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Sunday, February 26, 2006

Curb on sex-toy sales upheld

Folsom law doesn't violate free-speech rights, judge rules in Ms. Teaz case.
By Jim Downing -- Bee Staff Writer
Published 2:15 am PST Thursday, February 23, 2006
Story appeared in El dorado folsom rancho cordova section, Page H1
A Folsom ordinance restricting the sale of sex toys does not violate a business owner's First Amendment right to freedom of speech, a Sacramento Superior Court judge ruled Friday.
Judge Lloyd Connelly's decision marked a defeat for Misty Dufour, the owner of Ms. Teaz, an adult boutique on Sutter Street. Dufour filed suit against the city in April, hoping to force a repeal of the ordinance.


After Friday's hearing, Dufour said she plans to continue to operate her store and to carry items prohibited by the ordinance.
"It's going to be business as usual," she said.

Dufour said she never has been cited by the city, despite carrying the banned items.

Still, she pursued the lawsuit, saying the ordinance is vague and violates her freedom of expression.

"They still have not defined any of my gray areas," she said. "Until they can, they can't come and cite me."

Ms. Teaz opened in the heart of Folsom's historic district amid controversy in November 2004. Days earlier, the Folsom City Council had passed an emergency ordinance prohibiting sale of certain sexually explicit toys, except in designated adult businesses. The ordinance was made permanent in January 2005.

Before the ordinance was adopted, Folsom's city code stated that any store could use up to a quarter of its floor space to display "adult-related sexual devices" without being classified as an adult-related business.

Adult-related sexual devices specifically include leather whips, straps, harnesses, restraints and devices resembling human genitals.

The ordinance amended the city code so that any store selling such devices is considered an adult-related business and is subject to strict location restrictions. Adult-related businesses are not allowed in Folsom's historic district or in any other area close to homes, schools or churches.

Fighting the suit has cost Folsom about $80,000 in outside attorney fees, City Attorney Bruce Cline said. He said a vigorous defense was important to uphold the ordinance.

"If the city were to have lost this case, 25 percent of any store on Sutter Street or East Bidwell or any other street" could have been devoted to the sale of adult-related sexual devices, Cline said.

Dufour's attorney, Greg Garrison, argued Friday that the city's ordinance is vague and contradictory.

He focused on one sentence in particular that prohibits, with several exceptions, "devices with non-sex-related utility being marketed ... in a manner promoting sexual or sadomasochistic uses."

Garrison said that language unfairly allows Target or Wal-Mart, for instance, to sell toy handcuffs, while similar handcuffs could not be sold at Ms. Teaz, because, in that context, they would be marketed for their "sexual utility."

That apparent contradiction should raise First Amendment alarms, he argued, because the legality of selling a product is being determined by the way it is marketed.

Connelly rejected that line of reasoning.

In his ruling, the judge said a marketing restriction can't be "bootstrapped" into a free-speech issue.

"If you follow that to its logical conclusion, then every product would fall under the First Amendment. That's not the law," Connelly said.

The judge also found that Folsom's ordinance distinguished clearly between allowed and prohibited items.

"In the real world, there's always a continuum of specificity," he said. "A reasonable person can make a determination about whether a product (falls) within the constraints of the ordinance."

After the ruling, Misty Dufour said she would consider an appeal. Her legal fees stand at roughly $75,000, she said.

As an aside, Dufour said that her attorney had received a letter several days before the hearing in which the city offered to take over the lease on her store, which is set to expire in about four years.

Cline confirmed that the letter had been sent. He said some "private individuals" are interested in assuming the lease for the Ms. Teaz space and had contacted the city. The letter was intended to notify Dufour of the private offer, and no city funds would have been involved, he said.

Dufour said Friday she was not interested in the offer.

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