Introduction...

Freedom of Speech is one of the most fundamental principles upon which our Country was built. Introduced by the Founding Fathers in the First Amendment of the U. S. Constitution, it contains no ambiguity. Paid for in blood, by thousands of fellow Americans who fought and died so that future generations could possess, cherish, and pass this gift on, it has been vital to the past, present and future of our Great Nation. Yet, in present days it has become one of the most controversial issues and subjects for interpretation.

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Thursday, December 20, 2007

Love Shack stays open

2007-12-20
JOHNS CREEK HERALD
Love Shack stays open

by Caron Cooper




December 27, 2007
Same headline, different year.

About this time last year, John Cornetta, owner of Love Shack, was busy removing items from his shelves to comply with a court order to close down his controversial business, but only if it is selling "a significant quantity of sexually explicit materials."

Love Shack had opened without a business license from Fulton County Nov. 29, 2006, citing a county ordinance that gives a business 30 days to obtain one, in an attempt to be grandfathered in before the city of Johns Creek was to take over licensing and zoning services in January 2007.

Rumors had been swirling that Love Shack was to be padlocked at 3 p.m. Dec. 21, 2006, if Cornetta didn't follow the court order.

Courts had previously ruled "significant" to mean more than 25 percent. So Cornetta went beyond that, reducing his sexually-related inventory to about 5 percent and replacing it with purses and other non-sexual novelties.

But Cornetta predicted the opposite.

"At 3 p.m., they are going to show up and cite me," he said to the crowd that had started to gather in front of his store that day.

Shortly after 3 p.m., a handful of Fulton County code enforcement officers, along with a U.S. federal marshal, arrived on scene. Cornetta was right – the officers measured his store and counted the amount of merchandise that was sexual in nature to determine a ratio of square footage versus sexually explicit merchandise.

He was cited again that day for not possessing a sign banner and for inappropriate zoning.

"Victory," Cornetta announced to the crowd. "We're still open."

Cornetta has maintained from the beginning that Love Shack is not an adult bookstore as defined by the county's ordinance. He says the county's determination was presumptuous and prevents Love Shack's right to free speech.

The case was in federal court last month to hear oral arguments. Cornetta is appealing the preliminary injunction ordered by the U.S. District Court, which calls for Love Shack cease operation or comply with the county's ordinances.

A ruling could take months. Cornetta's attorney, Cary Wiggins, said it could go three ways: one, court finds Cornetta's appeal moot; two, court sides with Love Shack that injunction was improper; or three, the court upholds the county's injunction.

Either way, the parties will return to district court and Judge Thomas Thrash for a decision on the remaining motions filed.

Love Shack has remained open since November 2006. In the meantime, Cornetta has taken on another opponent – Johns Creek.

The city filed a motion this summer asking Fulton County Superior Court to order Love Shack to cease operation, citing the U.S. District Court's findings that the business is operating unlawfully at its current location. The city has maintained this case is not about free speech – it is about zoning. And under the city's ordinances, Love Shack fits the definition of a sexually oriented business in a location not zoned for such. That's why the city also denied Love Shack a business license.

But Wiggins has maintained that the city sat on the Love Shack's business license application without explanation for a solid month while City Council adopted a new ordinance, and two weeks later, the city finally denied the application.

Wiggins said at the time that all of this is moot because the city's updated super-ordinance was not in place when the business application was submitted to the city. He also said that the part of the definition specific to language used in advertising is likely in violation of the First Amendment.

Love Shack then sued the city, naming specific city staff and members of the city's Zoning Board of Appeals, for denying the adult business's applications for sign and banner permits.

The Love Shack's petition to Fulton County Superior Court says the city staff's denial is based on "arbitrary criteria" and asks the court to declare that decision as beyond the scope of power. Neither the city's sign ordinance nor its zoning ordinance states a business license as prerequisite for a sign or banner permit.

The city disagrees.

"What's the logic of issuing a sign to a business that does not have a license and is in essence operating illegally," said Johns Creek Mayor Mike Bodker.

The city must answer the petition within 30 calendar days from Nov. 19, the date the city was served, but is not uncommon for parties to request more time.

And so Johns Creek residents will continue to wait into 2008 to see if the New Year will bring any results.





http://www.northfulton.com/Articles-i-2007-12-20-168927.112113_Love_Shack_stays_open.html

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