The owner of the Love Shack on Highway 58 is fighting the city's attempts to force him to move, claiming that despite selling sex toys, X-rated DVDs and magazines, most of what he sells is women's clothing.
Several nearby residents have complained to Chattanooga Councilman Ken Smith, who represents the area, about the store, which advertises on a large billboard above the premises and on the side of a large box truck parked out front.
"We had 20 to 30 people at a meeting and they were up in arms," Smith said. "This is within 500 feet of a church and residences, and it is not allowed."
The city's code follows the definition of an adult business established by the state — that if one-third of a business' inventory or sales is adult oriented, the store must comply with special zoning restrictions that bar such businesses within 500 feet of churches, schools or residences.
Attorneys for the Love Shack told the city attorney's office that most of the store's sales are for non-adult items, primarily women's clothing. The store's business license is for a women's apparel store, Smith said.
"The Love Shack is a fully licensed lingerie and romance specialty store in full compliance" with city ordinances, the store's attorneys stated in a letter to the city attorney's office, according to Deputy City Attorney Phillip Noblett.
"They say they have defined the merchandise they sell as not being adult, erotic, sensual or pornographic," Noblett told the council recently. The business sells enough smoking paraphernalia, women's clothing and other items that only about 22 percent of its retail value is from adult-oriented merchandise, Noblett said. The store sent the city a spreadsheet stating that out of 9,487 items at the Love Shack, only 2,108 were adult themed, he said.
Signs on the outside of the store advertise DVDs and lingerie, but there is no mention of X-rated material.
Chattanooga is not the only area town stumped by how to regulate businesses such as the Love Shack, which has boxes of blow-up sex dolls, including Barack Obama and Hillary Clinton, on a back wall. In Rome, Ga., city officials have said they can do nothing to ban The Love Library, an adult-themed novelty store that opened several months ago. Floyd County has an ordinance similar to Chattanooga's, stating that a store is an adult business and subject to additional regulations if 35 percent or more of its merchandise is adult oriented.
Store manager Dennis Haynes told the Rome News-Tribune his store keeps the percentage of X-rated merchandise below that level.
Gwinnett County, Ga., officials recently rewrote their adult entertainment regulations in an attempt to restrict adult-oriented businesses to industrial zones after a lingerie and novelty store, Tokyo Valentino, opened near Gwinnett Place Mall. Gwinnett's ordinance defines an adult entertainment store as one where 10 square feet of its retail space is devoted to X-rated materials, or 5 percent of its revenue is earned through the sale of such merchandise.
Courts have ruled that cities cannot ban adult-oriented stores entirely, although they can limit where they can be located, Noblett said. The 6th U.S. Circuit Court of Appeals has upheld Tennessee's "33 percent of inventory" rule, which is why Chattanooga adopted that standard, he said. While the city could adopt a new ordinance with a lower standard, it would risk a lengthy legal appeal.
But while the presence of X-rated DVDs and books may upset nearby residents, they provide the store with more constitutional protection, said Ken Paulson, president of Vanderbilt University's First Amendment Center.
"The First Amendment applies here because the stores have videos and books of a sexual nature," said Paulsen, who is also dean of the School of Mass Communications at Middle Tennessee State University. "Courts have consistently said that they, too, enjoy First Amendment protection. Just because something is sexual in nature doesn't mean it is not protected."
The city might be able to move against the store if it can show that its presence is promoting crime or lowering property values, Paulsen said. The U.S. Supreme Court has established what it called the "secondary effect" doctrine, that allows a city to regulate adult-themed or other businesses if their presence in a community can be shown to have a negative impact. A town could limit the number of strip clubs in a neighborhood, e.g., if it could show that their presence was increasing prostitution and drunk driving in the area, Paulsen said.
But that doctrine was intended to prevent new stores from moving into an area and not to "spruce up" a neighborhood and force existing stores to move, he said.
For now, the city is asking the store for more detailed information about its inventory to determine if it does indeed keep adult merchandise below the 33 percent limit, Noblett said.
Elias Marrero Jr., the owner of the Love Shack, declined a request for comment.