your honors both the court and the apple e in this case if you look at the argument in the court did a bit of a unique ruling they said its ruling from the bench was in fact the order that we're appealing from but in the oral arguments and in the ruling of the court on nine separate occasions both the abilene in the court argued that the city of written case in the alameda bookstore case controlled as supreme court precedent for this particular issue o position is that is an accurate st of all if you look at the city of britain versus playtime theater case this is a case decided in one thousand nine hundred and eighty six in it talked about secondary effects of adult theaters in the fact that the city of rand was entitled to rely on other findings of other cities specifically the supreme court ruling in the state of washington in the north in cinema opinion about adult theaters zoning i undisputed that my client had no videos for sale it is not a theatre there was no live entertainment so the city of written case in a given city burned goes on to talk about that you have to rely on evidence from other places to make the determination about this particular level of scrutiny for a supreme court issue on st amendment counsel i want to ask you about about that point doesn't that hurt your case not help but in other words if you were selling if there is the sale of books or videos there would be a potential st amendment interest here but my understanding is those things are not being sold and that's that's pushed in the briefs and so i don't quite understand what the st amendment interest is at all there into mine particular client was they all said including the judge said specifically city of renton and alameda books controls our position is it is what is being sold is the speech well it's not a book  given your own are one prepared for that question will have to indulge me your honor it's content based because they're objecting to what is being sold because of the purposes that it is to be used for and simon and schuster versus members of new york state talks about when you have a content based regulation which we believe the one in question one hundred and forty one dollars through two it is content based it's talking about sexually related conduct or sexual related products both the court and the apple league both contend that my client is an adult bookstore and that's why the statute applies to them if the court rules that we're not an adult bookstore the statute doesn't apply in this argument is over and because what they will do is moot they made the court made the from the sexual paraphernalia it's right to let's suppose that you want to open a gun store right next to an elementary school and zoning laws don't allow a gun store right next to an elementary school but i can't figure out what the speech component is i mean there may be some other issues there like takings or or some you know regulatory taking or something like that but i can't figure out what the speech component is and sort of the same thing applies here i can't figure out what st amendment interest there possibly is in opening up a store that contained sexual paraphernalia sure in your honor it again if your position and his position is true that's fantastic goo we win because the statute that they used preclude my client from opening is specifically addressed to sexual bookstores what the statute covers the sale of these sorts of sexual devices to right so i mean you still fall within the statutes definition according to my recollection of an adult bookstore it's just an adult bookstore that's not engaged in a particular kind of expressive speech the sale of the product is what got us into the issue and then you go down the road of the issue of principle and the fact that the statute itself has issues about how much is principle how do you determine principle if you recall in the record the court went through kind of an exhaustive inquiry about the percentage but that's your nd or rd right so it's not clear to me that that if there no expressive speech that you win on the st that there's no expressive speech in the statute wouldn't apply because they're making a determination that this is a bookstore this was an adult book store there is a specific finding by the judge that this was an adult bookstore pursuant to the statute argument have merit if they said anything that's covered by the st amendment or where there's a speech component they can open up within a one thousand feet of this that or the other thing then you then you have a pretty good argument all we have the definition of that includes with an adult bookstore and other other sexual items i don't use i'm still not tracking what you're saying yes or no and i'm probably not tracking your question your honor very much my issue is the fact that the court ruled and held on nine separate occasions in it ruling city of renton is what is it he said the reason i'm ruling this way is a city of or in case in the alameda bookstore case that's what he's if we found repeatedly that's what they've argued in their briefings that's been the standard throughout this if it is not a speech issue and there is no st amendment component and we can sell whatever the we want our position would then be that the statute doesn't apply to they have said the justification for this statute the reason we get to use this statute is because he's terrible secondary effect which are related to adult theaters and we know they're related to adult theaters because written is only about adult theaters and alameda is only about adult theaters and most importantly in your own time this is something i've had to deal with every time i've been in front  scintilla of evidence about anything about secondary effects they have presented no evidence whatsoever about the secondary effects about a retail establishment that thirty percent of what they sell is sexual in nature there's none you can't find it so city of renton and alameda books both held there has to be evidence for the basis of the zoning requirement don't you think that maybe there's no evidence but don't you think the same secondary effects that would apply to