City's course of i action, and the actions of any relevant City employees or entities involved in the decision -making process were arbitrary, capricious, unreasonable, and without grounds, Accordingly, we believe we are left with no option but to pursue our available legal rights and remedies. The relevant background for this dispute is as follows. On February 24, 2011, Stephen Norman, a putative franchisee for Adam & Eve Stores, a North Carolina franchisor with over 40 independently -owned retail franchise locations in 13 states, filed an application for a business license with the Zoning Department of the City of Little Rock, pursuant to § 17-37, et seq., of the City of Little Rock Municipal Code, The City, through a representative from the Treasury Management Division, subsequently verbally denied this application. Mr. Norman was also verbally informed that the City intended to classify his endeavor as a "sexually oriented business" ("SOB"), pursuant to § 17-211, et seq., of the Code. To date, Mr. Norman has not received a written notice of denial. This firm is now in receipt of a copy of a denial letter, albeit unsigned, dated March 23rd, from Carol Freeman to Mr. Norman. The letter is addressed to the proposed business location which Mr. Norman does not control, however, not his home address. Mr. Brad Cazort May 16, 2011 Page 2 Our grounds for the challenge of this decision are predicated in part upon the knowledge that the City previously ranted a business license to Cupids Lingerie ("Cupids") for locations at 3920 W. 65t' St. and 9700 N. Rodney Parham Rd. The City allows these Cupids stores to operate as "general commercial businesses" pursuant to section C-3 of the zoning classifications, rather than as "sexually oriented businesses" ("SOBs") pursuant to § 17-211, et seq., of the Code. These decisions are most pertinent in light of the fact that our client's intended retail business will be the same type of establishment and sell substantially similar items. In all relevant aspects, the proposed store is comparable to Cupids except that "adult material" will make up even less of our client's retail floor space than it does for Cupids. Pursuant to FOIA requests filed with the appropriate city departments on March 31, 2011, we are now aware of several relevant facts concerning the operation of the Cupids Lingerie stores. The location at 3920 W. 65t" St. previously operated under the name of "Adult Arcade & Video," and was found to be in violation of the sexually oriented business ordinance after the Code was amended to include day care centers in the list of establishments between which SOBs must maintain at least 750 feet of separation. Accordingly, the owner, Spencer Elmen d/b/a Sobel Inc., made changes to his business so that it would no longer be considered an SOB. In a letter dated February 13, 2004, Mr. Elmen wrote to Dana Carney, Zoning & Subdivision Manager, and detailed many of these changes, including changing the name to "Cupids" and removing "XXX" from the signage, shutting down several (but not all) "peep -show" booths, and reorganizing their inventory and product mix to include more lingerie, lotions, jewelry, etc. Most notably, Mr. Elmen indicated that, upon completion of their changes, "adult material [would constitute] less than 35% of our retail floor space," This fact* is especially pertinent when compared to Mr. Norman's currently proposed store, which would also maintain less than 35% of its inventory in adult -only material. Indeed, less than 20% is typical for Adam & Eve stores. Further, Adam & Eve does not intend to have any "peep -show" booths, such as those currently operated by Cupids. Mr, Norman provided relevant documentation regarding his intended product mix during the application process. In a February 24, 2004, response to Mr. Elmen's letter, Steve Beck, Interim Director of Planning and Development, noted that "it appears the many changes you are malting to your business will exclude your business from the definition of a sexually oriented business." As is now apparent, the City found the changes to the business persuasive and has allowed Cupids to operate as a general commercial business for many years, no longer classifying it as an SOB. The City Ordinance in question classifies an SOB as one having a "substantial or significant portion" of its stock in trade or floor space, or revenues from, or advertising expenditures to the promotion of material characterized by "specific sexual activities" or . i N Mr. Brad Cazort May 16, 2011 Page 3 "specified anatomical areas." The defining question in this matter seems to be; if Cupids Lingerie is not considered to have a "substantial or significant portion" of its inventory, floor space, or revenue from such "adult material," how can Adam & Eve, a substantially similar store that by its own license application stated it would carry less of the referenced adult material than Cupids, be deemed to meet this definition? A February 6, 2004, article in the Arkansas Democrat -Gazette detailed the litigation concerning Adult Arcade & Video's (Cupids' predecessor) violation of the SOB ordinance and Mr. Elmen's efforts to convert the store and bring it into conformance. Tom Carpenter, City Attorney, was quoted in the article as saying "If a business has 51 copies of War and Peace and 49 copies of Debbie Does Dallas, the majority of items are not sexual. But basically, it boils down to whether or not you are trying to be a sexually oriented business." We could not agree more, Mr. Norman is attempting to operate