Arkansas – from www.couriernews.com – The First Amendment and the right to maintain a business are two issues confronting all communities. The X-Mart Adult Supercenter in Clarksville has propelled these two issues to the forefront of local discussion for the past five years.

A lawsuit is currently ongoing against X-Mart for non-compliance with a city ordinance. After the store opened in 2005, a 22-page ordinance defining the parameters of the business was written by City Attorney Bruce Wilson. The ordinance states an adult store must be located in an industrial zone. X-Mart was required to abide by the ordinance within three years.

“At the expiration of the three-year period, the Defendant sought and was granted a six (6) month extension which expired on July 17, 2009” (sic), according to a pre-trial brief.

On Sept. 14, 2009, the city of Clarksville filed a complaint alleging X-Mart did not file an extension.

Attorneys for X-Mart responded on Feb. 10, 2010, alleging the city ordinance for sexually-oriented businesses infringes on the store’s right to the free speech provision of the Arkansas Constitution.

“The city allegedly was required to and did not establish adverse secondary effects that would be addressed by the Ordinance,” stated the pre-trial brief.

Wilson would not comment on the case as it was still ongoing. John Wesley Hall, one of the attorneys for X-Mart, was only able to confirm what was stated in the pre-trial brief.

There are at least three additional lawsuits involving the store pending in court.

In order to work at the X-Mart Adult Supercenter, employees have to obtain a sexually-oriented business license. The license is administered through the Clarksville Police Department.

In order to obtain a sexually-oriented business license, the employee must be over 18 years of age and not declared a nuisance by a court of law. Employees must wear their license or keep it on the premises while they are working.

According to a police report, Clarksville Police Chief Greg Donaldson assigned deputies to investigate X-Mart after receiving numerous complaints regarding obscene materials prior to March 2009. Drug Task Force (DTF) agents were assigned to the case.

Outfitted with digital audio and video equipment, officers purchased adult DVDs at the store on March 24, 2009. The clerk for the purchase was Brooke L. Smith, 31, of Lamar. Smith was also the clerk when DVDs were purchased on Sept. 16, 2009.

Officers visited the store again on Sept. 15, 2009, where they again purchased adult DVDs. The clerk for this purchase was Dennis G. Freeman, 23, of Glenn Falls, N.Y.

Upon further investigation on Oct. 8, 2009, DTF officers reentered the store for more items for their investigation. The clerk on duty was Christine A. Parker, 31, of Dover.

Smith, Freeman and Parker have been charged with promoting obscene material. They are out on bond pending their trials. Smith and Parker are to be tried together July 30. Freeman’s trial will begin Aug. 19.

“Obscene material as defined by Arkansas law is not protected by the First Amendment and it is therefore criminal,” 5th Judicial District Prosecuting Attorney David Gibbons said.

By law, officers who purchase materials also have to review the content in order to determine whether there is probable cause for an obscenity case.
“They go in and look at what’s available,” Gibbons said. “Then, they look at the material for probable cause, and then the determination will be up to the jury.”

Andre May, store manager of X-Mart, said he did not understand how the sheriff’s office could issue a license but yet arrest his employees.

“If we’re doing something wrong, then the store shouldn’t be open,” May said.