Coweta County, Georgia- The attorney for Starship calls the county's obscenity ordinance banning the sale of sex toys unconstitutional because local governments don't have the power to define criminal offenses or to provide for criminal punishment.
That is one of several arguments laid out by Alan Begner [pictured] in the ante litem letter he sent to Coweta County on Feb. 2.
Scott Bergthold, the sex law expert who helped write Coweta's new ordinances, disagrees, saying that under Georgia law, "it is clear that the county can pass ordinances for the health, safety and welfare" of its residents, and counties can punish ordinance violations "with fines or imprisonment or both."
"If what they are claiming was the case, you essentially eliminate much of the county codes across the state," Bergthold said. "It is simply not the case that you can't prohibit something that is not otherwise prohibited by state law."
Bergthold, who lives in Tennessee, is being paid an hourly rate of $250 by Coweta County. Information on the number of hours Bergthold has spent so far on the case is not available.
Just because an ordinance violation can be punished by jail time does not necessarily mean it is a criminal offense, Bergthold said.
"It does not make it a misdemeanor or a felony," he said. General law provides for counties to regulate certain things and "to make those violations of ordinances punishable by monetary penalties and fines and/or imprisonment."
Coweta's new obscenity ordinance makes the sale, or possession with intent to sell, of sex toys punishable by up to six months in jail and/or a fine of up to $1,000.
A quick search of Coweta's ordinances turned up a few violations that are punishable by jail time. A violation of the county's backflow prevention ordinance can be punished by a fine of up to $1,000 per day or 60 days in jail, or both. The second offense of allowing a child to violate curfew, and tampering with utilities, both carry similar punishment
The county ordinance setting out rules for county recreation areas states that violations "shall be punished as a misdemeanor in the same manner as are other ordinances of the county with a fine of not more than $1,000 and a maximum term in the county jail of not more than six months."
That statement applies to all rules for the parks, from bringing alcohol or fireworks onto county recreational fields to taking a dog onto the recreation fields, bicycling outside of designated areas, not abiding by storm warnings, and using profanity.
Begner cites article 9, section II of the state constitution, which deals with the home rule power of local governments.
Subparagraph C states that the home rule power granted "shall not be construed to extend to the following matters or any other matters which the General Assembly by general law has preempted or may hereafter preempt, but such matters shall be the subject of general law or the subject of local acts of the General Assembly." One authority not included in home rule is "action defining any criminal offense or providing for criminal punishment."
Begner also takes offense to the county's "emergency meeting" held on Jan. 26.
At that meeting, which had been announced 24 hours earlier, on a Sunday, Bergthold entered into the record documentation of the "secondary effects" of adult businesses, and discussed various court cases upholding regulations on sexually-oriented businesses.
Regulations that are based on secondary effects rather than the actual content of protected "speech" have survived court challenges nationally.
"The refusal to tell Starship or me about the emergency meeting deprived us of the opportunity to present to you the substantial evidence showing that non-adult stores with only a small amount of sexually explicit material and no viewing booths cause no secondary effects," Begner says in the letter. "Unless there exists real evidence of secondary effects caused by general merchandise stores with a small amount of sexually explicit materials for sale, the county lacks the power to enact its new ordinances."
Begner says that the 25 percent threshold remained in the county's new ordinance because "secondary effects are not found to occur in smaller percentage stores."
Additionally, Begner said, "Scott Bergthold presented no evidence that sex devices used to stimulate genitals have ever caused a single harm to anyone. They have never been known to have, and never cause secondary effects."
Bergthold said that the American Planing Association has found that negative secondary effects can occur when pornography and sex toys together are just 10 percent of a store's inventory. He said he also submitted studies showing secondary effects from the stores that are only allowed to have a certain percentage of adult materials.
At the commission meeting, Bergthold went through a Power Point presentation and gave a summary of the documentation on secondary effects. He submitted to the county a large box full of printed documentation, and a CD containing that information.
Begner cites a U.S. Supreme Court decision in the case of City of Erie V. Pap's AM, and said that the enactment of ordinances curtailing protected speech requires that affected businesses and interested parties have advance notice of the meeting, advance copies of the ordinance, and sufficient time to participate in the presentation and challenge of the secondary effects ordinances.
That is not what the Supreme Court said in that case at all, Bergthold said. "That comment from the city of Erie case doesn't have anything to do with the formal procedures for the adoption of an ordinance."
Begner further states that the obscenity law is "unconstitutionally overbroad" because it does not create exceptions for ribbed condoms or Viagra.
Before voting to approve the two new ordinances, the commissioners went into a closed session to discuss pending or potential litigation.
The county violated the Georgia Open Meetings Act by doing that, Begner said. "Starship had not threatened litigation. It had no reason to -- it had been told it would lawfully open two days later."
In closing, Begner says that the county's obscenity law is overbroad, violates freedom of speech, due process, and the right of privacy included in the Georgia Constitution.
"It is also demeaning to women to have the Board of Commissioners tell them what they can or can't do with their private, intimate lives," Begner said.
He said that the county's willful refusal to issue a license for a lawful use and the enactment of two ordinances "meant to destroy Starship's business" have caused Starship to suffer damages in excess of $1 million.
"You are hereby afford an opportunity to investigate these claims and ascertain the truth of them, and to avoid the incurrence of unnecessary litigation," Begner said.
He adds that a lawsuit for civil rights violations "is ripe and also being considered."