somebody to up a store that sells videos pornographic videos you know erotica and other such things would apply equally to a store that sells sexual paraphernalia absolutely not and let me speak to that your honor you just said in the civil rights case we just talked about you talked about comparative wars this court has ruled so many times in civil rights cases when you're comparing things they've got to be to like in all relevant respects and i understand those are comparatives and civil rights cases but in this particular case the findings and again your point about wouldn't you expect this court doesn't based on wouldn't you expect there's no judicial notice of secondary effects or has to be evidence and there has been none we can all assume things but in my experience you can't assume something is a basis of a ruling if you're going to make a finding to finding has to be based on evidence and the apple east presented no evidence the court cited no evidence that it was relying on they merely held up alameda books and written and said these are the standards and to supplement the record with evidence renewing the theory that just fine it's ordinance there has been absolutely no evidence it was spoken about one time in the oral record now that when this statute was written it talked about secondary facts it was merely the mention of the phrase secondary objects it didn't say these are the secondary facts these are the studies we're relying on none of that was presented to the court so there's no basis assuming alameda replies which that not specifically asking what the standard but we put the the state legislature to test your i mean my sense is it's a rational basis test and i'm wondering if you can see that yes or it is a rational basis to ask and let me speak to that honor if you apply a rational basis test in this particular statute you have to look at the fact that it's not what my client is selling because everybody conceded and it was stipulated in court wal mart c v s walgreens all these various places sell items that are specific and specifically sexually related as defined by statute it's how much my client sells so then you've got to look at how do you determine how much do you determine by floorspace i don't know if stat didn't say term by revenue i don't know statute doesn't say gross revenue or net revenue i don't know because it doesn't say the court said about this particular issue perhaps six different times and how he was going to interpret the statute perhaps you do it this way perhaps you do it thank your honour's may please the court my name is dillon jacobs i'm an assistant solicitor general with the arkansas attorney general's office and i'm here representing the state as an intervener in this matter you have to be before this court for the st time before i get into the presentation that i have prepared i could of like to turn to your question your honor about whether that there is a st amendment interest in this case and i will readily admit this is not something state rates below this is not something that we sells as one of its principal business purposes sells an instrument devise or paraphernalia that's designed for use in connotation with a specific sexual activity in specific sexual activities defined for them it was stipulated below that adam and eve half of the inventory that a plan to sell what's sexual devices that would would fall under the part to be that would account for thirty percent of its sales and the other items that adam and he was intending to sell was and shoes novelty items that just don't fall under the regulation of the statute and so i don't think there's a case out there that says that selling sex toys condom and condoms lubricants but those types of items get st amendment protection it's a simple if anything a rational basis review like others zoning laws get and i will now readily admit this case was decided under the general framework and written for sexual oriented businesses which would country arkansas has an acted zoning restrictions to curb the negative secondary effects of a door into businesses and i created seven prohibits those adult oriented businesses from opening within a one thousand feet of certain sensitive locations such as school childcare facilities and places of worship to do address opposing counsels point that there's there's no evidence i understand there to be studies but the studies were from other municipalities there is said the same kind of studies i think that were submitted in some of these supreme court cases like renton that we've been talking about is that correct and is that meet the burden for showing the secondary effects it is correct your honor that there are no studies that i'm aware of in the cases that the general simply cites which was earlier point that this is not a category of regulation that typically falls into the st amendment it's contained of course within a statutory scheme that generally does and all of the other i think there's adult massage parlor parlors that i think it's something that's questionable as well  but generally we're talking about a new live performance and things like that that are the typical kind of case that the supreme court in this court have reviewed under the written framework having said that even if we assume that the written framework would apply to the subcategory of regulations issue this supreme court in this court have said that you don't need that granular evidence when you're dealing with a business that would generally satisfied what some would think is an adult use so i think  cattle city case for instance this court said that once a government decides to regulate adult uses that it's not required to show evidence of specific adult uses that as long as it's reasonably related i think to the kind of businesses that you're relying on the studies for and that's ok that's that's perfectly in line with alameda's direction that very little evidence is required for governments to regulate the secondary effects of adult businesses so the standard upon written would be as it is it reasonable to think that for a government to think that regulating a store that only would sell sexual