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2007-04-19  TOP STORIES | Love Shack denied…again
Despite ruling, sex shop stays open
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| | by Caron Cooper | |  |
May 01, 2007
The city's appointed hearing officer denied the Love Shack's appeal Monday for a regular business license, stating Johns Creek was "more than justified" in turning down the adult video store under its code.
But Cary Wiggins, attorney for John Cornetta and his Love Shack, said the fight is probably not over.
"We will probably not rest on that decision. We are still reviewing the order, and we have made no determinations or decisions yet," said Wiggins.
Meanwhile, the shop stays open. City officials say the decision is another step in the process.
The hearing officer's decision reaffirms what the city already knew, which is that the Love Shack is an adult business, said Mayor Mike Bodker.
"And as such, it is not properly located where it is operating," the mayor said.
This is not a moral issue, according to Bodker, it is a zoning issue.
The city maintains that Love Shack has a few options: it can ask to be rezoned and apply for a sexually oriented business (SOB) license, it can relocate or it can shut its doors.
City Attorney Bill Riley said now that a decision has been made, it brings some urgency to their next move.
"I think the ball is in their court. We have the ruling, and they now have to pick where they want to go," said Riley.
Riley said Cornetta's attorneys could appeal and would have the right to choose the venue.
The city's appointed hearing officer, Gregory Jay, rendered the decision based on testimony and evidence presented during the April 2 business license appeal hearing.
Jay's eight-page order outlines the findings of fact and his conclusions of law to support his decision. It states the city must only show the Love Shack meets at least one criterion of a sexually oriented business (SOB) to be regulated by the SOB ordinance.
Under the SOB ordinance adopted Dec. 4, the order concludes it meets three of the definition criteria:
** The Love Shack offers at least 1,000 items displaying sexual activity or anatomical parts for sale or rental and limits access to adults. Code Enforcement Officer Reggie Miller testified to an estimate of more than 24,000 of these types of items on display during his March 2 visit. An affidavit from Love Shack comptroller Jack Frielander hand-counted 2,312 adult DVDs.
** The Love Shack devotes at least 25 percent of its interior space, or 500 square feet, to the rental or sale of adult media. The hearing officer admits there is a factual dispute over the size of the store, but finds the store contains over 500 square feet based on testimony.
"While the city does have the burden of proving the respective amount of floor space and inventory, it is worth noting that the Love Shack did not elect to call any witnesses concerning such matters," said Jay in the order.
** The Love Shack is a "sexual device shop" under the definition, because it offers sexual devices for sale. The Love Shack's own inventory lists multiple objects designed for stimulation. The order reads that the hearing officer is not persuaded by the fact that Love Shack places a sticker on each item stating "For Novelty Purposes Only."
The hearing officer dismissed the Love Shack's argument that the city's Dec. 20 business license ordinance does not allow a business license to be denied just because it does not expressly mention denial, but rather suspension or revocation. The officer did not agree that the city was "required" to issue the license.
"Taken to the extreme, Love Shack's theory would yield the illogical result of the city being forced to issue a license only to revoke it a day, hour or minute later," reads the order.
The order also cites the Love Shack is an SOB according to the city's zoning ordinance. It assumes the Love Shack is not a grandfathered non-conforming use, contradicting the code as an unauthorized use in the commercial-zoned area. The order also finds the Love Shack to be operating too close to residential areas.
The ongoing litigation between the Love Shack and Fulton County parallels the city's efforts to close Cornetta. Wiggins filed a brief this week to the 11th Circuit Court of Appeals. The brief requests that oral argument be heard, because it is believed that it "will offer a more complete context within which to analyze this case."
Fulton County is expected to file a response brief. Analyzing the briefs could take weeks, and if oral argument is heard, it could be six months to a year before a decision in the county case is made.
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Reader Comments
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July 17, 2008 | 06:50 AM
diatribes leavening initializes howled Quezon recreation goblin:guardianship?Tantalus:
Time to spend city money on the real needs.
May 04, 2007 | 07:24 AM
Like traffic fixes and road fixes. Quit wasting money on the Love Shack issue.
Worst Kind Sorry
May 04, 2007 | 05:31 AM
That was worst kind not worst king sorry.
Taxpayers Should Fire Mayor And Council
May 04, 2007 | 05:30 AM
The taxpayers should fire the Mayor and Council for wasting their tax dollars trying to censor protected speech and expression in this overly restrictive zoning sham of a scheme. The Love Shack benefits Johns Creek immensely and pays taxes and employs good people who also pay taxes and shop here. Time to drop the lawsuit and stop listening to Scott who is a so-called recovering porn addict who now wants the Nanny State to censor what he used to enjoy. These recovering addicts are the worst king ie...they want to use force to deny others the right to enjoy what they once did.
Lawyer has a hidden agenda
May 03, 2007 | 09:57 PM
Scott has a way of convincing way of selling a mayor and city council on "his way" of developing an ordinance. I won't argue whether he has pure intentions but he sure has a way of making money on winning or losing.
