Firm sues Brewer for denial of adult books, video store

BREWER – A company seeking to open a retail store on South Main Street that would contain a section with adult books and videotapes is suing the city of Brewer in federal court for alleged freedom of speech violations, among other constitutional claims.

Northshore Distributing Inc., whose president is Clifford H. Tumosa of Dover-Foxcroft, claims the city’s ordinances make it impossible for any business featuring adult entertainment to be located within Brewer.

Northshore Distributing’s owner is listed as B&L Auto Parts, 99 South Main St., Brewer, on the site plan review application filed with the city July 25, 2002.

The business is seeking a preliminary injunction that would prevent the city from denying it the right to open the book and video store at its planned location at 583 South Main St.

The firm already has spent more than $70,000 for repairs and renovations at the building, according to Barry Covert of New York City, lead attorney for Northshore.

Covert said Northshore has attempted to reach an amicable agreement with the city over the issue without success. He said a consultant had tried to determine where an adult-oriented business could locate in Brewer under its ordinances but could find no location.

The city’s Adult Use Establishment Article and Land Use Ordinance are, therefore, unconstitutional, according to the lawsuit.

“They are preventing us from operating on South Main Street and providing nowhere for us to operate in exchange. They are not allowed to ban all such speech, especially where it’s constitutionally protected,” said Covert on Wednesday. Covert said the section of the store with pornographic materials would not be accessible to minors.

Brewer city attorney Joel Dearborn said that, contrary to Covert’s statements, he had the city planner and code enforcement officer “take a look at it and they disagree with the [lawsuit’s] conclusion.”

“There are certain areas that allow [such a business] to locate. The ultimate decision will be made, of course, by the judge,” said Dearborn. The city attorney said he had a not yet been served with the civil lawsuit, which was filed June 2, so he could not comment on particulars.

The lawsuit claims violations of the First, Fifth and 14th amendments. Payment of attorney fees is sought, though other damages aren’t specified.

To date, Northshore has not opened the store.

A hearing on the preliminary injunction will be scheduled for the near future. If not settled, the case could be ready for trial within a year.

“Northshore intends to sell and rent to the public various videotapes, films, DVDs, electronic camera and surveillance equipment, magazines, books and toys,” the lawsuit states.

“It is intended that less than 40 percent of all products available for sale or rent shall be of an adult, sexually explicit, but not obscene nature,” the lawsuit stated.

There would be no “peepholes” or rental booths at the place of business. “All consumption of products sold and rented is to occur away from the Northshore premises,” the lawsuit states.

According to the lawsuit, the Brewer planning board approved a site plan review for the business on Aug. 5, 2002.

But the city’s code enforcement officer, David Russell, later denied the application for a certificate of occupancy and advised Northshore that it could not open. According to the lawsuit, Russell stated that “he had previously been unaware of the stated intention of Northshore to provide adult materials.”

To date, Northshore has not opened the store.