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Judge considers Trevor’s Toybox owner’s appeal against Pembroke zoning board

Evelyn Carey pauses in front of the Trevor's Toybox storefront on Main Street in Pembroke; Monday, March 18, 2013. Since then, the display in the store window has been changing consistently.

Evelyn Carey pauses in front of the Trevor's Toybox storefront on Main Street in Pembroke; Monday, March 18, 2013. Since then, the display in the store window has been changing consistently.

A Merrimack County Superior Court judge yesterday stared down from his bench and addressed perfunctory questions to the lawyer for Pembroke business owner Larry Preston.

“Could these handcuffs be used for anything else?” Judge Richard McNamara asked, his voice stern.

And later, “Where else would whips be sold?”

Lawyers yesterday argued over how what they termed “the BDSM lifestyle” relates to Trevor’s Toybox, the shop where Preston hopes to sell leather clothing, handcuffs and whips on Pembroke’s Main Street.

Now, the judge will need to rule on whether the Pembroke zoning board could block Trevor’s Toybox by claiming the bondage items it would sell are sexually explicit.

In May, the zoning board barred Preston from opening the shop in the town’s central business district, where property cannot be used for “passive adult entertainment.” Pembroke’s zoning ordinances cite examples of passive adult entertainment uses, including sexual paraphernalia stores, adult video stores and adult bookstores.

The town says Trevor’s Toybox violates that ordinance because the store would sell bondage items to “cater to sexual preferences, tastes and activities,” according to court documents. The store’s business card defines the store as “meeting the demand for BDSM equipment.”

A small footnote in the town’s court filings cites an internet search for “BDSM defined,” which produced “countless pages devoted to a description of ‘bondage, dominance, submission and masochism.’ ”

“This is a retail store specializing in the sale of paraphernalia used in the erotic touching of body parts,” town attorney Chris Cole said in court.

Preston filed a lawsuit in June to reverse that decision, claiming the items he would sell in the store can easily be purchased at other businesses.

“For example, Walmart sells handcuffs,” the documents state. “A store called Party City in Manchester has children’s handcuff kits. The Army barracks in Salem has handcuffs. Tractor Supply sells whips for pigs and horses. A store called Spencer’s in Concord sells whips and handcuffs. One can buy leather jackets and leather chaps at a Harley Davidson motorcycle shop.”

The items in Trevor’s Toybox could also be used for nonsexual purposes, argued Finis Williams, Preston’s lawyer.

“If a person were to buy a leather jacket and a whip from Trevor’s Toybox so that person could be Indiana Jones for Halloween, that would not constitute a passive adult entertainment use,” the suit reads.

The Trevor’s Toybox website does sell sexually oriented items, Preston has said, but those items would not be sold in his Pembroke store.

“The type of items he’s buying, even if the items he’s selling are bondage items, they’re not necessarily related to sex,” Williams told the judge. “We do refute (the town’s) assertions that anything related to bondage has to be related to sex.”

But the town’s lawyer called those arguments “red herrings” in court yesterday, saying the items in Trevor’s Toybox are meant to be used sexually.

“The highly sexualized or erotic nature of the Trevor’s Toybox website, which is entirely focused on BDSM and bondage equipment, fundamentally contradicts (Preston’s) contention that BDSM and bondage have no connection with sex, and supports the ZBA’s conclusion to the contrary,” the town states in court filings.

The town also defended its ruling that the store’s window display was in violation of the zoning ordinances for adult entertainment, which do not allow any sexual paraphernalia to be visible from the outside of the building.

The window display originally included two mannequins scantily dressed in leather outfits, holding handcuffs and whips. Cole said yesterday the window display is “something you don’t often see at tractor supply stores.”

“The town of Pembroke is cultivating a traditional, family-friendly center of town. . . . To that end, the Town Zoning Ordinance reasonably confines passive adult entertainment to other parts of the town,” the town’s court documents state.

Preston has since removed the handcuffs and the whip from the window display, but his lawyer said in court the rest of the display should stay because it does not depict any sexual acts or show any “specified anatomical areas.”

“Trevor’s Toybox is not a sex toy store,” Preston’s suit states.

The judge will consider the arguments from yesterday’s hearing and hand down an order.

“You can’t regulate something you don’t like, and that’s what they’re trying to do here,” Williams told the judge yesterday.

(Megan Doyle can be reached at 369-3321 or mdoyle@cmonitor.com or on Twitter @megan_e_doyle.)

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