Love Shack’s Challenge Rejected in Appellate Court

 The latest according to the AJC:

The federal 11th Circuit Court of Appeals rejected a challenge of a lower court ruling by the owner of the Love Shack, an adult-themed store in Johns Creek.

The decision resolved a narrow question of the larger case, which sits before Federal District Judge Thomas Thrash. No date has been set to hear the main case, which focuses on whether Fulton County improperly denied the Love Shack a business license. The Love Shack opened in November 2006, days before the community of Johns Creek became a legal city. Because it was still in what was then unincorporated Fulton County, the Love Shack sued the county in federal court to make the government give it a business license. The county counter-sued to obtain a federal order to close down the store.

Last December, Thrash ruled the Love Shack is an adult store operating without proper permits, but then said it could operate if it significantly reduced the amount of adult material. But he put a three-week time limit on the order.

The owner of the Love Shack, John Cornetta, appealed to reverse Thrash’s decision, saying the judge’s ruling was too vague, and Fulton County should have pursued remedies in state courts first.

In a two-paragraph ruling on Dec. 17, the appellate court dismissed Cornetta’s appeal out of hand, and said it was all moot anyway because Thrash’s order to close the store expired Jan. 5.

In the meantime, while the appeal is pending, the store remains open.

 

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.

 

 

 

Reader Comments on the Dangers of Alcohol – Part II

We have gotten more emails regarding the alcohol issues. The email is from a person seemed to agree with me:

Rather catty comment. I’d advise them to ask their community representative or church about helping to educate the community about alcohol. Think proactive not reactive.

The second email was from the original reader, who responded to my response:

Sorry. I misunderstood. I thought this was a site protesting an Adult Store, but this is a site protesting John Cornetta. What I should have said was: The amount of time spent worrying about this subject could be better spent helping those in real physical dangers.

Here is my response to them:

This website is about protesting an Adult Store that is located in a location that is not zoned for adult businesses.

You were the one to bring up the dangers of alcohol. If you have problem with the number of places you can get alcohol in Johns Creek than you can protest that.

We are free to pick which issues to be vocal on. I choose to be vocal against the Love Shack. This does not mean I think that alcohol is without its problems, but this is not an issue I choose to be vocal about at this time.

The fact is that you are making these claims about the dangers of alcohol to put down my protests of the Love Shack. My point is that the same person who owns the Love Shack also wants to sell alcohol, which you find very dangerous.

Another interesting thing is that Mr. Cornetta would not open his restaurant until he had his alcohol permit.

 

Reader Comments on the Dangers of Alcohol

Every few weeks or so I get a comment similar in thought to the following comment:

Facts are always irrelevant when one is attempting to force their personal agenda on others, but here they are:
1. How many liquor stores are in Johns Creek?
2. How many drunk drivers are there in Johns Creek?
3. How many violent crimes due to alcohol are in Johns Creek?
4. How many families suffer due to alcohol in Johns Creek?
Is that okay? Do we turn a blind eye to real problems that cause harm and death? It is legal to buy alcohol, it is legal to buy guns, and it is legal to enjoy yourself sexually.
I can see your point as to how dangerous sex can be.

Since I seem to get this comment a lot I wanted our readers to see my response:

Thank you for you comment. In light of the dangers of alcohol, I am sure you can get your buddy Mr. Cornetta to not serve alcohol at his new restaurant in Johns Creek.

In fact maybe all adult businesses can do the responsible thing and stop serving alcohol due to the dangers.

Fat chance!!!

It always amazes me that people try to tell us what we can and cannot be against.  If these people really believed in the dangers of alcohol they could start their own blog highlighting the dangers of alcohol.  Instead they make straw man arguments to say that I should not be against porn in our neighborhood because of other “wrongs” in our society.  Remember what your mother taught you when you were little – “two wrongs do not make a right”.

 

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.

 

City of Johns Creek Goes to Court, Part II

According to this article, the City of Johns Creek has gone on the offensive against the Love Shack. The City is trying to get the Superior Court to make the Love Shack comply with Johns Creek ordiances or close down.

“This is a city that is going to enforce its ordinances. It gave due process, and it gave [Love Shack] opportunities to correct the violations,” said Scott Bergthold, an attorney hired by the city. Bergthold is considered a legal expert on sexually-oriented businesses (SOB).