a tasteful, upscale specialty boutique for men and women, just as Cupids has successfully done in Little Rock for many years. He is in no way endeavoring to open or operate a sexually -oriented business, as defined by the Code. For reference and illustration, I have attached copies of marketing materials distributed to potential Adam & Eve franchisees (see Ex. 1) and photos of the Adam & Eve store currently operating in Houston, TX (see Ex. 2). It is also worth noting that in October of 2010, when Mr. Norman filed his initial application for a business license for the Adam & Eve store —at a different location, 7711 Cantrell Road, that did not work out for other business reasons —he was verbally informed that the City had determined that the store would not constitute an SOB, and.the C-3 zoned location would be appropriate for the store. It was only after Mr. Norman filed a second (and subsequently, a third) application for a license in February of 2011 that he was informed his store would be. classified as an SOB. In light of the City's actions in regards to the existing locations of Cupids Lingerie and the disparate treatment afforded Mr. Norman's efforts to open a retail operation with an even lower mix of adult items, litigation of the matter may be the only option remaining if the City does not change its position. The City's decision to deny Mr. Norman the business license appears arbitrary, capricious, and unreasonable. Moreover, the disparate treatment of similarly situated businesses opens the door to an as -applied constitutional challenge to the Ordinance. Lastly, it is disturbing that Adam & Eve, an out-of-state franchisor, appears to be receiving unequal treatment vis-A-vis the local chain, Cupids, which raises additional constitutional issues of equal protection and economic protectionism. It should be noted that the franchisor, a North Carolina -based corporation, operates a separate website for its online retail presence. Franchisees do not control the content of that website and do not receive any of the proceeds from sales it might generate. Further, -our client will not operate an independent website for its Little Rock Mr. Brad Cazort May 16, 2011 Page 4 location and, most importantly, he will maintain a product mix that is significantly different from what might be viewed on the North Carolina -based website. To the extent that this website may have been considered in the denial of Mr. Norman's business license application, we believe that is inappropriate. The only relevant determinant for how Mr. Norman may operate this retail business in Little Rock and whether its proposed use meets zoning requirements is the intended inventory and product mix in the physical location in Little Rock. In addition, Cupids operates its own website (www.shopcupids.com) that advertises many adult items, including videos and even an "online theater." See Ex. 3. Our research indicates that our client has solid claims on several independent, substantive grounds, Accordingly, I have taken the liberty of outlining several claims available to Mr. Norman if the City persists in its denial of his business license. The City's decision denies equal protection of the laws to Mr, Norman The Equal Protection Clause of the Fourteenth Amendment states that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1. The disparate treatment of similarly situated persons, as has occurred in the dispute in question, is the hallmark of a violation of the equal protection of the laws. States and municipalities are granted especially wide latitude when legislating pursuant to their police powers, as is the case with Little Rock's ordinance regarding SOBS. The United States Supreme Court has reminded us, however, that The State undoubtedly has the power, by appropriate legislation, to protect the public morals, the public health and the public safety, but if, by their necessary operation, its regulations looking to either of those ends amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void. Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 558 (1902), overruled in part by Tigner v, Texas, 310 U.S. 141 (1940). Applying this concept to the realm of municipal licensing schemes, the Virginia Supreme Court has affirmed that "[t]he right of an individual to engage in a lawful business may not be arbitrarily denied to him and granted to another under the guise of regulation." Flax v. City of Richmond, 52 S.E.2d 250, 255 (Va. 1949) (citing Connolly, supra). A plaintiff that does not allege to be a member of a protected class may still bring an equal protection claim under the "class of one" legal theory. See Village of Willowbrook v. Olech, 528 U.S. 562, (2000) (per curiam). To prevail on such a claim, the plaintiff must show that he "has been intentionally treated differently from others similarly situated" and that "there is no rational basis for the difference in treatment." Id. at 564. We believe a jury would be well -situated to determine whether or not the City of Little Rock has treated Mr. Norman differently than Cupids, a very similarly situated Mr. Brad Cazort May 16, 2011 Page 5 business, and whether there was any truly rational basis for that difference in treatment. A dispute with strong factual similarities to ours was heard by the Supreme Court of Alabama regarding the City of Hueytown's denial of a business license for the sale of table wine to a store within one mile of a school. See City of Hueytown v. Jiffy Chek Co., 342 So.2d 761 (Ala. 1977). The city applied a state statute which regulated