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Friday, December 8, 2023 | Back issues
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Georgia City Can’t Ban Shop Selling Sex Toys

ATLANTA (CN) - A Georgia city cannot ban a novelty shop from selling sex toys on claims that it violates laws regulating sexually-oriented businesses, a federal judge ruled.

Based in Brookhaven, Ga., Stardust opened in February 2013, soon after the city was incorporated in DeKalb County, northeast of Atlanta. The store was licensed as a smoke shop that sold tobacco, pipes and novelty items, but soon thereafter started selling sexual devices that did not fall within its city-approved activities.

Brookhaven cited the store hundreds of times, claiming it was in violation of city ordinances that regulate "sexual device shops." Moreover, the city claimed, Stardust violated the city code by sharing a property line with a strip club and by operating a sex shop less than 300 feet from a residential area.

The Pink Pony, Stardust's neighboring strip club, unsuccessfully challenged Brookhaven's restrictions on adult-entertainment businesses as unconstitutional.

Despite the city's warnings, Stardust continued to sell sexual devices without a license to do so, from the same location, according to the Jan. 13 federal ruling.

The city denied Stardust's application for a sign to be placed in front of the store, citing the store's lack of license and prohibited location. After Brookhaven rejected its appeal, Stardust sued the city in DeKalb County Superior Court, challenging the constitutionality of its ordinances. Stardust also filed a federal complaint over the denial of the sign permit, alleging First Amendment violations.

Brookhaven countered that the business had violated its sexually-oriented business code and asked the court to enjoin the store from selling sexual items.

U.S. District Judge Eleanor Ross ruled last week that Stardust could continue to sell sexual devices without being labeled a sex shop.

Selling sexual items does not automatically turn a business into a sex shop under city laws, the 13-page opinion states.

Although stores that regularly feature sexual devices are subject to regulation as sex shops in Brookhaven, the city did not try to stop Stardust from "featuring" such items, but instead asked the court to ban their sale altogether, according to the ruling.

Brookhaven's statute does not ban the sale of sexual devices, but merely seeks to regulate the manner in which they are displayed in stores, Ross noted.

Additionally, an order barring Stardust from operating a sexually-oriented business at its current location would be too broad, especially since the city failed to explain how the business could change its operations to comply with the city code, the court found.

In fighting Stardust's First Amendment claim, the city had argued that its laws did not restrict commercial speech because they merely regulated the sale of sexual devices and not their advertisement.

The court found, however, that Brookhaven was not likely to succeed on its claim, should its code be deemed to regulate commercial speech as alleged by Stardust.

"In its haste to assert that this case has no First Amendment implications, the city has failed to show how its ordinance does not affect the in-store display of merchandise, and it has not addressed the standards for protection of commercial speech," Ross wrote in the opinion.

But the judge refused to venture into what she called an "unexplored area of First Amendment doctrine," noting that the court could not decide at this stage whether the city code violates free speech or whether those protections extend to a retail store's display of its merchandise.

"We're before a judge who's going to make each party prove its case," Stardust attorney Cary Wiggins told the Daily Report. "We are excited about that."

Wiggins said the city's ordinances violate the First Amendment by restricting how one can advertise a sexual device.

"I wish cities would seek input from the businesses that they are attempting to regulate, instead of just trying to cripple them," he added. "It would save an enormous amount of time and money."

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