Keep Johns Creek Safe

According to this article in the Johns Creek Hearld, Mr. Cornetta’s legal team is preparing for the April 2nd occupation tax and business license public hearing. Love Shack attorney Cary Wiggins of Cook, Youngelson and Wiggins, describes the strategy:

“To some degree, what I do is in reaction to what they do, and they probably already know what they are going to do. They are sort of controlling our fate,”

Either Mr. Wiggins is playing it close to the vest, or he realizes that the deck is stacked against him and he will need to get ready for the appeal.

If the business license is denied, Cornetta and his attorneys will have 30 days from the hearing to appeal it through the Superior Court of Fulton County.

However, Mr. Wiggins is claiming to be optimistic:

Cornetta and his attorney will wait to see the outcome before planning their next move, but they are optimistic, said Wiggins.

These comments do not portray a confident legal team that has it act together and is a far cry from the usual in your face comments that Mr. Cornetta and his legal team have made in the past.

I am sure that Mr. Cornetta is hoping that his attorneys will have more legal success against the City of Johns Creek, than his attorneys have had against Fulton County. Mr. Cornetta’s legal team has lost every legal battle up to this point, and is only open due to the fact that the Fulton County no longer has jurisdiction due to the creation of the City of Johns Creek late last year.

We do know that the City of Johns Creek, has denied the Love Shack a regular business license based on the following:

• Cornetta’s business license application claims the Love Shack is not a sexually oriented business, although the city says the business does meet the standards stated in its ordinances.

• The Love Shack is operating within a district that is not zoned for a sexually oriented business. It is also operating within 1,000 feet of a school, which is a violation according to the ordinance’s limitations on location.

The city will grant a sexually oriented business a license, but not in a commercially zoned area. Such businesses are reserved for land zoned for industrial use.

• The Love Shack was found to be operating unlawfully by the U.S. District Court for the Northern District of Georgia in “10950 Retail LLC v. Fulton County, Georgia.”

The article claims that Johns Creek code enforcement officers have been monitoring the store and found that it does mean the definition of an adult business under Johns Creeks’ laws:

Johns Creek code enforcement has been monitoring the Love Shack and its merchandise since the superstore was found to be in contempt by U.S. District Judge Thomas Thrash.

Based on its findings, code enforcement staff recommended the store be denied a regular business license.

The hearing is set for 2 PM on April 2nd in the Johns Creek Council’s temporary chambers. The hearing examiner will have five days to render a decision. This would mean that a decision will be given by April 9th.

More information has come out regarding the Love Shack’s business license application with the City of Johns Creek. The Love Shack applied as a regular business and according to this AJC article, explicitly stated that they would not be operating as a adult business establishment under the City of Johns Creek new adult entertainment ordinance.

The AJC article quotes, Johns Creek city manager John Kachmar’s letter to the Love Shack:

“The application contains materially false information,” said a March 8 letter from City Manager John Kachmar to Cornetta. “The city’s business license application form asks ‘Will your business be an adult business establishment [sexually oriented business] . . . You responded in the negative. This is materially false . . . “

According to the AJC article, Mayor Bodker has given the Love Shack three choices:

• comply with the law and stop selling adult material;

• ask to have the property rezoned;

• move to a location where adult businesses are allowed.

The owner of the Love Shack, Mr. Cornetta says there’s a fourth option — lawsuit.

“They’re picking on the wrong gunslinger,” Cornetta said.

Cornetta’s attorney, Cary Wiggins, said the finding may be a precursor to an effort by the city to padlock the store, which has stirred passions and controversy since it opened Nov. 29, just before the newly incorporated city became a functioning legal entity on Dec. 1.

“This means they’re either not going to tax us, or try to shut us down,” he said. “And I don’t think they’re going to let us operate for free.”

The AJC article then goes on to give details on going case between the Love Shack and Fulton County:

Cornetta is still in federal court trying to fight Fulton County for denying him a business license. Cornetta claims the store’s inventory met the county guidelines for a regular business license, but the county refused. The county won some hollow victories in court — the judge ruled in its favor and then stayed the orders, allowing the business to stay open. Now that Johns Creek is a functioning legal entity, the county is washing its hands of the matter.

Wiggins said Cornetta sought a business license from Johns Creek in an effort to comply with the law.

“That’s just good practice,” he said. “When you go to court to claim you’ve been harmed, the judge is going to ask, ‘Well, did you try?’ “

The case will go to appeal before a hearing on April 2^nd before a hearing examiner.

Questions that will need to answered:

1. What makes Mr. Cornetta think that he will be able to get a regular business under the Johns Creek adult entertainment ordnance, when he could not get one under the less strict Fulton County ordinance?
2. What impact will the Federal court case between the Love Shack and Fulton County have on the Love Shack’s legal fight against the City of Johns Creek?

Closing Thoughts

Besides this being a legal battle between some of the countries best adult entertainment attorneys, it has become a test of the will between Mayor Bodker and Mr. Cornetta. One is a rising political star, the other the porn king of Atlanta. Two strong personalities and successful businessmen going toe to toe. This will be an interesting battle to the end.