the licensing of stores for table wine, and prohibited them from being located within a mile of schools and eleemosynary institutions, to deny Jiffy Chek's application for a business license. Id. at 761. As the evidence illustrated, however, the city had already granted licenses to three other stores "within the same class of establishments" as Jiffy Chek. Id. Noting that the "essence of the theory of equal protection of the laws is that all similarly situated be. treated alike," the court noted that the city could not "point out how Jiffy Chek is so distinguishable from the licensed merchants as to justify refusing it a license," and, thus, the corporation was denied the equal protection of the laws. Id, at 762. "It stands undisputed that Jiffy Chek is in the same class as the others. Denial of a table wine license to it under the circumstances amounts to arbitrary, capricious discrimination." Id. Thus, a ringing violation of Mr. Norman's rights to equal protection under the laws can be established in a court of law. The City's decision violates Mr. Norman's rights under the First Amendment The subjective grounds upon which the City acted in this matter —granting one business license while denying another for a nearly identical establishment —also raises the question of whether the ordinance places unbridled discretion in the hands of the City employee(s) who made the decision to deny Mr. Norman a business license. Such unbridled discretion can have a chilling effect on protected speech and amount. to a prior restraint when applied to a business with a valid First Amendment right, such as our client. Businesses purveying sexually explicit speech are protected by the First Amendment, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990). As such, it has been settled by a long line of recent decisions of this Court that an ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Id, at 226 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969)), Numerous decisions of the United States Supreme Court reaffirm this notion. See FW/PBS, supra at Mr. Brad Cazort May 16, 2011 Page 6 225-26 (listing several decision of the Supreme Court as precedent). The Arkansas Supreme Court recognized this line of precedent in a case involving sexually oriented businesses in Hot Springs. Orrell v. City of Hot Springs, 311 Ark, 301, 844 S.W.2d 310 (1992) ("a scheme that places unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.") Id, at 304, 844 S.W.2d at 312; see also Blue Moon Entm't, LLC v. City of Bates City, Mo., 441 F.3d 561, 565 (8th Cir. 2006) ("A licensing scheme generally must provide narrow, objective, and definite standards to guide the licensing authority ...."). We coo not mean to suggest that the City of Little Rock ordinance is facially invalid on First Amendment grounds; the long line of decisions following City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), suggests otherwise. Rather, it is the apparent subjectivity of the City's decision -making process and the lack of guidance in the ordinance that leaves the City vulnerable to an as -applied challenge on constitutional grounds. The City ordinance regulating sexually oriented businesses is unconstitutionally vague Moreover, the wholly arbitrary fashion in which the City has applied its ordinance regulating SOBs suggests that it fails to give proper, if any, guidance to City employees, enforcement officials, and citizens as to how it will be applied to certain businesses. In 2005, the Supreme Court of Tennessee struck down a Knoxville ordinance regulating sexually -oriented businesses that is substantially similar•to the current law in Little Rock, See City of Knoxville v. Entertainment Resources, LLC, 166 S.W.3d 650 (Tenn. 2005). Knoxville City Code section 16-468 regulated the location of "adult businesses" and included in that category adult bookstores, which it defined as an establishment having as a substantial or significant portion of its stock and trade books, magazines and other periodicals, videotapes or other electronic media which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, or an establishment with a segment or a section devoted to the sale or display of such material. Id. at 652 (emphasis in original). The dispute arose over whether the phrase "substantial or significant portion of its stock and trade" was impermissibly vague under the United State and Tennessee constitutions. Id. The City of Knoxville's contention was that the terms "substantial" and "significant" were familiar and capable of ready understanding by persons of ordinary intelligence. Id. at 655. In striking down the ordinance as vague and invalid on its face, the court noted Mr. Brad Cazort May 16, 2011 Page 7 that "[a]s written, the determination of what constitutes a `substantial or significant portion' of a business's `stock and trade' under the ordinance is an entirely subjective one." Id. at 656. The court went on to declare that the "ordinance gives no objective guidance to businesses regulated by the ordinance or officials charged with its enforcement." Id at 656-57. "What is `substantial' or `significant' to one person may just as easily be `unsubstantial' or 'insignificant' to another." Id. at 657; see also Ellwest Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553, 1581 (M.D. Tenn. 1989) (finding "substantial or significant" unconstitutionally vague because city officials in charge of enforcing the ordinance could not define what the phrase meant; "Clearly, if the regulating authority cannot determine the establishments which are subject to its authority, the establishments themselves cannot be expected to determine whether they need to be licensed or not."). Further, a passage from the City of Knoxville decision is particularly relevant to the dispute at hand, given Little Rock's position in granting a business license to Cupids Lingerie while denying same to our client. To wit: "Surely the City must have had some idea of what amount of sexually -explicit material was tolerable under the ordinance, particularly given the fact that the record shows that the City takes the position that Gemstone Video Stores, which also stock sexually -explicit videotapes, was not in violation of the ordinance." 