2007-06-14 TOP STORIES
Johns Creek takes another crack at Shack City files petition with Superior Court, Cornetta said he is not worried
by Caron Cooper	write the author
(CARON COOPER/Herald) Fulton County Code Enforcement Officer Wayne Wright, center, and Acting Deputy Director of Environment and Community Development Randy Beck, right, talk with John Cornetta Dec. 21 after taking measurements of product areas. Johns Creek’s zoning ordinance took effect Jan. 5, but Cornetta and his Love Shack have not received a Notice of Violation from the city to date. (click for larger version) June 27, 2007 | 11:19 AM Editor's note: this is an in-depth version of the article originally published in the Johns Creek Herald. Johns Creek filed a petition last week in the Superior Court of Fulton County to declare Love Shack in violation of city ordinances and order it to comply or close. "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) Bergthold said Love Shack has been told numerous times that it is violating the city's SOB ordinance, which has multiple triggers that classify a business as an SOB, including proportion of sales revenue and proportion of displayed merchandise. 'For Love Shack, it appears that the city has silently plotted to shut down the store, declining to point out its belief that the floor space was too limited or that the device/movie displays were too numerous. It's been hide-the-ball.' Cary Wiggins attorney for Cornetta "None of that has brought them into compliance, so we are asking the court to order them to comply," he said. But Love Shack owner John Cornetta believes the city is digging itself a hole. "They are asking the judge to make the Love Shack comply by either closing, rezoning or moving, and those aren't the only options. You won't hear anyone on the other side say what the fourth option is, because they have painted themselves into a corner, and I am going to throw the paint bucket right back in their face," said Cornetta. Cornetta said the fourth option is to comply so as not to be considered an SOB under the city's ordinance. "That fourth option is always open, and [the city has] refused to work with us to tell us what is the acceptable amount. Why? Because they don't want it there," he said. Cary Wiggins, attorney for Cornetta, said he is reviewing the complaint but maintains that the Love Shack has tried to comply. To date, the Johns Creek Code Enforcement Department has issued 531 Notices of Violation to businesses and residences in Johns Creek that have not been in compliance with the city's ordinances. And yet, the Love Shack has not been issued a code violation to date, according to Reggie Miller, chief code enforcement officer for the city. Further, Johns Creek businesses that were not in compliance were instructed on how to cure the violation, said Wiggins. "As you know, some threshold amount of adult merchandise must be stocked or sold to trigger the sexually oriented business ordinance's application. Love Shack has tried to stay below that threshold. The city disagrees, yet it refuses to explain where the boundaries are," said Wiggins. Cornetta even claims that he asked Miller how he could bring Love Shack into compliance, to which he claims Miller responded with an "I don't know." "If Mr. Miller can't explain it, and no one on the [City Council] seems to be able to explain it – then no, I am sorry, [the store] will never, ever go away. I will call it the Love Shack, and I will go down to one massager, one DVD and one adult magazine if that's what the judge says it is," said Cornetta. And that's not the only way the Cornetta camp said it has been treated unfairly. City staff recently estimated somewhere between 800 to 1,000 businesses in Johns Creek do not have a business license – a "violation" for which the city is using to shut down Love Shack, said Wiggins. "For Love Shack, it appears that the city has silently plotted to shut down the store, declining to point out its belief that the floor space was too limited or that the device/movie displays were too numerous. It's been hide-the-ball," said Wiggins. 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. Cornetta believes the petition is a dangerous move for the city because of the ongoing case against Fulton County in the 11th Circuit Court of Appeals. "We could just win at the Superior Court level, and then it wouldn't even matter what the 11th Circuit said," he said. But Bergthold said he is confident in the city's position. "I don't think it is a particularly risky route at all. Regardless of what happens with the federal court, our lawsuit against Love Shack is going to proceed, and I don't think that the Fulton County case in its ultimate resolution impacts whether Johns Creek has a right to enforce its ordinances," said Bergthold. He pointed out that even if Love Shack was grandfathered because it existed before Johns Creek was a city, there is a provision in the Johns Creek ordinance that requires them to relocate after a year, unless they obtain a hardship extension from the city. Bergthold doesn't think the Love Shack is grandfathered, nor will it be successful in getting the court to say that. Though Johns Creek is not a part of the Love Shack versus Fulton County case, it did file a brief last week in support of Fulton County's position, according to Bergthold. "The city has been patient and has allowed the [Love Shack] to exhaust their administrative remedies. We want to get this thing in front of the judge, and we want resolution promptly. We are not going to sit on it for three years," said Bergthold. Cornetta has 30 days to respond to the petition. For now, the Love Shack is still open for business.

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