We are pleased to see another anti-porn blog initiated by citizens, this time the residents of Johns Creek, Georgia. Johns Creek is a newly incorporated city near Atlanta. At issue is a retail store called the “Love Shack”. Johns Creek has enacted ordinances regulating Sexually Oriented Businesses (SOBs), but Love Shack owner John Cornetta says his store now has too small a proportion of adult material to fall under the ordinance.
The blog, Keep Johns Creek Safe, reports,
The store is located directly across the street from a private dance academy catering to hundreds of young girls and less than 600 yards from a residential neighborhood…
U.S District Judge Thomas Thrash rejected claims by John Cornetta, owner of the Love Shack, that the 10,000-square-foot adult-themed store complied with Fulton County’s rules and should be treated as a regular retail store.
“It appears clear to me that the plaintiff is operating an adult business and it is operating illegally,” Thrash said. He said Cornetta had failed to obtain proper permits and to meet zoning requirements from Fulton County.
But then Thrash warned Cornetta that if he stayed open with a “significant” amount of adult material, then Cornetta was in danger of being in contempt of court. Thrash refused to define what he meant by significant when asked by Cornetta’s attorney, Louis Sirkin of Cincinnati…
[Cornetta] said his inventory was [now] less than 5 percent adult material, compared with the original 17 percent.
We will continue to monitor this developing story.
The Johns Creek SOB ordinance ( PDF, 5.9 MB ) was adopted this month. In many aspects it appears to be the ‘state of the art’ in adult-use regulations. It cites the latest relevant court cases and many recent secondary effects studies, and addresses some of the dodges adult businesses have used to try to get around ordinances elsewhere (see “Spanish Popeye”).
Here are excerpts from the ordinance:
[T]here is documented evidence of sexually oriented businesses, including adult bookstores and adult video stores, manipulating their inventory and/or business practices to avoid regulation while retaining their essentially “adult” nature. See, e.g., City of New York v. Hommes. 94 N.Y.2d 267; 724 N.E.2d 368 (N.Y. 1999); For the People Theatres of N.Y., Inc. v. City of New York, 793 N.Y.S.2d 356; 2005 N.Y. App. Div. LEXIS 3743 (April 12, 2005); Z.J. Gifts D-4, L.L.C. v. City of Littleton, Civil Action No. 99-N-1696. Memorandum Decision and Order (D. Colo. March 31, 2001) (finding “plaintiff’s argument that it is not an adult entertainment establishment frivolous at best”); Taylor v. State, 2002 Tex. App. LEXIS 5381 (Tex. App. 2002) (noting that “the nonadult video selections appeared old and several of its display cases were covered with cobwebs”); Illinois v. Lion’s Den, Inc., June 10, 2005, Circuit Court of the Fourth Judicial Circuit, Effingham County, Ill., Case 04-CH-26 (noting that “the accuracy and credibility” of the evidence on inventory in a Lion’s Den was suspect, and that testimony was “less than candid” and “suggested an intention to obscure the actual amount of sexually explicit material sold”)…
[T]he City Council finds:
(1) Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation.
(2) Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.
(3) Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating….
“Adult Bookstore or Adult Video Store” means a commercial establishment which, as one of its substantial business activities, offers for sale or rental for any form of consideration any one or more of the following items: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas.” A “substantial business activity” exists where the commercial establishment meets any one or more of the following criteria:
(a) at least 25% of the establishment’s displayed merchandise consists of the foregoing items, or
(b) at least 25% of the wholesale value of the establishment’s displayed merchandise consists of the foregoing items, or
(c) at least 25% of the retail value of the establishment’s displayed merchandise consists of the foregoing items, or
(d) at least 25% of the establishment’s revenues derive from the sale or rental, for any form of consideration, of the foregoing items, or
(e) the establishment devotes at least 25% of its interior business space or, if less than 25%, devotes at least 500 square feet (500 sq. ft.) of its interior business space, to the display, sale, and/or rental of the foregoing items (aisles and walkways used to access said items shall be included in “interior business space”); or
(f) the establishment offers for sale or rental at least one thousand (1,000) of the foregoing items and limits access to the premises or to the portion of the premises occupied by said items to adults only; or
(g) maintains an “adult arcade,” which means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis on matter exhibiting “specified sexual activities” or “specified anatomical areas.”…
“Nudity or a State of Nudity” means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola…
“Sexual Device” means any three (3) dimensional object designed and marketed for stimulation of the male or female human genitals, anus, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos, vibrators, penis pumps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.
