But that doesn't stop folks from trying. In Durham, officials have been struggling to shutter one such business, Movie Town, for more than four years. After a litany of investigations, fines, hearings and court cases, Movie Town is still selling X-rated merchandise to a steady stream of customers. Oddly, the city contends it has won the battle. "They're prohibited from operating an adult establishment," says Assistant City Attorney Emanuel McGirt, who prosecuted Movie Town in court. "They're in compliance."
Long-time Durham residents may know Movie Town as the former Durham News & Video on Lakewood Avenue, a windowless cinderblock bunker whose exterior lettering left no doubt as to the nature of the venture: "Largest Selection of Adult Novelties in Durham;" "25 cents Arcade Video."
In 1998, the owners of Durham News & Video decided to expand to a location on Chapel Hill Boulevard across from South Square Mall. The doors to the newly rechristened Movie Town opened that October. Had anyone asked permission, the city would have rejected the move: Under Durham's adult business ordinance, passed earlier that year, the property was not zoned for such a use. Within days, enforcement officers from Durham's planning department had cited Movie Town for operating illegally.
Movie Town hired noted First Amendment lawyer Tom Loflin, who had handled similar cases around the state. First stop was the city/county Board of Adjustment, which is responsible for hearing appeals on zoning cases. At a hearing in December, Loflin argued that Movie Town had plenty of non-adult books and videos for sale (including religious texts) and thus was not an adult business under state law.
To prove that Movie Town was indeed an adult business, the city had to demonstrate one of two facts: either that the business made more than half its money from the sale of adult merchandise in any given month, or that the "preponderance" of the materials on display were adult in nature. The first test proved impossible--the store manager testified that the cash register didn't distinguish between categories of items, so there was no way to know what was sold on any given day. "The fluctuation of materials that's sold is unstable," he told the board.
Movie Town had an interesting business model that further obscured details of its sales. Inventory was not ordered by store employees, the manager stated, but arrived periodically "on its own" from somewhere in Maryland. Movie Town kept no financial records on premises; every few days a man named Joe Williams would come by and pick up the cash and register receipts. The manager knew of no way to contact Williams, who would call the store when necessary "from his car phone."
Board members might have wanted to ask questions of Movie Town's owners, but no one knows who they are. City documents indicate that the Chapel Hill Boulevard location is part of a group of adult bookstores, including one in Sanford, but details beyond that are sketchy. Loflin himself is coy about who pays his bill. "As long as they write me a check for my legal services, it does not matter to me who owns the stores," he says.
Raised eyebrows notwithstanding, the lack of records effectively knocked out the 50-percent claim. That left the preponderance argument, with the attendant spectacle of upstanding citizens watching pornographic videos and listening to competing claims over the relative weights of the Bible and "Bunghole Harlots." The Board of Adjustment ruled unanimously against Movie Town.
Loflin appealed to Superior Court, meaning that Movie Town's doors stayed open pending a decision. The following October, the ruling was upheld. Loflin again appealed, and was turned down for the last time in 2001.
In the meantime, however, Movie Town took steps to render the findings moot. The interior of the building has two rooms, separated by a closed door; customers enter the first room, which exclusively contains non-adult books and videos. The back room is filled with shelves and racks of videos, magazines and sex toys (which are not covered under Durham's ordinance). A video parlor with viewing booths splits discreetly off one side. To comply with the preponderance provision, the adult racks were pushed to the back wall and non-adult materials placed prominently in the foreground, with various other careful tweaks to the layout and video parlor selections. This, as Loflin noted in a 1999 letter to the city, would satisfy even "the most stringent definition of the word 'preponderance.'"
The courts issued an injunction against Movie Town. But the reconfiguration meant the city still couldn't touch the place. "Technically, for now, it's okay," says a planning department source. If Movie Town reverts to its old ways, the source says, the city is armed with the injunction and can close it down. "We're monitoring the situation."
Movie Town, of course, is the same business it's always been. Few customers if any go there to buy the 45-cent romance novels with the covers torn off that line one wall of the front room, nor do they drop substantial bucks on the condensed versions of literary classics and philosophical treatises that serve primarily to mock the city's agents. Though no one in City Hall will acknowledge this publicly, some did chuckle at the question. "If it looks like a duck and walks like a duck," says a cliché-prone source familiar with the case, "It is a duck."
The perceived threat of future sanctions is apparently of little concern to Movie Town. A recent visit revealed that the back room has been reconfigured once again, with all non-adult materials banished in favor of more raw product. A planning department source later admitted it had been "months" since anyone last checked.
Like many similar laws, Durham's adult business ordinance establishes zoning restrictions and minimum setbacks from schools, churches and residential areas. Since its passage, only one new adult business has tried to open according to the rules. Matthew Ferber, who owns another adult bookstore in town, found a piece of property near Research Triangle Park that met the city's restrictions, and he assiduously jumped through all the regulatory hoops. The Planning Department recommended approval. But Ferber was turned down by the Board of Adjustment, which has the final say, after Park officials organized opposition.
Unlike Movie Town, Ferber operates his existing business like most retail establishments. Well-staffed, clean and financially accountable, his store, Railroad Video on LaSalle Street in West Durham, stands in contrast to the dank, furtive image of adult bookstores. His video rental club has had 11,000 paying members since 1994, most from Durham. If a community is going to allow adult businesses at all (and they pretty much have to, or else violate free speech guarantees), it makes sense to have people like Ferber running them; European nations figured this out decades ago. "The real solution here is to raise the standard," Ferber says. "If you raise the standard, you won't have the problems. But I don't think the ordinance encourages that."
So Ferber can't open his bookstore in a place the city designated as okay for such purposes, while Movie Town operates freely in a retail and residential zone. Message to prospective adult bookstore owners: Do it like Movie Town.
Ken Lloyd owns Carpet One, which abuts Movie Town. Lloyd and his brother complained for years about the adult nature of the business, about beer bottles and video parlor tokens left in his driveway, but have given up. "We have been exasperated with it," he says. "If they're complying with the letter of the law, they're not complying with the spirit of the law."
Lloyd thinks the city is right to set up zoning restrictions for adult businesses, but questions how someone like Ferber might be rejected while Movie Town continues to operate. "You're going to have people object no matter where you put those businesses," he says. "But that shouldn't preclude them from operating in [an approved] district. I think we've got it backwards here."
The city attorney's office is currently drafting an amendment to the ordinance which will make it more restrictive, but that may only make matters worse: Tom Loflin believes that the law is already designed to eliminate adult businesses entirely, which would infringe on the First Amendment. "When the city says this isn't about getting rid of adult businesses, it's a sham and a charade," Loflin says. "If Mr. Ferber or anyone else wanted to hire me to take the city to federal court, I would be delighted to do it."
Contact Burtman: burtman@indy week.com