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Atlanta Adult Shop Fights to Stay Open in 11th Circuit

An attorney for an adult entertainment megastore in Atlanta asked an 11th Circuit panel Wednesday to overturn a federal judge’s ruling barring the store from operating based on a zoning dispute.

ATLANTA (CN) — An attorney for an adult entertainment megastore in Atlanta asked an 11th Circuit panel Wednesday to overturn a federal judge’s ruling barring the store from operating based on a zoning dispute.

Clouds and wind move through the Atlanta area, Monday, March 19, 2018. More than 29 million people, including millions in Atlanta, face a threat of severe storms that could bring large, damaging winds and strong tornadoes to the southeastern United States, forecasters said. (AP Photo/Alex Sanz)

Cheshire Bridge Holdings LLC and Cheshire Visuals LLC, which collectively own and operate the three-story Tokyo Valentino store, sued Atlanta in November 2016, alleging the city's zoning ordinances violate their First Amendment rights.

But the legal battle between the businesses and the city goes all the way back to Dec. 2, 1996, when Cheshire Visuals first applied for a business license to operate Tokyo Valentino.

According to Cheshire’s amended complaint, the city changed a zoning ordinance later that same day to prohibit adult businesses from operating in certain districts, including where Tokyo Valentino is located.

The city denied the license application based on the amended ordinance, prompting Cheshire Bridge Holdings and Cheshire Visuals to file their first lawsuit against the city.

The Fulton County Superior Court found in favor of the businesses in September 1997, ruling that the license application should have been considered under the zoning ordinance which was in place when the application was filed, rather than under the amended ordinance.

After the initial lawsuit was decided and the city approved Cheshire’s application for a general retail store that included adult video sales, novelties and toys, the businesses opened the Tokyo Valentino store and installed video booths in the basement which displayed "sexually erotic media."

Cheshire Bridge Holdings and Cheshire Visuals allege that the videos shown in the booths are "non-obscene, constitutionally-protected erotic speech."

All was well until 2014, when city inspectors visited the store to follow up on neighborhood feedback in response to Cheshire’s application for building permits to renovate the property. 

Upon discovering that the store was operating video booths showing sexually explicit movies and had open and private "play rooms" in its basement, inspectors informed Cheshire Bridge Holdings that it could not continue to operate the basement business.

In its 2016 complaint against the city, Cheshire alleges the city's definitions of adult businesses "are unconstitutionally overbroad" and claimed that the ordinances "defining and regulating adult entertainment confer unbridled discretion to the administrative officials to punish or stifle speech."

But a federal judge in Atlanta didn’t buy the argument and sided with the city.

In his January 2018 ruling, Chief U.S. District Judge Thomas Thrash ruled that both Cheshire entities lacked standing to challenge the city's definitions of adult entertainment establishments.

Thrash also found Atlanta’s zoning ordinances are not unconstitutional because the city was able to show that the "primary purpose of the ordinances was to combat the secondary effects of adult businesses."

The judge issued an injunction permanently barring Cheshire from operating an adult bookstore, adult entertainment establishment or adult mini theater at its current location.

On Wednesday, Benjamin Aaronson attorney Daniel Aaronson, arguing on behalf of Cheshire, asked a three-judge 11th Circuit panel to throw out the injunction and overturn the district court's ruling.

Aaronson told the panel that the store's operations constitute a legal nonconforming use of the property.

According to the district court's ruling, under state law, nonconforming uses “come into being initially as legal uses, and become nonconforming because of a subsequent change in zoning.”

Senior U.S. Circuit Judge Richard Tallman, sitting by designation from the Ninth Circuit, immediately called Aaronson's argument into question, asking whether the ability to show explicit videos inside the basement video booths was granted by the business license under the old version of the ordinance.

"Were they out of conformance when they started showing the videos?" Tallman asked.

"Yes and no," Aaronson replied, telling the panel that although the store should have been ordered to close the mini theater, it was "still a legal nonconforming use to sell adult novelties and videos."

But attorney Scott Bergthold, arguing on behalf of the city, quickly dismissed Aaronson's arguments as lacking in "any merit whatsoever."

"They operated an illegal business from the beginning, therefore they can't argue lawful nonconforming use," Bergthold said.

He added, "They opened in February 1998 and always did illegal things... They did not commence lawfully – it was unlawful from the beginning. [They] never established a lawful nonconforming use from the day they commenced using the property.”

Tallman was joined on the panel by U.S. Circuit Judges Charles Wilson and Jill Pryor.

The panel did not indicate when it will issue a decision in the case.

Follow @KaylaGoggin_CNS
Categories / Appeals, Business

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