Agenda - Planning Commission - 12/06/2018

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Zoning Bulletin October 10, 2018 I Volume 12 I Issue 19 associated with sexually oriented businesses Citation: Stardust, 3007 LLC v. City of Brookhaven, 899 E3d 1164 (11 th Or 2018) The Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia. ELEVENTH CIRCUIT (GEORGIA) (08/10/18)—This case addressed the issue of whether an ordinance regulating businesses that gave "special promi- nence" to sexual devices violated that United States Constitution, including the First Amendment right to freedom of speech. The Background/Facts: In January 2013, the City of Brookhaven (the "City") adopted a code (the "Code") to "regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleteri- ous secondary effects of sexually oriented businesses within the City." The Code regulated various types of adult businesses, which it referred to as "[s]exu- ally [o]riented [b]usiness[es]." Such regulated businesses included "sexual de- vice shop[s]" defined as "a commercial establishment that regularly features sexual devices." Looking at Code definitions, the Code essentially regulated commercial businesses that "consistent[ly] and repeated[ly]" "give special prominence to" "any three (3) dimensional object designed for [sexual] stimulation." The Code did not ban sexually oriented businesses, but required, among other things, that they be licensed and not operate "within 100 feet of another sexually oriented business" or "within 300 feet of a residential district, place of worship, park, or public library." There were 73 locations in the City where a licensed sexually oriented business could operate. In February 2013, Stardust 3007, LLC ("Stardust") opened a retail store in the City. Stardust was located across the street from a residential area and next to an adult entertainment club that qualified as a "sexually oriented business" under the Code. In late April 2013, Stardust began selling sexual devices. In June 2013, the City began ticketing Stardust for its Code violations, including operating a sexually oriented business: without a license; within 100 feet of an- other sexually oriented business; and within 300 feet of a residential zone. City Code enforcement officers identified over 1500 alleged sexual devices in the Stardust store. After the City brought a legal action against Stardust for its alleged Code violations, Stardust filed a suit against the City first in state court and then in federal court. Stardust argued that its constitutional rights had been violated because: (1) the Code impermissibly restricted Stardust's right to free speech; (2) the Code's definition of "sexual device shop" was void for vagueness; (3) the City's enforcement of the Code violated Stardust's right to equal protection; and (4) the Code impermissibly infringed on an individual substantive due pro- cess right to intimate sexual activity. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court granted summary judgment in favor of the City. Stardust appealed. DECISION: Judgment of district court affirmed. © 2018 Thomson Reuters 3