JOHNS CREEK: Legal fight with adult business costly, ongoing

By Doug Nurse
The Atlanta Journal-Constitution
Sunday, January 04, 2009

To take on its lone adult business, Johns Creek hired a legal sharpshooter who drafted a no-loophole ordinance that made the store clean up its act. Ultimately the store, the Love Shack, closed.
But the fight wasn’t cheap. And it’s not over.
Since hiring attorney Scott Bergthold of Chattanooga in 2006, the city has paid him $238,000, at $250 an hour. City Attorney Bill Riley is paid $150 an hour for litigation. The city typically budgets $700,000 or so a year for legal expenses. It has paid another firm about $61,100 in Love Shack litigation fees.
Mayor Mike Bodker makes no apologies for the expense.
“We have laws on the books that say this business, because it’s an adult business, cannot operate in this zoning district,” Bodker said. “Short of repealing that law, we should enforce it.”
The owner of the Love Shack, John Cornetta, is fighting the city in Superior Court, the state Supreme Court and a federal appellate court. So far, the city has mostly prevailed. But three related cases linger in the courts.
Bergthold, who has a national anti-adult-business legal practice, said he brings experience and expertise to a field that is constantly changing and that can be extremely tricky to navigate because of its constitutional issues.
“We’ve seen a lot of the strategies and tactics and legal theories that have been advanced against municipal ordinances across the country,” he said. “We see industry tactics other lawyers wouldn’t see unless they practiced it extensively.”
Cornetta sounded incredulous upon hearing the price tag for the legal fight against him.
“Are you kidding?” he asked. He estimated he has spent $110,000 on legal fees. “That’s shocking. But then they did hire the biggest Bible-thumper money could buy.”
Bergthold’s clients range from Bartow County to Clark County, Nev. —- home to Las Vegas —- from Daytona Beach, Fla., to Pasadena, Calif., and points in between.
Another reason the bill is so high, Bodker said, is because there are three related cases in various stages of trial.
Chuck Thompson, executive director of the International Municipal Lawyers Association, said adult businesses try to delay a final decision because in the meantime, they get to stay open and make money.
Thompson said he wasn’t surprised at the $238,000 bill.
“That sounds pretty typical,” he said. “It’s an expensive proposition. It’s very time-intensive.”
Bergthold has been advising the city since its birth on Dec. 1, 2006. In the first hour of the city’s first City Council meeting, Bergthold gave a briefing on how to respond to the Love Shack, which had opened a few days earlier.
Technically, the battle was over zoning. The city maintained the Love Shack was an adult business in an area not zoned for adult businesses. The city argued the Love Shack needed to close or clean up its act.
Bergthold’s strategy was to close every loophole that adult businesses had ever used.
He drafted an ordinance that defined adult businesses by percentage and volume, sales, and floor space for adult material.
Many residents wanted the Love Shack to move, or better yet to close. A town hall meeting soon after the city was launched drew more than 1,000 people. The store was shuttered in September.
Kim Tye, a Johns Creek resident and opponent of the Love Shack, said Bergthold has been worth the money.
“I hated it so much,” she said. “It could have set a precedent. If we let him [Cornetta] get away with it, then there wouldn’t have been any recourse for any other type of things. It’s a little expensive, but it was something that had to be done.”
Sharon Simon, 39, echoed Tye.
“I think it was money well spent,” she said. “It’s in the face of our children. The $238,000 doesn’t bother me a bit.”