Love Shack Owner Sues Johns Creek Part II

According to this Johns Creek Herald article, Mr. Cornetta is suing the City of Johns Creek to get a sign. It will be interesting to see how much in damages Mr. Cornetta will be claiming. Will Mr. Cornetta have to show how much (or little) in sales the Johns Creek Love Shack is generating to get a monetary award from the City if he wins?  Or is Mr. Cornetta bluffing when it comes to suing for damages?  Is Mr. Cornetta open to letting the City of Johns Creek pour through his financial records?  Only time will tell!!!
Mr. Cornetta’s logic is simple, since Johns Creek’s ordinance does not state that you must have a business license to get a sign permit. The City’s position is that since it is not a legal busines it is not a entitled to a sign.

It is interesting that on the first line of the sign permit application it asks for the business license number:

http://johnscreekga.gov/pdf/forms/pz/SignPermitApplication2007-Jun.pdf

So while a business license is not a requirement by the sign ordinance according to Mr. Cornetta, it is required on the sign permit form.

The Love Shack has filed its first lawsuit against Johns Creek, naming in the suit specific city staff members for denying the adult business’s applications for sign and banner permits.

For months, the only indication of the Love Shack’s location at 10950 State Bridge Road has been a relatively small banner above the door. The Love Shack’s general manager has been cited on a regular basis for various banners since June 27. The city’s sign ordinance says that each day of a violation constitutes a separate offense – the number of violations totaled more than 80 by the end of August.

The Love Shack’s petition to Fulton County Superior Court is similar to that filed by a billboard company against the city earlier this year, which if granted in favor of the Love Shack, could force Sam Bishop, senior planner for the city, to give the business a sign permit.

Bishop is named literally because he signed the Aug. 3 denial letter sent to Love Shack owner John Cornetta. Bishop’s letter stated it is not “appropriate to issue a sign permit” because Cornetta had been denied a business license for the Love Shack. A second letter was sent the same day denying a banner permit for the same reason.

The Love Shack’s petition to Fulton County Superior Court says Bishop’s denial is based on “arbitrary criteria” and asks the court to declare that decision as beyond the scope of his power. Neither the city’s sign ordinance nor its zoning ordinance states a business license as prerequisite for a sign or banner permit.

The city’s sign ordinance states that the community development director shall deny “any application that is incomplete or inaccurate, contains false statements or omissions, or that is for a sign which would violate any standard within [the sign ordinance].”

Cornetta’s attorney, Cary Wiggins, states in the petition that the city has acted contrary to the law in denying its sign application because Love Shack meets the criteria of the sign ordinance.

But the city has a different take on that, citing the absence of logic in that argument.

“What’s the logic of issuing a sign to a business that does not have a license and is in essence operating illegally,” said Johns Creek Mayor Mike Bodker.

Cornetta said that’s not a legal argument. He said it’s the mayor and City Council’s job to create that law, instead of just saying it.

The Love Shack’s lawsuit also asks the court to quash the subsequent denial by the city’s Board of Zoning Appeals (BZA), and likewise it names the specific board members.

The board denied in October the Love Shack’s appeal to reverse the Community Development Department’s denial, citing the same reason given by Bishop.

The Love Shack’s petition says the BZA did not disclose any “facts or law” to support its decision, and thus the court should reverse it. Wiggins said last month he was not surprised by the board’s decision to uphold the denial.

The Superior Court has to hear the case. Neither party can submit further findings or call witnesses during the hearing, and the judge will be confined to only the information on the record produced by the BZA.

“I think it is a fairly narrow question,” said Wiggins. “The reason they denied the sign and banner permit are for reasons that appear nowhere in the code. I am comfortable that a court will recognize that.”

Lastly, the petition states the denial of the Love Shack’s constitutional rights entitles the store to recover lost income, due to the lack of a sign for months, and attorney fees.

“The city treated every other business in Johns Creek that applied at that time as equal citizens and gave them sign permits. For us, they wouldn’t. So is there damage? I think so,” said Cornetta.

The city must answer the petition within 30 calendar days from Nov. 19, the date the city was served, but is not uncommon for parties to request more time.

 

Love Shack Owner Sues Johns Creek

In yet the latest legal battle between the Love Shack and the City of Johns Creek, Mr. Cornetta is suing the city because they would not grant them a sign permit.  As expected, Mr. Cornetta is claiming loss of income due to the lack of a sign.  It will be interesting to see if Mr. Cornetta will open his books to reveal the sales and profit at his Johns Creek store.  Here is the AJC article:

The owner of an adult-themed retail chain is suing the city of Johns Creek – again – this time because the city has refused to allow him to erect a sign.

John Cornetta, owner of the Love Shack, filed suit in Fulton Superior Court on Nov. 15 saying city staff and the city Board of Zoning Appeals improperly denied him the right to put up a sign at his adult emporium in the heart of Johns Creek.