Of course we believe that the City of Johns Creek (and their super attorney Scott Bergthold) will prevail in the end, but it does make for good drama.

According to this Johns Creek Hearld story,  the City of Johns Creek has taken the first step in trying to close down the Love Shack.  This is the first step in what will probably be a year long legal process between the City of Johns Creek and the Love Shack owner, Mr. Cornetta.

John Cornetta, owner of the controversial adult retail store Love Shack, has been sent notice that the city intends to deny his application for a business license for the Love Shack.Cornetta applied for a business license last month but did not apply as a sexually oriented business. He has always contended his business does not meet the definition of a sexually oriented business. The city’s position is that the Love Shack does and therefore falls under more stringent criteria for a business license, including locating in a more restrictive zoning area.

“He has to have not only the regular business license, but he has to meet the criteria for a sexually oriented business,” said Bill Riley, acting city attorney for Johns Creek.

There has not been any response to the notice from Cornetta or his attorneys as of press time, said Riley.

Cornetta is entitled to an appeal, which would be scheduled for April 2 pursuant to the ordinance. At that time, an appeals hearing officer would decide if city staff made the appropriate determination based on his application.

If a city appeal were denied, the next step would be for Cornetta to appeal to the Superior Court, said Riley.

The controversial adult business is in a commercially zoned area, while city ordinances state adult businesses are only allowed in industrially zoned districts.

In a case that seems to be similar to the Johns Creek Love Shack case, an adult business in Spencer County, Indiana was order closed by Spencer County Circuit Court Judge Wayne Roell. The business operated for over one year without a proper business license.

The Fort Wayne New-Sentinel reports on the details of the case:

Circuit Judge Wayne Roell sided with Spencer County in its attempt to enforce an ordinance that bars adult businesses from operating within 1,000 feet of churches, schools and residences.

Attorneys for the Adult Plaza bookstore had argued the ordinance was unconstitutional.

“Adult businesses have not been denied a reasonable opportunity to open and operate,” Roell said in his ruling Friday. “The regulations restricting operations within 1,000 feet of a residence are valid.”

One of the more interesting aspects of this case is the fact that both the lawyer for Johns Creek and the Love Shack were involved in the case:

The case was fought in part by nationally known attorneys on both sides. Owners of the Adult Plaza hired H. Louis Sirkin, a Cincinnati lawyer considered one of the most experienced obscenity trial attorneys in the country.

Spencer County retained lawyer Scott Bergthold of Chattanooga, Tenn., along with Wetherill and county attorney Francis Lueken. Bergthold has helped many communities write laws regulating adult businesses.

Our congratulations go out to the citizens of Spencer County and Scott Bergthold. More details can be found at this blog.

After operating for over three months without a business license, Mr. Cornetta has applied for a regular business license, according to a recent article in the Johns Creek Hearld.  Mr. Cornetta is claiming that his store does not meet the definition of an adult business.  The article does not say if he is basing his claim on the old Fulton County ordinance or the much stricter and newly implemented Johns Creek ordinance.

Back in November Mr. Cornetta claimed that he could remain opened for 30 days without a business license.  Federal Judge Thrash denied Mr. Cornetta’s attempts to force Fulton County to give him a regular business license and fined him for operating an adult business.  At the time, Judge Thrash did not force him to close, only to significantly reduce the amount of adult material in the store.

The 30 day window of legal operation without a business license passed and Mr. Cornetta did not apply for a business license.  However Fulton County no longer had jurisdiction and the City of Johns Creek either did not or could not force the Love Shack to close even though they were operating without a business license.    

Now it seems that this matter will come to a head quickly, as the City of Johns Creek is quoted as saying they will be acting on the application this week.  No matter what the outcome we can be sure that the legal battles will continue. 

If Mr. Cornetta is denied a regular business license (as is expected) will he then be forced to shut down or will he continue to remain open illegally without a business license?  If by some miracle a regular business license is granted, how will Mayor Bodker explain this to the citizens (and voters) of the new city of 63,000?

Here is the article in full from the Johns Creek Hearld:

John Cornetta has applied for a business license for the Love Shack, the adult business on State Bridge and Jones Bridge Road.The catch is, his application is for a regular business license and not a sexually oriented business license.“The application is under review to determine if it meets the standards in Johns Creek. Same thing for any business,” said Mayor Mike Bodker.

Cornetta opened the Love Shack without a business license Nov. 29 under a Fulton County ordinance, which states a business may open without a license but must get one within 30 days. That was mere days before jurisdiction passed from Fulton County to Johns Creek.

The controversial adult business is now in an industrially zoned area, while city ordinances state adult businesses are only allowed in M1 and MI-A districts.

Cornetta is arguing that his store does not meet the definition of a sexually oriented business. He is suing Fulton County for not issuing the license when he originally applied.

“No action has been taken on it with Mr. Cornetta, but action will be taken this week,” said Sheryl Boell, deputy director of Operations for Johns Creek.