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Stardust, LLC v. City of Brookhaven

Court of Appeals of Georgia, Third Division

February 20, 2019

STARDUST, 3007, LLC et al.
v.
CITY OF BROOKHAVEN. STARDUST, 3007, LLC et al.
v.
CITY OF BROOKHAVEN.

          GOBEIL, COOMER and HODGES, JJ.

          Gobeil, Judge.

         In Case No. A18A1958, Stardust, 3007, LLC ("Stardust") appeals the DeKalb County Superior Court's order finding it in civil and criminal contempt for violating the court's previously issued injunction, which restrained Stardust and its owner Michael Morrison from operating a sexual device shop at 3007 Buford Highway NE in the City of Brookhaven ("the City") due to Stardust's failure to comply with the relevant City ordinance. Stardust argues that (1) the superior court erred in holding Stardust and Morrison in criminal contempt because the City failed to prove contempt beyond a reasonable doubt; (2) the superior court exceeded the statutory maximum fine of $1, 000 for a single act of criminal contempt; (3) the superior court erred in granting the City attorney fees without first holding an evidentiary hearing; and (4) the injunction violates the First Amendment of the Georgia Constitution.

         Additionally, in companion Case No. A19A0228, Stardust appeals a second order finding it in civil contempt for violating the same injunction on several dates in November 2017. In its sole enumeration of error, Stardust argues that the superior court erred in its method of awarding civil contempt fines because Stardust's conduct constituted a single act of contempt.

         In reviewing these cases, we bear in mind that "[t]he question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion." Affatato v. Considine, 305 Ga.App. 755, 760 (2) (a) (700 S.E.2d 717) (2010) (citation and punctuation omitted). "Once an act has been determined to constitute contempt of court, the action the court takes to deal with the contempt determines whether the contempt is deemed 'criminal' contempt or 'civil' contempt." Rhone v. Bolden, 270 Ga.App. 712, 714 (2) (608 S.E.2d 22) (2004) (citation and punctuation omitted). "The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior contempt to preserve the court's authority and to punish disobedience of its orders. Civil contempt, on the other hand, is conditional punishment which coerces the contemnor to comply with the court order." Id. (citations and punctuation omitted). For the reasons that follow, we affirm in both cases.

         Background/Procedural History

         After its incorporation, the City enacted Ordinance 2013-01-51 in January 2013 to "regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City" ("the Code"). This ordinance was amended in May 2013. The Code, as amended, applies to various types of "sexually oriented businesses," including, as relevant here, "sexual device shops," which the code defines as "a commercial establishment that regularly features sexual devices" and does not include "any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services." "Regularly" is defined as "the consistent and repeated doing of an act on an ongoing basis," and "[f]eature means to give special prominence to." Finally, "[s]exual [d]evice" is defined as

any three (3) dimensional object designed for stimulation of the male or female human genitals, anus, buttocks, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices commonly known as dildos, vibrators, penis pumps, cock rings, anal beads, butt plugs, nipple clamps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.

         The Code sets up a licensing system for sexually oriented businesses and their employees and makes it "unlawful for any person to operate a sexually oriented business in the City without a valid sexually oriented business license." The Code also sets out "spacing requirements" for sexually oriented businesses in the City. Specifically, it prohibits a sexually oriented business from (1) operating "within 100 feet of another sexually oriented business" and/or (2) operating "within 300 feet of a residential district, place of worship, park, or public library."

         In February 2013, after the enactment of the Code, Michael Morrison opened Stardust in the City, and applied for an occupational tax certificate as required under the City Code. In the occupational tax certificate, Stardust's "[d]ominant [b]usiness [a]ctivity" was described as "Retail-Smoke Shop, Tobacco; related accessories; gifts." In the application, Stardust expressly denied that it would be a sexually oriented business "as defined by the Brookhaven City Code." It is undisputed that Stardust shares a property line with the Pink Pony, an adult entertainment club and sexually oriented business, and Stardust is also within 300 feet of a residential area.

         In approximately April 2013, Stardust sent the City a letter stating that it would be adding merchandise covered under the Code to its inventory, and asked whether an amended business licence was necessary. Without waiting for the City's response, Stardust began selling items that qualified as "sexual devices" under the Code. Thereafter, in June 2013, the City began issuing citations to Stardust for violating the Code by (1) operating a sexually oriented business without a sexually oriented business license; (2) operating a sexually oriented business within 100 feet of another sexually oriented business; (3) operating a sexually oriented business within 300 feet of a residential area; and (4) "failing to identify the lines of business at the time of business registration[.]"

         In July 2014, Stardust and Morrison filed a civil complaint in DeKalb County Superior Court challenging, in relevant part, the Code on the ground that it violated the Equal Protection, Due Process, and Free Speech Clauses of both the United States Constitution and the Georgia Constitution. The City counterclaimed and sought injunctions prohibiting Stardust and Morrison from operating a sexually oriented business without a proper license and in violation of the Code's spacing requirements.[1] The City ultimately moved for summary judgment and a permanent injunction. On May 22, 2017, the DeKalb County Superior Court granted summary judgment in favor of the City and issued a permanent injunction enjoining Morrison, Stardust, and its employees "from engaging in or committing any of the following acts[:]"

a. Operating a sexual device shop without a valid sexually oriented business license issued by the City of Brookhaven.
b. Operating a sexual device shop within 100 feet of any portion of the property line of another sexually oriented business.
c. Operating a sexual device shop within 300 feet of any portion of the boundary line of a residential district, or the property line of a place of worship, park, or public library.
Measurements shall be made in a straight line without regard to intervening structures or objects. Consistent with the City's narrowing construction, Stardust will be considered a sexual device shop for purposes of this injunction only if it regularly displays on its premises at least 100 sexual devices.

(emphasis supplied). Stardust appealed to our Supreme Court. The Supreme Court affirmed pursuant to Supreme Court of Georgia Rule 59[2] without opinion on February 19, 2018.

         Case No. A18A1958: The First Contempt Proceeding

         On August 4, 2017, while Stardust's appeal of the injunction was pending in our Supreme Court, the City filed a motion seeking to hold Stardust and Morrison in criminal and civil contempt for violating the permanent injunction and requesting attorney fees.[3] The City argued that Stardust had not applied for a sexually oriented business license and had continued to operate a sexual device shop by displaying more than 100 sexual devices in its store in violation of the injunction on the following dates in 2017: May 24, May 28, June 1, June 2, July 20, July 23, and July 31. The City argued that on each of those seven dates Stardust violated all three prohibited acts set forth in the injunction, totaling 21 separate violations, and sought criminal contempt sanctions of $1, 000 per violation. The City also sought ...


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