Now that our city council and mayor have proven they can't lead, maybe its time for a recall. Running a city isn't the same as running a business. In fact, if they thought of the city as their own business we would probably be in better shape. I bet the "love shack" would not get turned away as a potential client of an accounting firm or software company.
Maybe it is time the citizens decide on whether to continue with this money pit. Put this on the ballot:
Do you wish to stop the lawsuit against the "Love Shack" and instead sue "Scott Bergthold" for overcharging?
Do you wish the mayor and council to back off the lawsuit or resign?
Throw In The Towel Scott
May 03, 2007 | 09:31 PM
Scott needs to throw in the towel! Fascism is not a Family Value. Johns Creek should pay Mr Cornetta damages for the hassle he has gone thru to protect our American Values of Freedom Of Speech,Capitalism,and Private Property Rights.
BREAKING NEWS oh I love this
May 03, 2007 | 05:44 PM
May 1, 2007
Sorry, but your invincible hero appears to have lost.
www.siouxcityjournal.com/articles/2007/05/02/news/top/ 2cab5dcf220eec41862572cf000b8d3d.txt
City reaches $220,000 settlement with Doctor John's
But the check was no lottery jackpot. Under a city of Sioux City logo was the figure $220,000, the amount the city paid to settle its long-running legal battle with Haltom, owner of Doctor John's Lingerie Boutique.
"The cost of this litigation has to stop. It's in the best interests of the taxpayers to settle," councilman Dave Ferris said. "Sometimes you've just got to bite the bullet. I do agree we have a very strong case, but it could drag on for years."
Mayor pro tem Jason Geary cast the dissenting vote, saying the settlement leaves the city unable to protect its citizens from secondary effects of adult stores.
"I think this casts a shadow over the enforceability of our ordinances," he said. "I feel there are some things worth fighting for and this is one of them. We're growing, and I fear there could be more of this."
One of the city's attorneys, Scott Bergthold, a Chattanooga, Tenn., lawyer who has helped cities draft ordinances regulating adult entertainment businesses, said the case has been twice as costly as similar ones he's litigated and would only continue to cost more.
"As a matter of economics, it would be a wise settlement," Bergthold told the council.
Yes and when will Scott tell Johns Creek this? After you, all of its tax payers have given him another few hundred thousand?
John Cornetta
Zibtluda lost? I think not
May 03, 2007 | 05:28 PM
"Zibtluda (Cornetta) lost to Gwinnett County at the 11th Circuit, when Cornetta tried to get Gwinnett's Adult Ordinance struck down."
You wrote the above, again it goes to show your arrogance and total lack of knowledge. I beat Gwinnett County every step of the way. I beat them at the 11th Circuit. I only went back up to the 11th Circuit on the damages portion of my claim, to get the money back I wasted beating them. That the circuit denied , so get your facts straight. Oh and by the way, the circuit judge in the ruling not to give me damages ( however I won every thing else ) was, you guessed it Judge Pryor the Alabama Attorney General who was snuck on to the bench by Bush. His opinion on why Zibtluda should not get damages was released one hour, I repeat one hour after final Senate confirmation avoiding a showdown with democrats and a Filibuster. That was Pryor's first decision. So go back to law school buddy.
John Cornetta
Love Shack
May 03, 2007 | 12:48 PM
Well it is now completely obvious that you are one of four possible choices. You are either Scott (doubtful, though zealous, your legal arguments are weak and his would be much stronger), the Mayor (actually I do not think you are he either, as you appear to be somewhat more informed and slightly more educated, a lawyer who works for Johns Creek and or a city official (very possible given the limited, yet layman like knowledge of the law, just enough for a city attorney or worker who attended just the right amount of meetings) and or an informed, webmaster who runs a certain site about adult entertainment who is (a zealot, yet educated, passionate, ill informed, miss guided and buys every word that spews out of the mouth of the mayor and Scott) My guess is the last as you meet most of the criteria yet base all of your "legal" findings on hogwash. It matters not as subpoenas are and have been prepared for the electronic information of this site and the one you host with Godaddy... :-)
Scott Bergthold has written an ordinance that was upheld in Georgia you wrote. Where? If you speak of Rome, that was a Federal Case which is on appeal. Again, the undisputable Fulton County Study must be overcame first, in order to show any reason why anyone should regulate these businesses and in the long haul, that will not be done. I can not believe I am wasting my valuable time doing this when there are so many women naked all over the city on poles, but I will press on. I never mention my hypocritical friend, that the case was about obscenity, I merely pointed out that 16-12-80 was overturned, my lawyeer did it and I do not think the Georgia Legislators have the stomach to write a new one. If they had, the one the wrote last session would have passed.
