Adult novelty store sues Burnsville over DVD sales

An adult novelty store in Burnsville is suing the city, saying a zoning provision preventing it from selling sexually explicit DVDs is unconstitutional.

North Dakota-based Enchantasys Partners 2 LLC filed a lawsuit in federal court Wednesday contesting an ordinance that does not allow "sexually oriented businesses" to operate in certain parts of the city.

The suit argues the provision, applied to stores that sell or rent even a small number of items such as sexually explicit movies, books or magazines, violates the First Amendment. The company is seeking a preliminary injunction to allow it to sell DVDs while the suit is being resolved. A hearing on that motion has yet to be scheduled.

Golden Valley attorney Randall Tigue, who specializes in First Amendment issues and has represented adult entertainment businesses for decades, is representing Enchantasys.

"The purpose of adult entertainment zoning is to regulate adverse secondary effects caused by adult businesses," he said. "And they have no evidence that a general retail store with one or two DVDs or magazines causes any adverse secondary effects."

A Burnsville spokesman said staff were unable to discuss pending litigation.

The City Council adopted the ordinance affecting sexually oriented businesses in 1995. It encompasses everything from bookstores and video stores to escort agencies.

When Enchantasys opened the store in 2014, the plan was to sell and rent sexually explicit films in an area comprising about 100 square feet of the 5,000-square-foot store, according to court documents.

A description of the store's proposed use that the company submitted to the city said it intended to carry items including lingerie, costumes, DVDs and "novelties."

"We run a clean boutique-like store. It is an all age's store," the description said, adding that DVDs and adult novelty items would be situated in an area limited to customers ages 18 and over.

City planner Jenni Faulkner responded in a January 13, 2014, e-mail, saying the items being sold or rented — not the space they're sold in — determine whether a store is a sexually oriented business.

"If Enchantasys … eliminates [sexually] oriented media like DVDs, magazines or books, then they would be the same as general retail, which is an allowed use," she wrote.