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How an Alabama adult store fights culture, state laws

AUBURN, Ala. from www.cw.ua.edu — Some week and a half before it’s set to open, a storefront in Auburn’s Tiger Crossing shopping center sits dark and still, sandwiched between World Gym and a place that sells “hippie stuff.” Inside, its shelves are a mishmash of half-assembled, empty and fully stocked with items. Coffee cups still holding leather brown and forgotten brew lay on counters throughout the store.

It’s the mannequins, though, that really set the place apart from any other store in the making. Some are armless, and others don’t have legs, but the ones that are standing come draped in orange and blue feather boas, dressed in lingerie that’s sure to make some in the good town of Auburn blush on their way to the Winn-Dixie a few doors down.

But the underthings are just the beginning of the interesting wares. Beyond a partition in the store — behind thickly tinted blackout windows — is a cacophony of gadgets, toys and props designed for adults to use in private, consensual relationships behind what are sure to be triple locked doors.

There are vibrators in a host of shapes and hues of blue, purple and pink and dildos in a rainbow of flesh tones. And buckets of condoms and lubricants and all other manners of sin.

This is the newest branch of Love Stuff, a chain of emporiums peddling costumes, games, bachelorette party favors, pornography and sex toys, opening for the first time in the loveliest village on the plains.

Love Stuff’s general counsel Amy Herring paces the floor examining each piece of merchandise. What exactly she’s looking for she won’t say — citing attorney-client privilege — but it most certainly has to do with her efforts to keep the store from falling afoul of Alabama’s laws targeting the sale of racy goods, the most onerous of which, a ban on the sale of sex toys, was upheld last month in a decision by the Alabama Supreme Court.

“It’s a new venue,” Herring said of Auburn. “We don’t know what we’re going to run into. But we’ll find out.”

Herring knows the trouble a place like Love Stuff can face. In 1998, she was part of the legal team that brought the first challenge to the sex toy ban in federal court. Years later, while the federal litigation was ongoing, the city of Hoover tried to shut down a Love Stuff store, resulting in a line of state cases giving Love Stuff the right to remain open. The most recent decision on Sept. 11, however, refused to overturn the state’s ban on the sale of sexual devices, leaving Love Stuff and other stores in the state to find creative ways to continue spreading the love to their customers.

Herring and Love Stuff’s owner Ross Winner are getting ready to open the new store despite the decision. Winner, who Herring calls a “monster” in the best sense of the word, has been preparing the store for its October grand opening.

Herring can picture the first time a group of Auburn University co-eds visit the store.

“There will be 10 of them,” Herring said. “They’ll come in, and they’ll chuckle and chortle. But some of them will come back later.”

***

It took fewer than 50 words, codified in Chapter 12 of the Alabama criminal code (“Offenses Against Public Health and Morals”), to ban the sale of sex toys in Alabama.

“It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value…”

It would take years and hundreds of thousands, maybe even millions, of words to determine that ban’s constitutionality.

***

Herring was born in Madrid, Spain, the daughter of the military attaché to the embassy. After graduating from the University of Alabama at Huntsville in 1976, it was off to law school at Washington and Lee University. From there, Herring found work in large law firms until 1993 when she struck out on her own.

It was then, Herring said, that she met B.J. Bailey, a woman who worked for a sex toy distribution system.

“When her husband retired, they looked for a nice, cheaper place,” Herring said. “She brought the business with them.

“She had 40 to 45 minute home parties talking about the benefits of marital aids. She needed a lawyer. By the time she incorporated on Valentine’s Day in 1994, I was her lawyer.”

For four years, Herring said she spent her time as Bailey’s attorney answering simple questions, like whether clients could bring babies to parties.

“Just the normal type of lawyer questions,” Herring said.

Herring’s life and legal career took a turn after Alabama state Sen. Tom Butler, D-Madison, sponsored the Anti-Obscenity Enforcement Act of 1998, a bill designed to thwart the evils of topless dancing in the state. Buried in its provisions, however, was code section 13A-12-200.2 — the state statute that makes the sale of “any device designed…for the stimulation of human genitals” a misdemeanor punishable by a year in jail and a $10,000 fine.

