A West Valley City store specializing in sexually themed goods has come out victorious after yearlong legal dispute with the city and will be allowed to sell lingerie.
The disagreement hinged on a city ordinance that classifies “lingerie stores” separately — and, a lawsuit argues, discriminately — from both a “sexually oriented business” and a general retailer. Hustler Hollywood argued that the city broke its assurances that its Decker Lake Station location would be classified as a general retailer and be allowed to operate unfettered.
Hustler Hollywood representatives had connected with West Valley City officials in September 2021 and February 2022, and were assured their planned retail mix was such that the business would not be classified as a “sexually oriented business” and could operate as a general retailer in that zoning area near 2200 West and 3500 South.
However, according to the lawsuit, they were blindsided by the city’s decision in summer 2022 to withhold a business license because the store planned to sell lingerie.
Attorneys for Hustler Hollywood first appealed the decision, then tried to change the law. Neither tactic worked.
So they filed a lawsuit against the city in July 2023, asking a judge to stop it from enforcing its delayed business classification decision. The lawsuit also argued that the city had violated the store’s First Amendment rights against “discriminatory municipal action” by limiting where it can conduct business by relying on vague definitions of “lingerie,” “adult novelties,” “adult marital or sexual aids” or “adult establishment.”
The city, the lawsuit argued, “prohibits conduct without providing sufficient notice to give a person of ordinary intelligence an opportunity to know what is prohibited.”
It added that “[t]hese overbroad and unduly vague regulations chill expression of [Hustler Hollywood] and others and provide a real and substantial chilling effect on legitimate expression.”
However, it was the city’s about-face in July 2022, according to court papers filed in September in Utah’s U.S. District Court, that ultimately led to the two side’s agreement and the case’s subsequent demise via a stipulated judgement last month.
Hustler Hollywood’s West Valley City store, which has been operating without lingerie sales since January 2023, can now sell intimate apparel.
“We are pleased with the outcome of this case and are grateful that our constitutional rights were upheld,” said Liz Flynt, chairwoman at Flynt Management Group, which owns Hustler Hollywood. “This victory ensures that our West Valley City customers can shop the full range of products we offer.”
West Valley City spokesman Sam Johnson did not give additional comment on the case, although he noted it was a “mutually agreeable settlement.”
Liz Flynt is the widow of Larry Flynt, who founded the porn magazine Hustler in 1974. Hustler Hollywood, an offshoot of the magazine, now has 59 stores in 24 states, according to the company’s website.
What is lingerie?
Hustler Hollywood representatives reached out to West Valley City in September 2021, expressing the company’s interest in opening a store.
“If those items are limited to a ‘specialty area’ which is prohibited to minors and screened from view, and makes up less than 15% of the retail floor and/or shelf space,” Hustler Hollywood representative wrote in an email, according to the lawsuit, “would the store be classified as general retail?”
West Valley City code defines a “sexually oriented business” as one that has stocked more than 15% of its inventory with erotic materials. Hustler Hollywood planned to avoid this designation by ensuring most of its inventory be “clothing items such as novelty T-shifts, swimwear, pajamas, and women’s intimate apparel,” according to the lawsuit. They also intended to advertise lingerie and cordon off a small section to sell more explicit adult materials.
(HUSTLER Hollywood) | Experience the “elevated shopping experience” for yourself.
A city zoning administrator responded to Hustler Hollywood’s inquiry the same day, saying, according to the lawsuit, “[I]f it’s a retail store and the adult products are less than 15% of the floor area then it is not an adult business and would be considered general retail.” The employee mentioned that the Utah store chain Blue Boutique — which advertises itself on its website as a proprietor of “Sexy lingerie, Sexy Shoes and Sexy adult merchandise” — has a West Valley City location and is classified as general retail.
With this confirmation, the store signed a longterm lease at its location in early 2022 and sought a business license.
However, on July 18, 2022, the company received a letter from West Valley City denying their business license, saying the retailer met the definition of a lingerie store and could not operate as such within the zoning district where it had signed its lease.
The city had found that the business’s plan appeared to be a “lingerie store,” which means more than 5% of its retail space is devoted to the sale of lingerie, adult novelties and adult martial or sexual aids; or that those items make up more than 5% of its gross sales; or that the store markets itself as a lingerie store or “adult establishment.”
Attorneys for Hustler Hollywood bristled at the designation and argued that “if a retailer sells or markets a small amount of the combination of products that fall within (these) vague and undefined categories, ... that retailer is prohibited from operating in two-thirds of the commercial zones within [West Valley City].”
Hustler Hollywood appealed the city’s decision and began to negotiate with West Valley City. In the meantime, the store opened — sans lingerie.
In March 2023, the company submitted a proposal to change West Valley City code and nix the “lingerie store” definition, arguing it was arbitrary and violated the First and 14th amendments.
“There is no legitimate governmental purpose furthered by restrictions on the sale of lingerie, and there are no studies or findings of deleterious effects of selling lingerie that support such restrictions (at least of which I am aware or could find), and therefore there is no rational basis for such a restriction,” Hustler Hollywood representatives wrote, according to an exhibit in the lawsuit. The representative also said there was no rational basis for the restricted percentage of lingerie being sold.
The representative noted that the city already permits lingerie sales at “every department store anchor tenant in every mall,” at stores like Ross Dress for Less, JCPenney, Old Navy and rue21.
Scott Sabey, an attorney for Hustler Hollywood, made his case to the public at a May 23, 2023, City Council meeting, arguing that the city had already outlined the rules for a sexually oriented business in those ordinances and didn’t need a separate one specific to lingerie, which he said was vaguely defined. He added that other businesses that sell other products — like “jackets and dresses and athletic gear” at Walmart and Kmart — can sell lingerie.
“It’s like saying you can’t sell a dress,” Sabey said.
A few residents reacted to Sabey’s proposal. Kelly Bertoch agreed with him.
“Are we moral officers here now? Who are we to tell somebody what they can and cannot wear? You can buy this stuff at a regular store. It’s no different than buying a pair of underwear or a brassier for women...,” he said. “We’re not the moral police department and there shouldn’t be one. This is America, where we have the right to be able to enjoy our freedoms, and you guys are slowly taking our freedoms away by [saying], ‘Oh, it’s immoral.’”
Kyle Erb agreed with some of what Sabey said — that the definition of what constitutes lingerie is “poorly written” — but he was concerned about the law as it related to other businesses that sell adult material. In particular that it apparently allowed another well-known adult store to open less than a mile from Granger High School. He said the store featured explicit advertising that students could see as they walked by.
Terry North pushed back on Sabey’s assertion that lingerie was sold without issue in other stores, such as Walmart. He recalled a time he walked into that store and saw “crotchless panties.”
“I could name all kinds of stuff that are not in a Walmart, and they are definitely adult-oriented,” he said.
“I agree we need some freedom, but it has to be time, place and manner,” North continued. “We need to look at this code and adjust.”
Council members voted unanimously the next month to keep the ordinance as written.
