A federal lawsuit filed nine years ago that challenges Sandy Springs’ adult-business restrictions as unconstitutional is finally slated for trial on Aug. 18.

But the city may have changed the playing field with a quiet, last-minute zoning change that essentially allows strip clubs and adult bookstores to operate in more areas.

“We were never told” that zoning change was coming, said Cary Wiggins, the attorney representing three local adult businesses in the lawsuit. The move could delay the trial, he said.

City Attorney Wendell Willard and Scott Bergthold, the Tennessee attorney representing Sandy Springs in the lawsuit, did not respond to questions.
In the lawsuit, the adult bookstore Inserection and the strip clubs Mardi Gras and Flashers allege that the city is trying to force them out of business with laws violating the First and Fourteenth Amendments. First filed in 2006, the case has dragged on in part due to previous tweaks of the city code.

It is one of four lawsuits still pending in the local legal war against adult businesses that dates back to pre-cityhood Fulton County ordinances in the 1990s. The businesses argue that the city is making up excuses to shut them down for moral reasons. The city has argued that the businesses create criminal activity.

Wiggins also represents Inserection in a spinoff suit challenging the city’s obscenity law banning sex toys. An appeal in that case may go to federal court this fall. Meanwhile, the local club Main Stage/Coronet Club has a similar suit, also filed in 2006, pending in Fulton County Superior Court. Also pending is a 2011 case where the city turned the tables and sued the four businesses for alleged legal violations.

“It ought to be hard for the city of Sandy Springs to ruin longstanding businesses that have caused little or no harm,” said Alan Begner, a local attorney representing Main Stage/Coronet Club, about the length of the legal wars. “We’ve fought them all along. They’ve amended their laws a lot to do it in a way they think is constitutional.”

The most recent legal change—the one that throws a curveball at the federal lawsuit—allows “adult establishments” that satisfy permit requirements to operate in “all overlay districts.” That zoning amendment first went before the city Planning Commission in May, but returned in July out of some sort of procedural concern. That month, the commission and the City Council both approved the change without discussion or explanation of its purpose.
City spokeswoman Sharon Kraun said the change is due to the lawsuit.

“The amendment adds language to clarify that adult business can locate in the Overlay District if certain requirements are met,” Kraun wrote in an email. “This language [was] requested by the attorneys representing the city in pending litigation to make sure the language was clarified. Because this involves pending litigation, there isn’t much more we can say.”

Begner said it is probably an attempt to defuse allegations in his and Wiggins’ lawsuits that the city’s zoning restrictions, in practice, leave almost nowhere in town for the businesses to move if necessary. Under local codes, adult businesses must be at least 300 feet from residential areas, 400 feet from another adult business, 50 feet from any business selling alcohol, and not adjacent to churches, schools or many civic buildings.

The pretrial order in the federal lawsuit formally says that the codes “fail to provide for adequate alternative avenues of communication for sexually oriented expression.”

“I think they’re probably trying to create more locations,” Begner said.

Wiggins said that Bergthold notified him of the zoning change only on July 29, and that further analysis would be needed to see how it might impact the lawsuit and its court date.

However, the zoning is just one of four major issues in the appeal. Other points of dispute are “overbroad” restrictions on alcohol sales; “arbitrary and capricious” rules on the expiration of the businesses’ zoning status; and an “overbroad” ban on “employees exposing ‘specified anatomical areas’ to patrons in private rooms.”

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