ATLANTA, Ga.—It's been a long, harrowing fight for adult superstore Tokyo Valentino, but thanks to a decision by the 11th Circuit Court of Appeals, the store can to continue to operate in its present location, arcade booths intact, as its lawsuit against the city continues.
The 11th Circuit decision, which was handed down on Friday, is a major win for the team of First Amendment attorneys who've been fighting the case for nearly four years. These would include Cary Wiggins of Wiggins Law Group, who brought the two original lawsuits against Gwinnett County seeking to keep the store open—one in 2015 which was dismissed, and another against the county's revised anti-adult ordinance, which led to an injunction against the store last year, and which is the subject of Friday's ruling—and Gary Edinger and Daniel Aaronson of Benjamin, Aaronson, Edinger & Patanzo, who argued the appeal of the trial court's dismissal of the lawsuit.
Tokyo Valentino, which is owned by Michael Morrison (no, not the '70s-'80s porn actor), opened in June of 2015, has plenty of sale items that could easily rankle county officials, including pipes, bongs, hookahs, stillettos, nightgowns, teddies, party supplies and incense, plus a few adult magazines, dildos, vibrators, lube and a variety of fetishware, none of which takes up even the ten square feet of floor space that, according to county ordinance, is the limit the store could use for the sexy items without being officially labeled "adult."
The dismissal of Wiggins' most recent lawsuit, according to U.S. District Judge Thomas Thrash, was based on the city's 1996 adult business ordinance, under which Tokyo Valentino apparently should not have been granted a business license—but it was, and according to the 11th Circuit opinion, Tokyo Valentino "thereafter operated an adult business with a variety of services prohibited by the 1987 and the 1996 Codes at the Property, including the videoplexx. The City took no action against those activities despite the fact that the City sent inspectors to the Property on multiple occasions both before and after the store’s opening."
While the full story of Tokyo Valentino's battles with the city and county is too complex to go into here, suffice to say that things came to a head in 2014, when the store sought a permit to renovate its facade and to open a "social club" in a then-unused section of the building. It was only then that city inspectors decided that the arcade booths in the store's basement violated the 1996 code, and demanded that they be removed. Morrison sued, and Judge Thrash dismissed, the case, claiming that the lawsuit was untimely, because Morrison "could have challenged the constitutionality of the same definitions" of adult businesses in the zoning code in its earlier suits—even though the city took no action on those definitions for more than 17 years.
Or as the 11th Circuit opinion notes, the "fact remains that the city never initiated a code enforcement proceeding to challenge [Tokyo Valentino’s] operations at the property until it issued the cease and desist notice in 2014... The city argues that writing that the property was 'not approved for adult business'’ in the [1997] building permit provided notice that it was applying the 'adult business' provisions to [Tokyo Valentino]. But the property was never approved for '‘adult business'... Moreover, the City fails to demonstrate that [Tokyo Valentino] knew about the 'not approved' change in the bottom corner of the permit. And the City has cited no authority to support the proposition that a change in a building permit for interior alterations, or stating that a property is not zoned for a particular activity on such a permit, has any legal ramifications or is an actual enforcement action...
"Ultimately, the City attempts to find an elephant in a mousehole. Statements written in tiny font in a corner or in unclear handwriting in a building permit, about which there are conflicting explanations, and that were not discussed in the previous litigation, cannot serve to preclude facially valid constitutional claims."
Hence, the city's argument that Morrison had lost his chance to challenge the zoning code as unconstitutional was in fact not lost, thanks to the city's years of inaction on its own code.
Therefore, as things stand now, Wiggins' original 2014 case against the city is back on the docket, and the appeals court remanded it to the district court "for further consideration."
The 11th Circuit decision is another loss for prominent anti-adult attorney Scott D. Bergthold, who, along with his law partner Bryan Dykes, has handled the bulk of the legal arguments in the case. However, Q Magazine's ProjectQ has reported that as of Sunday, Bergthold is no longer representing Atlanta in the case. The city has already paid Bergthold's firm $267,000 in fees, and there are certainly more fees to come now that the city has dissolved its relationship with Bergthold.
On the other hand, Aaronson told Law.com reporter Greg Land that he looked forward to having the store’s arguments decided on their merits and that the ruling bodes well for his client, which has remained open for business throughout the dispute with the city.
"This decision might be the writing on wall," he said. "I think Tokyo Valentino’s going to be there a long time."
In the meantime, in the wake of Friday's ruling, Morrison has offered to settle with the city.
"We are requesting a negotiated settlement with the city attorney to pay back our legal fees of approximately $250,000 and finally deem us to be a legally licensed and correctly-zoned adult entertainment establishment after our continuous operation of 20 years and two legal victories validating our rightful operation," Morrison told Project Q. "If they are willing to grant us this irrevocable, rightful distinction then we will drop our lawsuit challenging their 40-year-old flawed adult entertainment code, and our pursuit of damages."
The 11th Circuit opinion can be found here.
