On appeal, Stardust raised a number of claims, one being that the Brookhaven ordinance infringed on the store’s free speech rights to display sex products.
Judge Jill Pryor, who wrote the 11th Circuit opinion issued on Friday, said a code such as Brookhaven’s can comply with the First Amendment if it is designed to serve a substantial government interest and leaves open alternate avenues for a display of sex products.
Brookhaven has a legitimate interest in regulating the negative, secondary effects of adult businesses, Pryor said. Also, the ordinance provides the necessary alternative avenues because Brookhaven has identified 73 other sites within its city limits where Stardust can operate.
The ordinance, Pryor added, “neither bans the sale or use of sexual devices in the city nor impedes any individual’s ability to engage in private, consensual sexual activity.”
Michael Morrison, who manages Stardust, criticized the ruling. The store mostly sells smoking materials and clothing for dancers, and sex toys are a “very small part” of its product line, he said.
“We fully complied with Brookhaven’s zoning code,” Morrison said. “The city changed the code after we had opened only to hurt us in a purpose-driven move.”
Brookhaven City Attorney Chris Balch said the city is pleased with the 11th Circuit’s ruling.
“The appellate court specifically held that the city’s regulation of establishments like Stardust ‘furthers the city’s interest in avoiding the secondary effects of adult businesses,’” he said. “We look forward to seeing Stardust’s full compliance with the city’s ordinances.”