Herring was in her office after business hours when Bailey called, upset after watching a local television news report on the new bill. Herring had the producer at the station fax over a copy of the bill, and sure enough, it was big trouble for Bailey’s Saucy Lady business.

“We were all appalled,” Herring said. “We never knew there was a problem they were trying to address.”

***

For his official picture on the Alabama House of Representative’s Web site, Rep. John Rogers, D-Birmingham, decided to wear a stop-light red blazer.

He’s clearly a man with a sense of style.

“You got cucumbers in your fridge?” Rogers said. “Take them out. That’s a sex toy.”

He’s got a pretty good way with words, too.

Rogers, a member of the House since 1982, was there for the debate and passage of the Anti-Obscenity Enforcement Act of 1998.

“I remember very well when it first came up,” Rogers said. “It was attached to a bill to ban table-top dancing. No one picked up on [the ban on sex toys] because it was so insignificant.

“That was crafted by someone who snuck it in there. If I had picked up on it, I would have fought it at the time.”

Four years later, Rogers introduced his first attempt to repeal the ban. His measure went nowhere after, as Rogers said, his colleagues didn’t take it seriously.

“You have to realize — this is Alabama,” Rogers said. “It’s not popular to talk about sex or gambling. If you went home with a lot of them, they’d have [sex toys] at home.”

In 2003, the House of Representatives turned Rogers’ efforts into an actual joke as he was presented with the Shroud Award, a yearly booby prize given to the legislator with the deadest bill of the legislative session.

While Rogers still supports a repeal of the ban, it’s no longer a priority. Rogers would rather concentrate on a statewide gambling commission and rewriting the state constitution.

“That would eliminate a lot of these silly, ridiculous, irrelevant laws we have on the books,” Rogers said. “We need to address the whole situation. Until we do that, we’re going to keep stacking crazy laws on top of one another.”

***

Within a week of its enactment, the American Civil Liberties Union had joined the fight against Alabama’s ban before a single arrest had been made. Bailey became a lead plaintiff in Williams vs. Pryor, the first case to challenge the law, and Herring was able to argue against the ban in federal court.

In federal district court, Herring and the other plaintiffs’ attorneys miraculously scored an early victory when, on March 29, 1999, Judge C. Lynwood Smith Jr. ruled the law was unconstitutional.

“This court finds that the prohibition on the distribution of sexual devices,” Smith wrote in the court’s opinion, “…bears no reasonable, rational relation to a legitimate state interest and is, therefore, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution.”

“We were ecstatic,” Herring said. “We were very happy for our clients.”

But the excitement was short-lived. The state appealed the decision to the 11th Circuit Court of Appeals where Herring was not so lucky. The 11th Circuit eventually upheld the constitutionality of the ban, going so far as to say, “there is nothing ‘private’ or ‘consensual’ about the advertising and sale of a dildo.”

While the Williams case was still winding its way through the courts, Herring was asked to represent Love Stuff for the first time in a dispute over its Anniston store. Calhoun County sheriff’s deputies had seized thousands of videotapes, arguing they were obscene, and by the afternoon of the first court date, Herring was the general counsel for the store.

In 2004, Love Stuff eyed Hoover as the location for a new store, and Winner’s third store opened there in December, occupying the former home of a popular steakhouse. By January 2005, the city had already filed suit.

***

Ongoing litigation — or the prospect of future court battles — is enough to quiet many people.

The mayor of Hoover, Tony Petelos, and the city’s spokeswoman, Lori Salter, didn’t have much to say about the city’s half-decade fight against Love Stuff.

“This case involves the constitutionality of a state statute,” Salter said in a statement. “By law, the Alabama attorney general handles these cases. Accordingly, the city of Hoover turned this case over to the attorney general, who won on appeal before the Alabama Supreme Court. The city of Hoover will continue to leave this case in the hands of the attorney general.”