The petition states that Love Shack is an SOB, and therefore, it is in violation of the city’s SOB ordinance on six counts:

• Count 1: Operation without a sexually oriented business license

• Count 2: Operation in unlawful location – proximity to residential parcel

• Count 3: Operation in unlawful location – proximity to alcohol establishment

• Count 4: Operation in unlawful location – improper zoning district

• Count 5: Operation without occupation tax certificate/business license

• Count 6: Public nuisance (Love Shacks continuing violations of the city’s ordinances are contrary to public health, safety and welfare)

Mr. Cornetta, the owner of the Love Shack, says that he is not concerned:

Cornetta said the petition is ‘no big deal,’ citing his more than 15 years of traveling down this road. This is just another day, he said.

“This is what I do for a living. I chew up and spit out local municipalities like Popeye chewed spinach,” said Cornetta.

 

Up To Us To Send Sex Shops Packing

In a wonderful opinion piece in the AJC, Jim Osterman chimes in on the recent Love Shack ruling in Johns Creek.  Osterman is a resident of Sandy Springs and has this to say:

Last week our new-city neighbor to the north, Johns Creek, won a round in its ongoing battle to deny the Love Shack a business license. Down here we have our own versions of the Shack, and I know a lot of you wish they’d go away. Count me in.

Such places put nothing of worth into a community. They add nothing of substance to a community. Indeed, they erode community in the truest sense of the word.

 Jim Osterman hits the nail on the head.  He challenges us, the community at large to look past the government and at ourselves for the solution: 

Forget the mayor and city council. Forget some super-lawyer crafting a law that drops the hammer on the adult business. Are we capable of channeling our moral indignation into starving these places to death? Exercise some control and strive to improve our minds and spirits? Do the same for our children?

Do we, as a community, have that in us?

I have never heard of one single benefit to having such businesses in a community. Not one. What I usually hear is the “victimless crime” cliche, as though there can be a crime and not a victim.

The true solution to ridding any community of its porn palaces does not lie with elected officials. It’s not a government solution —- it’s a you-and-me solution.

Dry up the demand and the supply will starve. Government can’t legislate morality. That, kids, is an inside job. Do not ask anyone to do for you what you are not willing to do for yourself.

 

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) 

 

Opening Battle in Love Shack – Johns Creek War (continued)

The latest Love Shack article in the Johns Creek Hearld gives us more details of the 4 hour business license hearing. The following is summary of the City of Johns Creek’s reasoning for denying the Love Shack’s request for a “regular” business license:

• More than 25 percent of the floor space is dedicated to adult items.

• More than 500 square feet of the floor space is dedicated to adult items.

• The adult items are offered in quantities more than 1,000.

• The store limits access to adults only.

• The Love Shack regularly advertises or holds itself out as adult, XXX, sex, erotic or other similar language.

The city called five witnesses including an undercover private investigator to support their position. Scott Bergthold, the attorney representing the city also argued:

Bergthold said the store is operating illegally due to its location within 1,000 feet of a school or residence. He also dismissed the “for novelty use only” stickers that are meant to portray sex toys as mere gag gifts. They are what they appear to be, Bergthold said.

Cary Wiggins represented Love Shack owner, Mr. Cornetta is quoted:

Cornetta’s attorney Cary Wiggins said all of this is moot, because the updated super-ordinance was not in place when the business application was submitted.

“My client is entitled to be considered under the ordinance that was in place at that time,” said Wiggins, referencing the ordinance that was adopted on Dec. 20, which included no contemplation for denial of a business license.

The Dec. 20 ordinance was still in place at the time the Love Shack’s business license was submitted on Jan. 23.

Wiggins pointed out the city was a month away from adopting the new ordinance, citing a Georgia case that said the business is entitled to be considered under the ordinance that was in place at the time of the application.

“When they did amend the code on Feb. 26, low and behold, there is provision in there. All three counts we are here for today were not in the old code. They are only in the new code,” said Wiggins.

Wiggins maintained that the city sat on the Love Shack’s business license application without explanation for a solid month while they adopted the new ordinance, and two weeks later the city then denied the application.

“You cannot apply that code to my client when he applied well before, a month before. The reason we are here today is based on three provisions, C6, C7 and C9, that are in the new code and were not in the old code. The denial itself is a creature of the new code,” said Wiggins.

Wiggins also believes that the part of the definition specific to language used in advertising is likely in violation of the First Amendment.

“That provision is not worth the ink or paper it was written on,” said Wiggins.

Wiggins also added the Fulton County case is still pending in an appellate court.

Both sides agreed to wave the usual five day period for a decision:

Typically, the hearing officer would have five days to render the written decision, however both sides waived that requirement due to the amount of material and the length of the hearing.

Instead, council must submit “proposed findings of fact and conclusions of law” by April 16, and Jay must render a written decision by April 20.

The interesting point of Mr. Wiggins argument is that even under any earlier version of the City of Johns Creek’s ordinance, the Love Shack would be classified as an adult business, so what is the point to his argument?