Cornetta Waits for Decision

June 18, 2008

Johns Creek’s only adult video store will stay open at least another month as the city weighs a mound of evidence presented at a hearing on whether the business deserves a regular business license.For four hours April 2, attorneys for the city and for John Cornetta, owner of the controversial Love Shack, presented their cases in a public hearing before Gregory Jay, the city’s hired public hearing officer for business license and occupation tax appeals.

Typically, the hearing officer would have five days to render the written decision, however both sides waived that requirement due to the amount of material and the length of the hearing.

Instead, council must submit “proposed findings of fact and conclusions of law” by April 16, and Jay must render a written decision by April 20.

The city called five witnesses to the stand on its behalf, including Buddy Jones, a private investigator, Collin Horace, a GIS Developer Analyst for Johns Creek, Johns Creek Planning and Zoning Administrator Justin Kirouac, chief of code enforcement Reggie Miller, and city revenue supervisor Kevin Ritter.

“The testimony today clearly shows that the sexually oriented business has been operating in the city of Johns Creek illegally for a number of months,” said Scott Bergthold, attorney representing the city in the Love Shack case.

Bergthold is an attorney with a national reputation for specializing in zoning cases involving sexually oriented businesses and wrote the city’s ordinance governing them.

In his closing statement, Bergthold maintained that the Love Shack meets the definition of a sexually oriented business in multiple ways, including evidence that suggests:

• More than 25 percent of the floor space is dedicated to adult items.

• More than 500 square feet of the floor space is dedicated to adult items.

• The adult items are offered in quantities more than 1,000.

• The store limits access to adults only.

• The Love Shack regularly advertises or holds itself out as adult, XXX, sex, erotic or other similar language.

Bergthold said the store is operating illegally due to its location within 1,000 feet of a school or residence. He also dismissed the “for novelty use only” stickers that are meant to portray sex toys as mere gag gifts. They are what they appear to be, Bergthold said.

Cornetta’s attorney Cary Wiggins said all of this is moot, because the updated super-ordinance was not in place when the business application was submitted.

“My client is entitled to be considered under the ordinance that was in place at that time,” said Wiggins, referencing the ordinance that was adopted on Dec. 20, which included no contemplation for denial of a business license.

The Dec. 20 ordinance was still in place at the time the Love Shack’s business license was submitted on Jan. 23.

Wiggins pointed out the city was a month away from adopting the new ordinance, citing a Georgia case that said the business is entitled to be considered under the ordinance that was in place at the time of the application.

“When they did amend the code on Feb. 26, low and behold, there is provision in there. All three counts we are here for today were not in the old code. They are only in the new code,” said Wiggins.

Wiggins maintained that the city sat on the Love Shack’s business license application without explanation for a solid month while they adopted the new ordinance, and two weeks later the city then denied the application.

“You cannot apply that code to my client when he applied well before, a month before. The reason we are here today is based on three provisions, C6, C7 and C9, that are in the new code and were not in the old code. The denial itself is a creature of the new code,” said Wiggins.

Wiggins also believes that the part of the definition specific to language used in advertising is likely in violation of the First Amendment.

“That provision is not worth the ink or paper it was written on,” said Wiggins.

Wiggins also added the Fulton County case is still pending in an appellate court.

Bergthold then pointed out the Love Shack did not apply for a business license within 30 days of being open for business, to which Wiggins spouted out “moratorium.”

Johns Creek enacted a 30-day moratorium Nov. 30, 2006, on applications for business and alcohol licenses.

Council members then voted Dec. 20 to extend the business license moratorium. The moratorium was finally lifted during an executive session Jan. 2.
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