Hoover’s suit began over a city ordinance, incorporating state law, that prevented “an adult bookstore, adult movie house, adult video store or other form of adult-only enterprise” from operating within 1,000 feet of a church, park or pretty much anything else. Under the law, Love Stuff was neither an adult bookstore nor a video store, meaning it had to fall under the catch-all “other form of adult-only enterprise.”

“What’s that?” Herring asked mockingly. “Is it a place that sells adult clothes? Adult socks? Adult shoes? Either they made a clerical error, or it was more broad than they intended.”

The city argued the store violated the zoning ordinance and, by illegally selling sex toys, it was a public nuisance. Herring counterclaimed that the zoning ordinance and the sex toy ban, as well as Hoover’s denial of a sign permit for the store, were unconstitutional.

To Herring’s surprise, the city finished its argument on the first day of the trial. By the second day, Herring was making her case, putting on a doctor who vouched for the medical need of some for the devices Love Stuff sells.

“That testimony was unrefuted,” Herring said. “The state and the city had no expert witnesses. I’m still waiting on an expert witness to say it’s all immoral.”

Herring’s case was going well, but there was one problem: She had the flu. Not just any flu, but one that left her with a raging temperature of 103.6 degrees and all sorts of unpleasant maladies. The third day of the trial, however, was shaping up to be an important one as Jefferson County Circuit Judge Robert Vance Jr. was set to tour the Hoover store. Yet with a doctor threatening to hospitalize her, Herring couldn’t be there to direct the visit.

“I was too sick to go out,” Herring said. “Too sick to leave my hotel room.”

Herring needed to get well. Quickly.

She also needed some help.

***

On the wall across from his desk in his Tuscaloosa office, Joel Sogol has a framed copy of a news story about a lawyer with the gall to take on then-Etowah County Circuit Judge Roy Moore’s display of the Ten Commandments in his courtroom.

The attorney was Sogol, a 1973 graduate of the UA School of Law and one of the first to challenge Moore’s display in his county courtroom.

Primarily a criminal defense attorney, he was experienced in taking on the morality crowd in Alabama, and when he learned Herring needed help, Sogol had a case in Montgomery rescheduled so he could lead the tour of the Hoover store.

Sogol led Vance around the store with Herring’s help via phone. Herring herself was in her hotel room, barely able to stand and leaning on her bed for support.

Sogol said he enjoyed his role in the case.

“We got to play around with some people in the attorney general’s office,” Sogol said. “[Vance] let the lawyers on each side present their cases.

“It was a good courtroom atmosphere — unlike some courtrooms where everyone is at each other’s throats.”

His experience fighting the law might have been a good one, but Sogol, years later, still resents having to challenge it.

“Someone is going to have to decide how far they want this state to march into the 1800s,” Sogol said. “Sex is a good sell. And stopping sex is a good sell, apparently. We spend so much time and energy to get around bad laws — and conversely to enforce them — that we lose sight of what’s important in our lives and communities.”

“We were very confident after the judge saw the store,” Herring said. “He looked at it and seemed to say, ‘What’s the big deal? Why is this such a problem?’”

After a 10-day recess for Herring to shake the flu, she came back and finished the trial.

When Vance ruled in the case, Herring’s intuition proved to be spot on. Vance found the zoning ordinance unconstitutionally vague, and he also found no reason to deny the store a sign. However, in light of the 11th Circuit’s ruling in the Williams case, Vance upheld the constitutionality of the sex toy ban.

When the Alabama Supreme Court ruled on the case last month, they left Vance’s decision intact. The Hoover store got to stay in the old steakhouse, and it got to keep its slick new sign by the highway. But it couldn’t sell sex toys for their designed purpose.

The law is still on the books, but customers still want “device[s]…for the stimulation of human genital organs.” And Love Stuff is still certainly willing to sell them. Herring, however, had to come up with a way that would bring Love Stuff into compliance with the letter of the law.

“We exhibit them for educational purposes,” Herring said, summing up the store’s policy. “A client offers to buy.”

Love Stuff doesn’t sell sex toys.

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