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Stardust, 3007 LLC v. City of Brookhaven

United States District Court, N.D. Georgia, Atlanta Division

January 13, 2015

STARDUST, 3007 L.L.C. d/b/a Stardust, and MICHAEL MORRISON, Plaintiffs,
v.
CITY OF BROOKHAVEN, GEORGIA Defendant-Counterplaintiff, and SUSAN CANON, individually and in her official capacity as Director of Community Development, Defendant.

ORDER AND OPINION

ELEANOR L. ROSS, District Judge.

This matter is before the Court on Defendant-Counterplaintiff's Motion for Preliminary Injunction. (Doc. No. 7) After conducting a hearing and considering the submissions of the parties, the Court enters the following Order.

I. BACKGROUND

a. Facts of the Case

The City of Brookhaven ("the City" and/or "Brookhaven") was formed in late December of 2012. Shortly thereafter, in February of 2013, Plaintiff Michael Morrison opened a retail establishment, co-plaintiff Stardust, 3007 L.L.C. ("Stardust"). At its inception, Stardust claimed to be, and was licensed as, a "retail smoke shop, " selling tobacco, pipes, and other novelty items. The store operated in this iteration for approximately two months before informing the City that it would be adding merchandise to its inventory that would fall under the label "sexual devices" as described in § 15-401 of the City's municipal code. This chapter of the municipal code is titled the "Sexually Oriented Business Code" (SOB Code). Without waiting for a response from the City, Stardust did add such items to its inventory. The City claims that this is the point at which Stardust began illegally operating a sexually oriented business, by virtue of its becoming a "sexual device shop."

The SOB code defines a "sexual device shop" as "a commercial establishment that regularly features sexual devices." (Doc. No. 5-2) It further defines "regularly" as the "consistent and repeated doing of an act on an ongoing basis, " and "feature" as "to give special prominence to." Id . Stardust did not, and does not, have a license to operate a sexually oriented business. Additionally, Stardust shares a property line with the Pink Pony, another SOB, and is less than 300 feet from a residential area, in violation of §15-419(a)-(b). Thus, the City contends that Stardust is illegally operating an SOB in three ways: a) without having a license to operate an SOB, b) in impermissible proximity to another SOB, and c) in impermissible proximity to a residential area. In accordance with its reading of the municipal code, the City began issuing citations against Stardust and its employees in June of 2013. (Doc. No. 13, ¶ 62)

Over a number of months, the City issued hundreds of citations to Stardust. During this time, Morrison requested that the City send a code enforcement officer for him to speak with so that he could adjust his inventory or displays in such a way as to avoid being labeled a "sexually oriented business" and having to abide by the regulations in the SOB Code. (Doc. No. 5-5) In a letter dated August 13, 2013, Defendant Canon directed Morrison to the section of the code which defines "sexual device shop" and told him that, as he was represented by counsel, he should confer with his attorney to obtain legal advice. (Doc. No. 5-6) The City continued to cite Stardust through the end of 2013.

Also during this time, Stardust repeatedly applied for a sign permit so that it could erect a sign in the front of the store. (Doc. No. 13, ¶¶ 69-71) After several failed attempts to submit a completed application, Stardust managed to do so in March of 2014. Id . This application was denied. The reason given for denial was that Stardust was operating an SOB without a license to do so, and in a prohibited location. (Doc. No. 13, ¶ 73) Stardust attempted to appeal this permit denial. Unable to locate an appeals form, Stardust sent a letter to the City stating its reasons for appeal. (Doc. No. 13, ¶¶ 76-82) Brookhaven responded by providing Stardust with an appeal form and 24 hours in which to complete and submit it. Stardust did not meet this 24 hour deadline, and, as a result, Defendant Canon refused to process the administrative appeal. Id.

Currently, Stardust is a operating as a retail establishment with inventory consisting of sexually explicit media, lingerie, novelty gifts, and a variety of sexual devices as defined by the code. It does not have a license to operate as a sexually oriented business, shares a property line with the Pink Pony, and is less than 300 feet from a residential district.

b. Procedural History

Prior to a federal suit being filed, as mentioned above, Stardust had been cited hundreds of times by the City for failing to abide by the municipal ordinances in question. In January of 2014, the City ceased citing Stardust and filed an accusation in Municipal court. In response, Stardust filed suit in DeKalb County Superior Court, challenging the constitutionality of the SOB ordinances it was alleged to have violated.

Stardust also filed suit in federal court, initially alleging violations of the First Amendment and Due Process as a result of the denial of a sign permit. Brookhaven then counterclaimed, alleging violations of its Sexually Oriented Business (SOB) Code for Stardust's continuing operation in its location. The City now seeks a preliminary injunction. Subsequent to the Motion for Preliminary Injunction, Stardust filed an Amended Complaint which included direct challenges to the constitutionality of the SOB Code that it was being accused of violating in the counterclaim. (Doc. No. 13)

On December 18, 2014, the Court heard from both parties on the Motion for Preliminary Injunction. As of the date of that hearing, discovery ...


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