A federal judge last week issued an injunction finding Cheshire Bridge Road “adult superstore” Tokyo Valentino in violation of Atlanta’s adult entertainment ordinance and tossed the store’s constitutional challenge to the city’s statutes.
The injunction and order signed by Judge Thomas Thrash of the Northern District of Georgia said the store, one of four metro Tokyo Valentino outlets, has been in violation of a city ordinance since it opened in 1996 that prohibits adult businesses from being within 500 feet of a residential area.
But it was the store’s own lawsuit against the city in 2015 that led to the city’s counterclaims.
As Thrash noted in his summary judgment order, Tokyo Valentino was operating as an adult bookstore and “mini-cinema” featuring 20 private viewing booths for many years and was known to city officials, who nonetheless allowed it to remain in business.
As detailed in court filings, Atlanta revised its code in 1987 to place the 500-foot limit on “adult businesses,” which included adult bookstores, movie theaters, “mini-motion picture” theaters and entertainment establishments.
But there was, in Thrash’s terms, a loophole: the city’s definition of adult bookstores said nothing about selling sex toys or explicit videos.
Michael Morrison, the owner of Tokyo Valentino’s corporate parent, contacted the city in 1996 about opening a store to sell “novelties, cards, CD-ROM, video, lingerie (not live) and condoms.” His letter said no adult books or video rooms would be included.
Morrison followed up with a permit application the same day City Council passed an amendment adding novelties and videos to the definitions list.
The city denied the permit, but a Fulton County Superior Court judge ruled the store should have been deemed a lawful nonconforming use under the prerevision code and ordered the permit granted. The Georgia Supreme Court declined to hear the city’s appeal.
Shortly after opening what would in time become Tokyo Valentino, the store installed 20 video booths in its basement.
“The sexually erotic media displayed in these booths is, and has always been, non-obscene, constitutionally-protected erotic speech,” said the store’s complaint. Since then, it said, the store was often visited by code and building inspectors, and the city knew about the video booths in the basement.
The store’s corporate owner, Cheshire Visuals, filed a federal lawsuit in 1998 seeking to have the city pay for damages it suffered while its permit request was denied, although it did not challenge the constitutionality of either the old or revised ordinance. The court granted summary judgment to the city, and the U.S. Court of Appeals for the Eleventh Circuit upheld that ruling.
The situation remained unchanged until 2014, when the store applied to the city for a permit to renovate its facade and build out an unused section.
“The plan was to begin using an unoccupied portion of the building to operate a social club” that “would not offer adult entertainment or alcoholic beverage service,” the complaint said.
The permit application “sparked a neighborhood uproar,” it said. “Presumably based on political pressure, the city’s inspectors then visited the property a number of times.”
The city determined the video booths in the basement were a code violation and issued a “cease and desist” order demanding they be removed. The city’s Board of Zoning Adjustments denied the store’s appeal.
Tokyo Valentino’s corporate owner, now known as Cheshire Bridge Holdings LLC, sued the city and its zoning board in 2015, claiming Atlanta’s adult entertainment ordinance violated its Fourth Amendment rights.
The city counterclaimed, saying the store had been in violation of its permit since it opened and that its long-standing unlawful operation forfeited any nonconforming use rights it might have had and asking the court for an injunction shutting it down.
Both sides moved for summary judgment.
Thrash disposed of the store’s constitutional claims for several reasons, beginning with the earlier Cheshire Visuals litigation, which he said offered an opportunity to challenge the constitutionality of the adult entertainment code.
Because both that suit and the 2015 action involved the same parties and were adjudicated to conclusion, the 2015 claims are precluded, he wrote.
“More specifically, if the plaintiffs could have challenged the constitutionality of the same definitions of three types of adult businesses back then that they do now … then their challenges must fail,” Thrash said.
As to the store’s argument that the regulations violated the store’s free speech rights, they “do not ban outright any adult businesses but merely restrict where they may be located,” he wrote.
On Jan. 4 Thrash issued a permanent injunction barring the store from operating an adult mini-motion picture theater, adult bookstore or adult entertainment establishment.
Cary Wiggins of Wiggins Law Group, who represents the plaintiff, said he and his client are studying the order and considering whether an appeal or other avenue is the most appropriate response.
The city is represented by Senior Assistant City Attorney Jeffrey Haymore and outside counsel Scott Bergthold of Chattanooga. A city spokeswoman said via email that Thrash’s order should lead to the store’s closure, “because the zoning ordinance, since 1987, has prohibited an adult business at the site.
Asked whether Tokyo Valentino may have brought the injunction on itself by suing in 2015, the city responded that “no one knows what would have happened if Tokyo had not engaged in those activities and sued the City and the BZA.”