The suit says that Senior Planner Sam Bishop rejected Cornetta’s application for a sign because the Love Shack doesn’t have a business license. Cornetta’s suit said that’s not a good reason for denial because the city’s rules don’t tie sign permits to business licenses.

“They denied it because of who I am,” Cornetta said.

Cornetta appealed Bishop’s decision to the Zoning Board of Appeals and was shot down. Its members are named as defendants in the suit.

The city maintains that the Love Shack lacks the proper zoning for its location and is open illegally. The city claims that because the Love Shack is operating illegally, it can’t give the adult store a business license or a sign.

“It seems illogical to me that a business that’s not operating legally would have the right to advertise that illegal business with a sign,” Mayor Mike Bodker said.

Even though he remains open, Cornetta says he is entitled to a business license from the city. The city went to state court to force the Love Shack to close. The city hasn’t shut down the store because if Cornetta wins, he could sue Johns Creek for lost income.

Cornetta says the Love Shack legally opened under Fulton County regulations a year ago and the legal standing from the county carries over to the city. Fulton County says the Love Shack, in fact, didn’t conform to county rules and didn’t open legally. Cornetta and Fulton County are in court, too. The federal 11th Circuit Court of Appeals is set to hear the case Thursday.

“After Thursday, none of this is going to matter,” Cornetta said, predicting victory. “Everything will be moot.”

He vowed to come after the city for lost income because of the denial of a sign.

“It’ll be millions,” Cornetta said. “When I win this case, that store is going to be the No. 1 store in the country.”

 

Court Leaves Alabama Sex Toy Ban Intact

In a victory for tough anti-obscenity laws, the US Supreme Court has refused to hear a challenge to Alabama’s ban on the sale of “adult toys”.

The U.S. Supreme Court declined Monday to hear a challenge to Alabama’s ban on the sale of sex toys, ending a nine-year legal battle and sending a warning to store owners to clean off their shelves.

An adult-store owner had asked the justices to throw out the law as an unconstitutional intrusion into the privacy of the bedroom. But the Supreme Court declined to hear the appeal, leaving intact a lower court ruling that upheld the law.

Sherri Williams, owner of Pleasures stores in Huntsville and Decatur, said she was disappointed, but plans to sue again on First Amendment free speech grounds.

“My motto has been they are going to have to pry this vibrator from my cold, dead hand. I refuse to give up,” she said.

Alabama’s anti-obscenity law, enacted in 1998, bans the distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs for anything of pecuniary value.”

The law does not ban the possession of sex toys, and it doesn’t regulate other items, including condoms or virility drugs. Residents may legally purchase sex toys out of state for use in Alabama, or they may buy sexual devices in Alabama that have a “bona fide medical” purpose.

Similar laws have been upheld in Georgia, Mississippi, and Texas, but struck down in Louisiana, Kansas and Colorado, said Mark Lopez, a former American Civil Liberties Union attorney in New York who worked on the Alabama case until recently.

The Alabama attorney general’s office immediately notified county district attorneys, who are responsible for enforcement. The attorney general planned to ask a federal judge to lift an injunction preventing the law from being enforced.

Removing the injunction should take a couple of days, said Chris Bence, spokesman for Attorney General Troy King.

Store owners should be aware that the law takes effect once the injunction is lifted, Bence said.

Williams had asked the Supreme Court to review a decision by the 11th U.S. Circuit Court of Appeals that found Alabama’s law was not affected by a U.S. Supreme Court decision knocking down Texas’ sodomy law.

The Texas sodomy law involved private conduct, while the Alabama law regulated commercial activity, the appeals court judges said. Public morality was an insufficient government interest in the Texas case but was sufficient in the Alabama case, they said.

Williams called the Supreme Court’s decision not to review the law “further evidence of religion in politics.”

“The U.S. Supreme Court said states can legislate morality,” she said. “I don’t feel it is fair to the people who do not agree with the morality of the Legislature.”

She also predicted future court battles over which sexual devices are legal to sell as medical devices.

Lopez said adult stores may be cautious about pushing the issue of what constitutes a medical device because the law has strong penalties: Up to a year in jail and a $10,000 fine for a first offense. A second offense carries a prison sentence of one to 10 years.

 

 

 

City of Milton Acts to Block Adult Businesses

The AJC reports that the City of Milton, GA (our sister city in that we became cities on the same day) recently approved adult business restrictions:

In Milton, adult businesses can only locate in areas zoned for industrial and commercial businesses. And the city bars sexually oriented businesses within 500 feet of agricultural or residential property.

The City of Milton, better known for its horse farms and upscale subdivisions, believes that it has effectively shut the door on adult businesses without outright banning them:

Put together, the only places left are along Windward Parkway from Ga. 9 to Deerfield Parkway — where properties have deed restrictions banning adult businesses.