devices could produce the same sort of secondary effects as other adult  bookstores which were the kind of things that were issued at issue in the books i think that's perfectly reasonable and again it's going to be very difficult for a city to come up with a study to study the effect secondary effects of a business that only sells sexual devices and not  other adult materials like books and movies which as a general matter stores like adam and eve still both at need nationally sells both and i think it was only apparent in this case maybe closer to the bench trial or maybe even at the bench trial that the only items that adam and eve was intending to sell that would fall under the purview of the statute were for sexual devices and what about in the equal protection context suggestion that wal mart  and certainly i think it is it is perfectly rational for a legislature to conclude that a business like walmart like c v s for example that might sell condoms and lubricants incidentally as a part of their much larger business don't produce the same sort of secondary any given year was certainly wrong but i think the focus of the secondary effects analysis is people walking up to a store and what are they purchasing their purpose when people go to walmart they're there buying lots of things or buying groceries you know this is an average average everyday people visit these types of stores of stores like adam and eve or different people go there looking for particular products and the general assembly laid out that the negative secondary effects that these these adult businesses rational basis analysis for the general simply to conclude that as dispensers i think it was pretty well discussed below that the reason that spencers didn't come within the statute whether or not it had a primary excuse me a principal business purpose of selling those kind of items was grandfathered that which is also a perfectly rational basis for a general assembly design a statute to say that we're not going to up in the reliance interests of these kind of businesses  assuming that the rent framework applies i think the district court's finding that this is a that the statute purpose was was directed the secondary effects is perfectly permissible i don't understand the appellant to be challenging that finding on appeal  and i think it was undisputed below that that the act doesn't foreclose adult businesses from opening in jonesborough or anywhere else in the state and i don't understand appellant to be to be challenging that finding below terms of the evidence is needed it's very little of the court said that in alameda justice kennedy is controlling opinion indicated that he would bring with that that as long as the statute is directed at ameliorating the secondary effects and not at producing the speech for the appellant repeatedly made my point for me arguing very little evidence is required to in the bar under city of el nino written but some evidence which required a scintilla of evidence for it and there's none here not one argument was made you didn't have to do a specific study in jonesborough you could have done what they did in city of britain where they sided to other statute i'm sorry other studies that other cities had used they didn't do that supposed council that were in a rational basis land you've already conceded to judge kobus on equal protection where in a rational basis land suppose we say there's no st amendment interest here as well and so we're really back in rational basis land again the supreme court has made clear you don't need studies that as long as we can hypothesize and entrusts that that's good enough for purposes so do you lose at that point because your main argument seems to be that there's no studies in the record or adequate studies in the record st of all let me be clear there's nothing in the record there's not studies there's no arguments or shown up and there is the utterance of the magic phrase secondary gain the court determines that the legislature has the ability to simply say we think they're not might be secondary gain for a retail establishment that sells thirty percent sexual related items on your own with this is so important if i can diverged quickly you kept saying half and that proves my point about the vagueness of the statute in the fact that you can't read the statute in the plain meaning understand what it means we're talking about thirty percent of gross revenues he's talking on half of individually counting items half is better for him than thirty percent is for me so he gets to use that the statute doesn't tell this court or anybody else how to interpret what they mean by principle because it's not define but if the court indicate the legislature can simply say we think there might be some secondary gains with no evidence no evidence because that's what we have here then you're right we lose i would also address the equal protection argument it is been undisputed that the city of  gave my client a specific business license not once but twice to conduct business at the location where they are located that was done twice they are new that doesn't give you the ability to open a none sexual absolutely not because that's not my client my client is out of money to doan's for it which is a completely different separate legal entity in the fact that they argue about national websites is a misnomer because that's not my client my client is adam and eve jonesborough not selling videos that it's under spew did not selling anything as far as periodicals with things of that nature the fact that other people with the same name of adam and eve might do something else is immaterial o there is a franchise but this particular business doesn't do any of that and it's important to make that distinction because when you look at what the city of jonesboro said about this call for the privilege licenses it was all on a wink and  they didn't know what this particular store did they didn't know what this location was going to do they simply said we're not going to allow this even though we've given you a privilege license not once but twice and if they're no more questions that is my time thank you thank