Brookhaven’s sex shop ordinance upheld by appeals court

The federal appeals court in Atlanta has upheld restrictions on sex toy shops in Brookhaven, granting the city a victory in a protracted legal battle.

In a unanimous decision, a three-judge panel of the 11th U.S. Circuit Court of Appeals rejected claims by the Stardust store that the city’s ordinance is unconstitutional.

The restrictions, adopted in 2013, make it unlawful to operate a sexually oriented business within 100 feet of another sexually oriented business or within 300 feet of a residential district, a place of worship, a park or a public library. Brookhaven says this leaves 73 locations where a sex toy shop such as Stardust can do business.

But Stardust’s current location on Buford Highway does not comply with the ordinance because the shop is across the street from a residential area and next to the Pink Pony strip club. The Pink Pony, which began operating in 1990 and previously reached a settlement agreement with Brookhaven, pays for additional law enforcement to patrol the area around its building, the ruling noted.

Stardust began selling sex devices at its Buford Highway location in April 2013. In early 2014, the city brought a 255-count accusation against Stardust for violating the city’s code. The store countered by filing a federal lawsuit against the city later that year. In October 2016, U.S. District Judge Eleanor Ross ruled in favor of the city and dismissed Stardust’s lawsuit.

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.”

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