AUGUSTA, Ga.—Score one for the small-town adult retailer. After an eight-year battle with the city, the Augusta, Ga., X-Mart Supercenter will finally be able to open its doors for business, despite the continuing efforts of four city commissioners to keep it closed.
Fortunately for the city, six other commissioners were thinking clearly Tuesday when they voted to pay the X-Mart owners $550,000 to settle all outstanding claims. Had the vote gone the other way, the city could have owed X-Mart around $4 million in lost revenue dating back to 2002, when the city forced the store to close, citing violations of local zoning laws that had been rushed into existence, without a public hearing, to keep the store from opening.
The X-Mart is located near a highway in South Augusta, about two miles from the city center. Commissioners had argued for years that the store would not look for travelers coming into the city, which has only one other adult video store, in North Augusta.
The store owners fought the closure, and in 2005 a federal appeals court upheld the city’s right to keep the store closed. In 2008, however, the 11th Circuit Court of Appeals ruled that the city could not use zoning restrictions to keep the store from opening, according to wrdw.com—but the store remained closed after the owner was denied a business license, ostensibly because the original 2002 application was incomplete.
The city still owed the owners damages for the years it was not allowed to operate, and that’s where the battle continued. In March 2009, U.S. District Court Judge Dudley H. Bowen Jr., who had been overruled by the appeals court, said that X-Mart was “entitled to lost profit damages of about $1,300 a day, based on what the store brought in while it was open for a few months in 2003, but he limited the damages to 99 days.”
The amount came to about $130,000. X-Mart found the amount unacceptable, and decided to fight on, appealing the decision. It was at this point that the city decided to cut its losses and settle. The city had already spent about $150,000 in legal fees on the case and was looking at another $100,000 in legal fees, plus the possibility that it would lose and have to pay upwards of $4 million in lost profit for the years 2002-10. For six of the ten city commissioners, that prospect made no sense at all.
According to the Augusta Chronicle, Gary Edinger, the X-Mart attorney, said his clients were pleased with the decision and plan to open the store within weeks.
"We've got the right to open now, as opposed to a year from now, and certainty makes sense for any plaintiff," he said.
Commissioner Jerry Brigham defended his vote against the settlement.
"I have voted against adult entertainment licenses for years," he said. "Why would I not vote against it?"