The area is part of a 520-acre mixed-use project developed by Hines Interests Limited Partnership, which imposed the deed restrictions in 1997. Also banned by the covenants are junk yards, jails, sewage treatment plants, and iron smelting factories.

Milton’s restrictions on adult businesses are not without its critics:

Alan Begner, an Atlanta attorney specializing in adult businesses, said he doesn’t believe Milton’s plan would stand up in court.

Not to be outdone on the topic of adult businesses, Mr. Cornetta of the Love Shack fame is quoted:

The owner of the Love Shack, John Cornetta, doesn’t exactly see rural Milton as a hot prospect.

“What makes these people think I would put an adult store in a farmhouse?” he said. “I’m not going to sell adult DVDs to chickens.”

 

US Appeals Court Upholds Daytona Zoning and Public Nudity Ordinances

Our friends over at NoPornNorthamption.com has put together an excellent article documenting the US Court of Appeals for the Eleventh Circuit’s recent Daytona Zoning decision. Please note that it is a long but worthy read. Several points to consider:

1. The Court upheld the City of Daytona’s use of secondary impacts as the basis for implementing zoning restrictions on adult businesses. This was done in spite of the fact that lawyers representing adult businesses argued that there has been no documented increase in crime around adult businesses according to the City’s own police records. The Court found that many of the type of crimes associated with adult businesses (public lewdness and prostitution) may not show up in police records.
2. The Court stated that there does not have to be any “available” sites for adult businesses as long as there are potential sites for adult businesses in a local jurisdiction. The Court was only concerned that zoning restrictions allowed adult businesses in a sufficient number of locations. The Court was not concerned if these sites were actually available to be occupied by an adult business. For example deed restrictions that prohibit adult businesses on a property that is zoned for adult businesses does not nullify the site from being considered as a potential site for First Amendment purposes. In addition all suitably zoned sites could be presently occupied and not available to buy or lease; again this fact does not does not nullify the site from being considered as a potential site for First Amendment purposes.

The second point is relevant to the Johns Creek Love Shack case. One of Mr. Cornetta’s arguments has been that there are no other ‘available” site for adult businesses in Johns Creek, even though adult businesses are allowed on industrially zoned land. This is because most (if not all) of the industrially zoned land in the City of Johns Creek is in the Johns Creek Tech Park. The Johns Creek Tech Park has restrictive deeds that prohibit adult uses. This fact makes it extremely difficult for an adult business to legitimately locate within the City of Johns Creek even if there are a sufficient number of sites zoned for adult businesses. Hence the battle over the current location (which is not zoned industrial).

The first point will become important if and when the City of Johns Creek zoning regulations related to adult businesses get challenged in court. Since the City of Johns Creek implemented time, place and manner restrictions on adult businesses based on data reasonably believed to be relevant to the City of Johns Creek, it will much harder for opposing lawyers to argue that the City of Johns Creeks restrictions are not based on solid evidence.

 

Porn Compared to Toxic Sludge

An article in the National Catholic Register takes aim at pornography and its impacts.  it asks the question that most people would rather not have to address:

When toxic sludge leeches into neighborhoods, we demand the polluter stop and clean up his mess. What about the sludge of pornography?

The article points out some of the impacts of pornography on our community:

 Pornography threatens marriage and the family by distorting the very meaning of sexuality. It threatens women by reducing them to objects of male pleasure, and blurring the lines between what is acceptable and what isn’t. It threatens young people by stoking appetites that are increasingly difficult to satisfy. It abuses freedom of speech, because this freedom that was meant to be at the service of public debate, is now being identified with unbridled obscenity.

And it leads to other crimes. In conjunction with Bishop Paul Loverde’s teaching efforts, the Alpha Omega Clinic in northern Virginia launched a website, Unity Restored, to help fight pornography in practical ways. The site points out the strong correlation between use of pornography and theft, violence and other anti-social behaviors because it encourages users in the habit of seeing other people as objects to be manipulated instead of persons to be loved.

The website further exposes the darkness of the pornography industry:

• A University of New Hampshire study released in February found that 2/3 of children exposed to pornography in the course of a year came across it accidentally during innocent Internet searches.

• “Stealth” pornography is particularly malicious because viewing graphic sexual imagery causes a biological and psychological response in viewers, whether or not they desire it — a response that makes resisting more difficult. Pornographers try to “hook” young people and other innocents to get new customers.

• Dr. C.J. Manning’s 2006 study on sexual compulsion showed that learning of a spouse’s porn use typically has the same impact on an innocent spouse as learning of an affair — and pornography is a significant factor leading to divorce.

• “Adult” images won’t enhance sexual intimacy (a common justification); research consistently shows that pornography use decreases the desire and ability to have relations with a partner.

America is a democracy. In the end, the fight against pornography will only be as strong as we are willing to make it. For information on fighting pornography and helping enforce America’s obscenity laws, see the website of Morality in Media (MoralityinMedia.org)