Hustler Sues Fresno for Blocking New Retail Spot

Hustler is lashing out at Fresno for being denied a permit to open up another storefront of its retail chain in the Central California city.

HH Fresno LLC, an affiliate of the explicit adult magazine and web site Hustler, earlier this month sued the city and its Development and Resource Management Department in federal court, claiming its First Amendment rights have been violated by the city’s moves to prevent a Hustler Hollywood store from opening.

Hustler operates the chain across the U.S. and several in California selling a full range of lingerie and bath and body goods, along with souvenirs and adult items.

Although Hustler in November 2015 contacted city officials in order to “insure compliance” with Fresno’s zoning and business codes, and received specifics on how much merchandise could be “adult themed” to be allowed retail zoning, Fresno allegedly changed the rules without notifying the company.

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City officials could not be reached immediately for comment and have yet to file a response to the complaint.

Importantly for Hustler, the city changed the language around the amount of adult merchandise that would push a retailer to be designated as an “adult bookstore” outside of the location’s zoning laws, but Hustler allegedly had no knowledge of the change until after it signed a 10-year lease.

When Hustler filed its letter of intent to secure a 5,576 square foot space in a general retail zone, no more than 25 percent of the store’s square footage could be dedicated to “adult devices.” But immediately after this, the city allegedly changed the maximum to the lesser of 25 percent or 500 square feet, regardless of a store’s size, according to the complaint.

“Consequently, a retailer with a 50,000-square-foot establishment would be subject to regulation as an ‘Adult Bookstore’ if 500 square feet (or 1 percent) of its wall space, display space, or inventory were allocated to merchandise the defendants determine to be ‘adult material,” the company said in its complaint.

Hustler added that the revised city code includes a preamble indicating such regulations “are necessary to prevent potential secondary effects associated with ‘adult-oriented businesses,’” without citing any supporting evidence for that stance.

While the company has urged Fresno to consider its necessary business application under the code as it existed when the letter of intent was filed, the city has finally denied one application and allegedly given no timeframe for when it will decide on another.

“Plaintiff’s revised zone clearance application remains in a state of limbo, with no indication as to when the department will (if ever) issue its decision,” the company said.

Hustler went on to claim that it’s not only suffered economic harm due to its lease of a space it’s been unable to use, but also that its First Amendment rights have been “systematically squelched at the hands of defendants.”

The company asked the court to declare that Fresno’s retail zoning code as revised puts an illegal restraint on protected expression and award it unspecified damages for lost profits and costs associated with the unopened store.