The city scored a victory in its federal lawsuit against an adult-oriented store when a three-judge panel of the 11th Circuit Court of Appeals issued an opinion Aug. 10 that the business must comply with Brookhaven’s ordinance and stop selling sex toys.
The appeals court denied claims by Stardust, a store at 3007 Buford Highway, that the city’s ordinance is unconstitutional and infringed on its First Amendment right to display sexual devices.
City Attorney Chris Balch praised the appeals court opinion.
“The city of Brookhaven is committed to having constitutionally sound and enforceable ordinances to protect the health, safety and welfare of our residents and guests,” he said in a prepared statement.
Cary Wiggins, attorney for Stardust, said he and his client are “exploring all options.”
The ruling is part of a legal battle that has ensued since the days of the city’s incorporation in 2012.
Weeks after the city was incorporated, the business began selling “sexual devices” which the city contends violated city ordinance. The city began code enforcement against Stardust for selling sex toys, which it deemed as illegal under its ordinances. In 2013, for example, Stardust was cited by code enforcement more than 500 times.
The city states Stardust cannot operate legally because of its close proximity to another sexually oriented business, the Pink Pony, and also because it did not clearly define what kind of business it was when it applied for a business license.
Representing the city in the Stardust lawsuit is Scott Bergthold, a Tennessee attorney who specializes in municipal laws cracking down on sexually oriented businesses. Bergthold represented Brookhaven in its lawsuit against the Pink Pony which resulted in a 2014 settlement in which the strip club agreed to close down in 2020 while also paying the city $225,000 a year to cover police costs.
U.S. District Judge Eleanor Ross in 2016 ruled in favor of Brookhaven in the Stardust suit. Stardust then appealed its case to the 11th Circuit Court of Appeals.
Judge Jill Pryor wrote the 11th Circuit opinion and said the city’s code can comply with the First Amendment if it leaves open alternate avenues for a display of sex products. The city has identified 73 other locations in the city limits where Stardust can operate legally, according to the opinion.
“When drafting the code the city relied on — and cited — dozens of studies and cases linking the operation of adult businesses to negative secondary effects. This evidence is sufficient to establish that the code, in general, advances the city’s legitimate interest in regulating those effects,” Pryor wrote.
She further wrote that, “Stardust has presented no evidence disputing the city’s rationale or factual findings. Instead, Stardust relies on rhetorical questions, asking, for example, ‘Who is harmed by a retail store advertising — inside its premises — sexual devices in a way that ‘gives special prominence to’ them?’ This kind of speculative reasoning is insufficient to survive summary judgment.”
“The appellate court specifically held that the city’s regulation of establishments like Stardust ‘furthers the city’s interest in avoiding the secondary effects of adult businesses,’” said Balch, the city attorney. “We look forward to seeing Stardust’s full compliance with the city’s ordinances and the permanent injunction entered against the store by the DeKalb County Superior Court.”