Bill Torpy at Large: The sex toys case that only lawyers could love

The lonely sex toy shop in a largely vacant strip mall across from Sandy Springs’ City Hall has just one customer, a diminutive 20-something lady who wants a little something to spice up her sex life.

She looks a bit tentative, but the clerk behind the counter instructs her on hygienic application of the petite device and then sends her on her way.

Another soon-to-be happy customer.

A couple days earlier, the future of the shop, Inserection, was — again — in the hands of judges, this time a three-member federal appeals panel. And the city, which banned the sale of sex toys, again got a favorable ruling. But this time, the judges added a nutty twist: They said, in essence, We're going to make the wrong decision now and correct it later.

It seems like the bizarrely logical decision for a case that has lingered in courts nearly as long as Sandy Springs has been a city, which is a decade.

I’ll try to sum it up without getting too lawyerly: A three-judge panel from the 11th U.S. Circuit Court of Appeals in Atlanta told the sex-shop proprietors to bring their case back to the circuit’s full 11-judge court and they’d likely do ‘em right.

The judges said they followed precedent on a 2004 case involving a sex-toy ban in Alabama. That ruling is now 12 years old, and laws are changing fast, they said. They brought up the Supreme Court’s 2013 ruling overturning the Defense of Marriage Act and last year’s blockbuster decision to legalize gay marriage, decisions that are increasingly getting government out of our pants.

Sandy Springs incorporated in 2005 and became a libertarian’s dream and the template for a new-style local government, one that was streamlined and privatized. The leaders also incorporated a pet project of the late Eva Galambos, the city’s first mayor and spiritual leader, whose mission was to close nude dancing bars and purveyors of smut.

In the 1990s, when Sandy Springs was still a pipe dream, Galambos, sounding Churchillian in her steadfastness, urged Fulton County officials to raid Inserection. “One raid, however, will not do,” she insisted. “They need to be raided repeatedly. Parking violations must be processed over and over again.”

By 2012, the city rang up more than $700,000 in legal bills fighting nude dancing clubs and Inserection, according to the Daily Report, the local lawyer's rag. A small fortune has no doubt been billed since. The city, however, didn't necessarily feel the bite. An insurance collective operated by the Georgia Municipal Association footed most of the tab. But the insurance collective has seemingly grown weary of the endless litigation and has persuaded another appellate court to cut it loose from paying any more.

Tim Spruell, who ran for mayor in 2005 and lost to Galambos, warned at the time such ordinances would be a time and money suck. But he’s not surprised the fight has gone on so long. It’s a deep-rooted morality play, he said.

“There’s a tendency that ‘I don’t want people in my backyard doing this. I want to do what I’m doing on my property but I don’t want you doing it.’”

Nonsense, said Wendell Willard, a Republican legislator who is the city’s lawyer. He said Sandy Springs during its infancy hired private investigators to infiltrate the nude clubs and sex shops and found untoward conduct in Inserection’s private video viewing booths.

“It’s not the little toys that we’re trying to legislate; it’s what goes on in the video booth,” he said. I could almost hear his head shaking in disgust as we talked over the phone.

“We’re expressing through the ordinances what the will of citizens is,” he said. “It’s a cancer in the area. Who in the world wants to be next to that?”

In the case of Inserection, that would be a package liquor store.

I called Cary Wiggins, the lawyer who represents Inserection, and asked how the store, which had only one customer during my visit, is able to turn a profit, what with its own steep legal bills. People don’t buy dirty videotapes like they once did and the sex toys are readily available over the Internet.

“They invented coffee makers a long time ago, but they still sell $4 cups of coffee,” he reasoned. It seems people still like to come in and gawk at the array of pleasure tools.

Wiggins was surprised at Willard’s contention that closing viewing booths are the real aim of the city’s crusade.

“That has not been my experience,” he said. “The devices have largely figured in their claims. The city has never made an overture to us, ‘Get rid of the booths and we’ll let the store stay.’”

I asked Willard whether the 11th Circuit overturns its own ruling, then what? Do you go to the U.S. Supreme Court?

He seemed disinclined toward that, adding, “If they overrule it, then there are limitations to what we can do.”

I don’t know. But with this many lawyers involved, I’m sure someone will think of something.