Updated July 24, 2021 - 1:32 pm
Henderson’s laws that govern the opening of sex stores are unconstitutional, a federal lawsuit filed against the city asserts.
Among other things, the zoning and licensing regulations are too broad, are too vague and offer too much discretion to the city, according to the lawsuit filed July 9 in U.S. District Court on behalf of Henderson Retail 61 LLC, a company that wants to open a store in Henderson called Lion’s Den.
The lawsuit stems from the city categorizing Lion’s Den as a “sexually oriented business” and denying the company a building permit to remodel the inside of a store at Eastern and Serene avenues, where it had signed a lease.
But under Henderson law, the company asserts, Lion’s Den would only be considered a general retail store because it would not meet the criteria of being called a sexually oriented business.
The lawsuit seeks a declaration from the court that Henderson’s laws are unconstitutional and that Lion’s Den is entitled to damages because it spent money to prepare for the opening of a store and has missed out on earning money by not being able to open.
Henderson spokeswoman Kathleen Richards said this week that the city was served with the lawsuit and that the city attorney’s office is reviewing the allegations.
Henderson does not allow sex shops under the zoning that applies to the area of the proposed store. Instead, sex stores are allowed only in industrial areas and under certain conditions, according to the lawsuit. Special permission must be obtained before such a store can be opened.
Lion’s Den planned to mostly sell lingerie and other apparel, lotions, scented candles, party decorations and similar items, according to the lawsuit.
It also planned to carry a limited number of “constitutionally protected sexually oriented adult dvd’s and other adult media items as well as sexual devices and toys,” the lawsuit states.
If such items make up more than 10 percent of a store’s inventory, that store is considered a sexually oriented business under Henderson law. The “sexually oriented business” designation would also apply if more than 10 percent of the store’s revenue came from such products, more than 10 percent of the floor space in the store was dedicated to selling the items, or more than 10 percent of the business’s advertising is for the items.
If not for the city’s existing ordinance, Lion’s Den would have planned to carry more of those items, according to the lawsuit.
But because the store planned to stay under those thresholds, Lion’s Den should only be considered a retail store, the lawsuit asserts.
In February, a contractor for the company submitted a permit application to start remodeling the inside of the future store. The city and the contractor and company representatives went back and forth for months, discussing revisions to the remodel plans and clarifying what products would be offered at the store.
At one point, city officials pointed to a website for another store in Las Vegas called Lion’s Den, according to the complaint. A representative for the company said the Lion’s Den in Las Vegas operated under different ordinances, and that the Henderson store would operate under Henderson’s ordinances, according to the lawsuit.
The city sent an email to the company in June declaring Lion’s Den a “sexually oriented business” and denying the building permit, according to the complaint.
“This same determination disqualifies (the company) from receiving a sexually oriented business license which would be required for the opening of a sexually oriented business,” the lawsuit states.
Lion’s Den still has the option to apply for a permit to operate in an industrial area and, if approved by the planning commission, may apply for a business license, the city said.
Unconstitutional laws, complaint asserts
Henderson’s laws surrounding the opening of sexually oriented businesses are unconstitutional because they regulate protected expression before it happens, the lawsuit alleges.
The city’s licensing fees are excessive and amount to an unconstitutional tax on free speech, according to the complaint.
And applicants who want to open a sex store must disclose a substantial amount of information to the city, which the lawsuit asserts is unconstitutional because it does not further any government interest.
A provision that allows Henderson to have access to a business’s books and premises to verify compliance is also unconstitutional, according to the lawsuit.
“(The company’s) proposed business does not cause and is not correlated with any of the adverse secondary effects claimed to justify regulation of sexually oriented businesses and, therefore, the ordinances are unconstitutional as applied to (the company),” the lawsuit states.
But even if not applied to Lion’s Den, the lawsuit alleges, the laws are still unconstitutional.
Currently, no sexually oriented businesses operate in Henderson, the city said.
In 2014, The Love Store tried to open a location in Henderson, but it had its application denied because too much of its planned stock consisted of adult products.
The City Council rejected an appeal of the decision in August of that year. That same month, the council voted to allow sexually oriented businesses to apply for licenses in more areas of the city. At the time, then-Mayor Andy Hafen expressed concern that not doing so could expose the city to a lawsuit.