Adult shop involved in Supreme Court case closes

Friday, December 30, 2005

DENVER — A sex shop at the center of a six-year zoning dispute that went all
the way to the U.S. Supreme Court has shut down after the owner and city
officials agreed to settle hundreds of citations.

Christal's, which opened in 1999 near a church and a child-care center, had
sued suburban Littleton after city officials tried to enforce a licensing
ordinance for adult businesses. The store's owner argued Christal's wasn't
subject to the ordinance because less than half the store was devoted to
sexually explicit videos, novelties and other items.

Over the years, hundreds of zoning, sales tax and licensing violations were
dismissed in city, state and federal courts, according to Michael Gross, an
attorney who represented the store. At least 1,000 charges, each carrying a fine
up to $1,000 and possible jail time, remained before the settlement.

“The city made up its mind that the store had to go and they weren't going to
spare any expense,” Gross said yesterday.

The store's owner, Golden, Colo.-based Z.J. Gifts, operates 12 stores in Colorado,
Iowa, Texas and Tennessee. In similar cases from Colorado and Utah, Gross argued
that local governments were infringing on First Amendment free-speech

In 2004, in City of Littleton v. Z.J. Gifts, the Supreme Court disagreed with Z.J. Gifts on
some points and backed it on others.

In what some First Amendment observers viewed as an ambiguous ruling by
Justice Stephen Breyer, the high court said that when governments deny licenses
to adult businesses, courts must rule promptly on appeals filed by owners of the
businesses. Merely allowing owners to file their appeals promptly is not enough
to protect First Amendment interests, the Court held.

However, Breyer's opinion also said that even if a business-licensing dispute
amounts to a free-speech issue, a judge shouldn't be forced to give it priority
over other cases. And Justice Antonin Scalia said in a concurring opinion that
“the pandering of sex is not protected by the First Amendment,” and that the
city was within its rights to regulate the placement and operation of the

Littleton City Attorney Larry Berkowitz said he was seeking jail time and
substantial fines against Christal's in a trial that had been scheduled to begin
Jan. 9 and in trials after that in Littleton Municipal Court. Under the
settlement, Z.J. Gifts will pay a $50,000 fine, plead guilty to certain charges,
accept deferred judgments on others and agree to be subject to penalties in any
future violations, Berkowitz said.

Z.J. Gifts had previously paid at least $82,000 in fines, Berkowitz said.

He disputed Gross' characterization of the city's motives in issuing
citations and said the dispute had nothing to do with free-speech rights.

“The city determined that this was an adult establishment and was located in
the wrong zone, too close to a church and a day-care center,” Berkowitz said.
“That was the reason for the city's actions; it operated without a license and
in the wrong zone.”

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