http://www.azstarnet.com/public/dnews/195-0086.html

Empress adult shop sues to stay open past 1 a.m.

Tuesday, 14 December 1999

Under the state law that Tucson police began enforcing yesterday, certain
types of adult-oriented businesses cannot operate between 1 a.m. and 8 a.m.
Mondays through Saturdays and between 1 a.m. and noon Sundays.
By Stephanie Innes
The Arizona Daily Star

An adult store on Speedway that's open around the clock is challenging the
state law that forces sexually oriented businesses to close at 1 a.m. daily.
The 29-year-old Empress Adult Video and Bookstore at 3832 E. Speedway, which
also features live nude dancers, argues that the Arizona law is
unconstitutional and discriminatory.
And by restricting the business from opening on Sunday mornings, the law
favors religion, the Empress' lawsuit says.
Because police began enforcing the law yesterday, Empress and its operators,
Osco Communications Group, are suing the city in Pima County Superior Court.
Assistant City Attorney David L. Deibel said the city must prosecute adult
businesses that stay open beyond 1 a.m.
The law limits hours of operation for businesses that focus on sexually
explicit material, including those featuring nude and semi-nude dancers.
Such businesses must close at 1 a.m. and may not reopen until 8 a.m. on
weekdays and Saturdays and noon on Sundays.
``The city's position is we believe the law will ultimately be upheld,''
Deibel said. ``(A federal judge) refused to issue a preliminary injunction,
and we believe that is the proper stance.''
Attorney Michael J. Meehan, who is representing Empress, did not return a
phone call seeking comment yesterday.
The Empress store is normally open 24 hours per day, seven days per week.
Its live, erotic dance shows are held between 11 a.m. and 4 a.m. Mondays
through Saturdays and from 4 p.m. to 4 a.m. Sundays.
Empress contends the state law stomps on its First Amendment right to
freedom of expression. The suit also claims it is unfairly
``under-inclusive,'' because bars, for example, do not have to close at 1
a.m. after they stop serving alcohol unless they offer adult entertainment.
When the Legislature passed the law, proponents argued that blocking
around-the-clock access to XXX-rated entertainment is one of the few
constitutional ways of controlling such business.
They also argued that the businesses bring crime, drugs and public sex, and
lower neighborhood property values.
After the Legislature passed such a law in 1997, a federal court granted a
temporary restraining order that prevented it from taking effect. But a
federal judge in Tucson vacated that order in September, meaning the law
stands, Deibel said.
The issue is set to be considered by the 9th U.S. Circuit Court of Appeals
early next year.


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