166 S.W.3d at 658. "In the absence of any articulable standards from the City," the court concluded that the ordinance was vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Id. Such is the position in which our client finds himself by virtue of Little Roches actions. An ordinance which would grant a license to one business, yet deny the same to a virtually identical one, presents no specified standard of conduct to which a putative business owner may conform. Additionally, similar ordinances in other municipalities have withstood constitutional scrutiny, in part due to the fact that sufficient guidelines Were included to guide enforcement officials and affected citizens/businesses. The City of New York, for example, enacted a zoning ordinance that regulates adult bookstores in an analogous fashion, by classifying such stores as those having a "substantial portion" of its "stock -in - trade" in adult items. See City of N.Y, v. Les Hommes, 724 N.E.2d 368 (1999). The city's Department of Buildings provided guidance, however, in the form of an "Operations Policy and Procedure Notice . . . to clarify the meaning of the phrase `substantial portion."' Id. at 370. The administrative regulation provided "'[if] at least 40 percent of the book store's total stock accessible or available ... is comprised of adult materials, then the book store has a `substantial portion' of its stock in adult materials."' Id. The appellate court noted "the City's precise guidelines" in construing the plain language of the ordinance in favor of the adult bookstore owner. Id. at 371. Mr, Brad Cazort May 16, 2011 Page 8 The United States Supreme Court addressed a similar issue in Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., in which a village ordinance regulating the sale of drug paraphernalia was held not to be vague, in part because the village attorney issued guidelines explaining relevant portions of the ordinance, 455 U.S. 489 (1982). The Court noted there that "[t]he village may adopt administrative regulations that will sufficiently narrow potentially vague or arbitrary interpretations of the ordinance. In economic regulation especially, such administrative regulation will often suffice to clarify a standard with an otherwise uncertain scope." Id. at 504, In the absence of any such guidelines from Little Rock regarding what actually constitutes a "substantial or significant portion" under § 17-212 of the Code, we are left with a law that is wholly uncertain in scope, as evidenced by how it was applied to the detriment of our client. As a final note, the Arkansas Supreme Court has spoken with regard to the standard of review in this context, declaring Statutes and ordinances imposing licenses and business taxes are generally to be construed liberally in favor of the citizen and strictly against the government, whether state or municipal, especially where. they provide penalties for their violation. Accordingly, if the enactment is not clear and positive in its terms, or if it is reasonably open to different interpretations through the indefiniteness of its provisions, every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied. Arkansas State Licensing Bd for Gen. Contractors v. Lane, 214 Ark. 312, 317, 215 S,W.2d 707, 710 (1948) (quoting 53 C.J,S., Licenses, § 13). The circumstances of the current dispute certainly illustrate that the City Ordinance regulating SOBS is "reasonably open to different interpretations through the indefiniteness of its provision." The issue is thus ripe for a jury to make a determination as to the application of the ordinance to Mr. Norman; and in construing the indefinite language of the law, the tie goes to the citizen - business owner, At this point, we ask that the City reconsider the matter and approve our client's license application so that he may open and operate his business, as he is legally free to do. If the City stands by its denial, however, we will be left with no option but to press our rights and remedies in a court of law. We are prepared to bring suit for both (1) a declaratory judgment that our client's civil and constitutional rights have been violated, and (2) an award of compensatory damages against the City, as well as attorneys' fees, costs, and all other relief to which our client is entitled. Our client has been denied the privilege of operating his business in the City of Little Rock, and we believe a jury is well -situated to find that, in so doing, the City has acted arbitrarily, capriciously, and in violation of Mr, Norman's rights at law. Mr. Brad Cazort May 16, 2011 Page 9 I appreciate your time and consideration of this matter. If you would like to discuss further, please feel free to contact me at mshannon@ggtb.com or 501.379,1716. Respectfully, QUATTLEBAUM, GROOMS TULL & BURROW, PLLC 'c ael N, nnon MNS/lad Enclosures cc; Stephen Norman (-vv/ encls)