“Sexual Device Shop” means a commercial establishment that regularly features sexual devices. Nothing in this definition shall be construed to include any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services, nor shall this definition be construed
to include commercial establishments which do not restrict access to their premises by reason of age…
“Specified Anatomical Areas” means and includes:
(a) Less than completely and opaquely covered: human genitals; pubic region; buttock; and female breast below a point immediately above the top of the areola; and
(b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
“Specified Criminal Activity” means:
(a) any of the following specified offenses for which less than five years elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date:
(1) rape, child molestation, sexual assault, sexual battery, aggravated sexual assault, aggravated sexual battery, or public indecency;
(2) prostitution, keeping a place of prostitution, pimping, or pandering;
(3) obscenity, disseminating or displaying matter harmful to a minor, or use of child in sexual performance;
(4) any offense related to any sexually-oriented business, including controlled substance offenses, tax violations, racketeering, crimes involving sex, crimes involving prostitution, or crimes involving obscenity; or
(b) any attempt, solicitation, or conspiracy to commit one of the foregoing offenses.
“Specified Sexual Activity” means any of the following:
(a) intercourse, oral copulation, masturbation or sodomy; or
(b) excretory fuctions as part of or in connection with any of the activities described in (a) above…
The City Clerk shall issue a [business] license unless:…
(5) Any sexually oriented business in which the applicant has had an
influential interest, has, in the previous five (5) years (and at a
time during which the applicant had the influential interest):
(i) been declared by a court of law to be a nuisance; or
(ii) been subject to a court order of closure or padlocking.
(6) An applicant has been convicted of or has pled guilty or nolo contendere to a specified criminal activity as defined in this Ordinance…
Sexually oriented businesses and sexually oriented business employees shall permit the City Clerk and his or her agents to inspect, from time to time on an occasional basis, the portions of the sexually oriented business premises where patrons are permitted, for the purpose of ensuring compliance with the specific regulations of this Ordinance, during those times when the sexually oriented business is occupied by patrons or is open to the public…
The City Clerk shall issue a written notice of intent to revoke a sexually oriented business license or a sexually oriented business employee license, as applicable, if:…
(2) The licensee has knowingly or recklessly engaged in or allowed possession, use or sale of controlled substances on the premises of the sexually oriented business;
(3) The licensee has knowingly or recklessly engaged in or allowed prostitution on the premises of the sexually oriented business;
(5) The licensee has knowingly or recklessly engaged in or allowed any specified sexual activity to occur in or on the premises of the sexually oriented business…
No sexually oriented business shall be or remain open for business between 12:00 midnight and 6:00 a.m. on any day…
It shall be the duty of the operator of a sexually oriented business to: (a) post conspicuous signs stating that no loitering is permitted on such property; (b) designate one or more employees to monitor the activities of persons on such property by visually inspecting such property at least once every ninety (90) minutes or inspecting such property by use of video cameras and monitors; and (c) provide lighting of the exterior premises to provide for visual inspection or video monitoring to prohibit loitering. If used, video cameras and monitors shall operate continuously at all times that the premises are open for business. The monitors shall be installed within an operator’s station…
All existing sexually oriented businesses and sexually oriented business employees are hereby granted a De Facto Temporary License to continue operation or employment for a period of ninety (90) days following the effective date of this Ordinance. By the end of said ninety (90) days, all sexually oriented businesses and sexually oriented business employees must conform to and abide by the requirements of this Ordinance…
It shall be unlawful to establish, operate, or cause to be operated a sexually oriented business in the City of Johns Creek, unless said sexually oriented business is at least:
(1) 1000 feet from any parcel occupied by another sexually oriented business or by a business licensed by the State of Georgia to sell alcohol on the premises; and
(2) 1000 feet from any parcel occupied by a house of worship, public or private elementary or secondary school, public park, or any residence.
See the complete ordinance ( PDF, 5.9MB ).
Applications to Capital Video
While Georgia and Massachusetts law are not identical, the Johns Creek ordinance has some elements that are worth keeping in mind when evaluating Capital Video’s porn shop plans at 135 King Street. Capital Video says it
plans to limit the adult section of its store to 984 square feet, so
that it will comply with Northampton’s new adult-use ordinance. This
might become a point of contention should the non-adult portions of
Capital Video’s store come to contain items that a reasonable person
would call ‘adult’. We observe that bondage equipment, featured in
Capital Video’s initial proposed storefront, is called a “Sexual Device” in the Johns Creek ordinance.
The Johns Creek ordinance addresses issues of compliance monitoring, hours, security, lighting, certain kinds of sexual and drug activity on store premises, and the criminal history of those involved with adult enterprises, all issues that Northampton’s City Council might want to consider, particularly if problems arise around Capital Video’s store.
Among various interesting links for anti-pornographers, Keep Johns Creek Safe links to the website of The Law Office of Scott D. Bergthold, P.L.L.C., which declares that it is “the nation’s only law firm focused exclusively on the drafting and defense of municipal adult business regulations.
“The firm’s goal is to leverage its expertise on behalf of municipal clients through constitutionally sound ordinances and vigorous defense of local regulations.”