As far as sex toys are concerned, the State of Georgia may very well become distinguished by becoming the last state to ban them. I am completely at a loss as to why anyone would want to ban a device that would stimulate joy. Anyway, I however do not sell them at the Johns Creek store yet. And if you or anyone else thinks that they are sexual devices, then you need to go to every Target and Wal-Mart and pull them out of there too because selective prosecution is a mother, when dealing with a wealthy, intelligent, passionate citizen who will not be pawed at. Again, you can not deny a business license for having what you perceive to be a sex toy, you revoke for that, please go back and review your law book webmaster.
Yes you say this is a zoning case, I say not. If it was, why do you suppose that in not one of Judge Thrashes orders did he ever mention zoning, or licensing as an issue? Hmmmmm, could it be? I think yes. The fact is that business was operating legally before your little city became a city. Furthermore, when I really start to sink my very sharp teeth in to your hero's ordinance, you will find he has a huge Renton challenge to overcome. Especially since just 5 weeks ago 95% of all of the available M1 and M2 available land areas in Johns Creek became suddenly unavailable. You don't know why? Try and keep up.
Then you raise the fact that the 11th Circuit upheld Alabama's toy law. Well I'll be. Was that heard embank? On no I didn't think so. And the 11th Circuit, that the circuit we are in here in Georgia isn't that correct sir? And that would be the same circuit that has the only sitting judge never to be confirmed by the United States Congress, one Jude Pryor, now isn't that right? The same Judge who before being given a life long term to the bench during a congressional break by the President Bush (The first and only time in US history) the same Mr. Pryor who was attorney General for, hmmm let me think, yep Alabama. Makes you wonder doesn't it. So as it appears you know just enough about the law to make you dangerous or a public defender, why then would you remind me a case for the 5th district when any educated man would know that that is merely secondary persuasion? Lets take in to count Tukwila Washington where is was absolutely shown that there was no secondary effects. I mean that's the 9th District. Or even better, lets use the most current case law possible since we are just jumping around circuits here and use the 2nd Circuit. Why not since less then to weeks ago they issued this land mark decision which alone will make Mr. Bergthold and his cronies cringe. Story below. More importantly is I have 20 or 30 arguments to be made and will win on most if not all.
More and more adult businesses are now commissioning studies, performed by experts such as Bruce McLaughlin, to show that adult businesses do not cause a greater incidence of crime than non-adult businesses. I am one of those owners. Sleep well and know that I will be right around the corner, selling anything protected by the greatest document of all time.
Read the ruling and weep. Good night sir, go have a cookie and milk as it appears you get no nookie. lol
John Cornetta
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Ruling confirms secondary effects can't be afterthought
By David L. Hudson Jr.
First Amendment scholar
04.10.07
For many years, city officials across the United States have cited the mantra of "secondary effects" to justify myriad restrictions on adult entertainment. The secondary-effects doctrine enables government officials to impose regulations and restrictions on the expressive content associated with adult businesses - such as nude performance dancing - by claiming they are concerned about harmful secondary effects associated with the businesses. Such harmful effects include decreased property values and increased crime. This doctrine enables reviewing courts to view laws that seemingly single out the unsavory expression at adult businesses as content-neutral laws rather than what they often are - laws that restrict expression officials find distasteful and offensive.
The 2nd U.S. Circuit Court of Appeals' recent decision in White River Amusement Pub, Inc. v. Town of Hartford shows that there are some limits to the use of the powerful secondary-effects doctrine. In September 2001, White River Amusement opened up an adult-entertainment business featuring nude and semi-nude dancing in Hartford, Vt. The five-member Town Selectboard then quickly passed a public indecency ordinance in the spring of 2002 to prohibit nude dancing. The town's attorney advised the selectmen to adopt a resolution about secondary effects when adopting the proposed ordinance. The leaders did not adopt a resolution of secondary effects and did not conduct any independent analysis of actual or potential secondary effects of public nudity. The selectmen apparently did not review or discuss secondary-effects studies performed in other cities. Only later - after the passage of the ordinance - did the town's planning department analyze secondary-effect studies from other locales.
The adult business sued the town in federal court, alleging that the ordinance violated the First Amendment. It prevailed before a federal district court which noted that the town failed to show that "it relied upon at least some evidence reasonably believed to be relevant to its interest in preventing negative secondary effects."
The 2nd Circuit affirmed the lower court, took the town leaders to task for failing to consider evidence of secondary effects before passing their ordinance. Town leaders argued that they could rely on any evidence of consideration of secondary effects - either before or after the passage of their ordinance. The 2nd Circuit found this insufficient, finding that Renton requires pre-enactment evidence." The appeals court noted: "While a municipality may rely on the studies conduced by other towns, it may not simply rely on its knowledge that such studies exist."
John Cornetta
May 03, 2007 | 12:16 PM
If the citizens of John's Creek are so terribly concerned about morality and protecting the children, every single person that opposes the Love Shack should throw out their home computers. The Love Shack looks like Chuck-E-Cheeses when you consder what your husbands and children can find on the internet.
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