ASB Magazine

Congratulations on having fought through government apathy, or a plan by government to deny you licensing for an adult store, or having not been asked whether your retail merchandise will include sexually explicit material

Congratulations on having fought through government apathy, or a plan by government to deny you licensing for an adult store, or having not been asked whether your retail merchandise will include sexually explicit material. In any event, you have your license. If you reside in an area that is used to adult stores, you may live happily ever after. Otherwise, you are likely to receive, or need to worry about receiving, a revocation notice for violating the law (or a non-renewal notice). Here are some thoughts on what to do if you receive the revocation letter.

 Of course, every state has different laws regarding procedures and the powers of government to revoke licenses already issued. You must rely upon legal advice from a lawyer who practices in your state before you can effectively challenge the revocation. If you do not know the name of a First Amendment Adult Business Lawyer in your area, call the First Amendment Lawyers Association c/o Wayne Giampietro at (847)590-8700 or email This e-mail address is being protected from spam bots, you need JavaScript enabled to view it ; or call or email me. Some general thoughts are in order, though.

 Many states require that constitutional challenges to the revocation process, or the authority of the revoking body to revoke, or other matters relevant to the revocation must be made at the earliest possible moment, or may be waived. At a minimum, this requires the store to argue constitutional challenges either in its response to a revocation notice or at a hearing.

 Most states require that as a matter of minimum procedural due process, that store owners be entitled to written facts which are the basis of the charges, along with the code section allegedly violated. Some states allow store owners discovery into the notes or files of the charging police officer as to what he saw and knows. Those notes must often be produced before the hearing.

 Most states have a specific ordinance, which provides for the powers of either the council or commission, or a review board appointed by the government, which spells out their powers or limitations on power. I have been successful in the past when a government appointed a review board to hear revocation appeals and authorized the review board to enact rules and regulations on how to conduct those hearings including the burden of proof and who has it. If the government is empowered to enact further rules and regulations, but has not done so, then the revocation can sometimes be defeated.

 There are a number of first amendment challenges that are peculiar to providers of constitutionally-protected sexually explicit material, including adult stores, which are very complex and generally outside the usual knowledge of non-first amendment adult lawyers, even those who are very good at administrative hearings. Again, please call a lawyer specialized in this area, or call or email FALA or me for a name of a lawyer who is knowledgeable in your state.

 Many hearing regulations allow subpoena power to compel the attendance of witnesses and the production of documents. If a police officer has come into a store and alleged that sex was going on in booths; he might be made to disclose, in advance of the hearing, how many times he went in looking for sex and did not find any occurring.

 Sometimes the grounds for revocation are limited by ordinance. What your store is charged with may not be included. If a conviction is needed, then the police officer who has charged someone, but whose case has not gone forward to conviction or acquittal yet, should not be allowed to simply testify that a crime occurred which forms the basis for the revocation. The hearing might be premature.

 The fact that an incident occurred at a store does not automatically mean that the store can have its license revoked. Rather, many states properly focus on whether or not the store has good rules in place to regulate and prohibit illegal activity, and that management actively seeks to stop crimes from occurring. If an incident falls through because a disgruntled employee let it happen, many states are required to deny revocation.

 At the trial itself, always bring a court reporter to take down and later transcribe the evidence. In most states, it is nearly impossible to successfully appeal an adverse decision without a transcript of the proceedings included in the appeal. Sometimes the board itself will have a court reporter there, but often the proceedings are not recorded or are only on a tape recorder, which may not be sufficient for appeal purposes.

 Most states require that an applicant who has lost a revocation must exhaust all administrative remedies before he can sue for violation of his rights. Often the decision of a review board must be appealed directly to the city council, or county board of commissioners. Failure to do so may result in an inability to file an appeal in the trial court later.

 The question of how to appeal to the trial court, after you have exhausted administrative appeals, often provides a complex question. Often, appeals can be done by Writ of Certiorari, Mandamus, or an appeal under the Administrative Practice Act of your state. Picking the right formula is crucial. Your code may tell you how they think it is to be done, but that is also not necessarily binding. Instead, lawyers often have to analyze whether or not the revocation procedure was an administrative or a quasi-judicial hearing to determine which form of appeal is proper.

 Many states, but not all states, allow a store to remain open on appeal by filing of a proper appeal; under the theory that due process requires that a taking of a license not occur until the appeal has been heard by a trial judge.

 If after the administrative trial has finished it looks like the revocation may stick, many store owners prepare to sell their stores as ongoing concerns to a new purchaser. Whether that purchaser can be related to you or not, and whether or not the government can refuse a new application for twelve months after revocation (punish the land) are also complex questions and require a careful analysis of your code of ordinances.

 Many states allow for the reversal of the revocation of a license only upon a finding by the trial judge on appeal that there was either no evidence of wrong doing or that the procedures were unconstitutional in violation of the U.S. Constitution or the government’s own ordinances. It is very rare indeed that an appeal court reverses a revocation on a no-evidence of wrongdoing standard. Therefore, the way to most easily ensure victory in the revocation hearing, or on appeal, is for a board of commissioners or council or appeals judge to determine that the procedures were done improperly. Make sure you make a good record of errors for appeal.

 Additionally, make sure that the commissioners, counsel persons, or review board people are awake and paying attention during the administrative trial. Many of these proceedings are televised for public access TV, and they show the faces of all the members participating. If not, you may want to bring a videographer with you. About a year ago, the same California Court of Appeals that found a conflict of interest in a lawyer acting as counsel to prosecutor and judge, also struck a revocation of an adult license on the basis that the members of the tribunal were paying no attention, speaking among themselves, talking on the phone, or absent during much of the argument.

 Lastly, the best advice is to try to keep a revocation notice from ever being delivered. If you are doing something that is illegal, your competitor is likely to turn you in and guarantee a police undercover investigation. Have a handbook of rules by which employees are required to prohibit illegal activity from occurring and regularly looking out to see that it is not occurring. Have regular meetings to go back over the rules so that they are reinforced. If employees break the rules, be prepared to discipline them for it. If customers have been thrown out for breaking the rules, keep a diary of their names, the dates of the incidents, and other relevant information to show that you have enforced the law in the past.