Brookhaven, GA, March 13, 2017 – by Trey Benton – A legal battle that has been going on for some four years now in the City of Brookhaven, has attorneys fees nearly hitting the $300,000 mark – and it appears those costs will continue to rise. This fight between Brookhaven and Stardust, a business described as a retail store “that sells adult toys and novelty products; party supplies, and a complete line of smoking accessories”, began soon after the City incorporated in 2012. It’s been going ever since.
Shortly after Brookhaven’s first day “in business”, Stardust opened their business. After about two months in operation, the City says they were notified Stardust would also begin selling items described as “sexual devices” in Brookhaven’s Sexually Oriented Business (SOB) Ordinance. Before Brookhaven had a chance to respond to Stardust’s notice, the City says “sexual devices” began popping up throughout the store’s sales floor.
Because of those actions, the City says Stardust therefore began operating a Sexually Oriented Business, specifically a “sexual device shop,” in “violation of multiple laws,” including City ordinances prohibiting a sexually oriented business at that location because of its proximity to neighborhoods and a strip club. Brookhaven’s code enforcement officers issued Stardust more than 500 hundred citations in 2013 alone. Since then, more than 300 more have been issued.
The primary citations issued to Stardust are for the following violations: (1) operating a business without a license; (2) operating an SOB within 100 feet of another SOB; (3) operating an SOB within 300 feet of a residential district; and (4) failing to identify the lines of business at the time of business registration.
According to Court records, in February of 2013, Mr. Angel Candelaria on behalf of Stardust, filed for an occupational tax certificate – a business license. At the time of business registration, the process requires an individual seeking to do business in the City, to tell the finance department the “line or lines of business” the business will conduct. Stardust’s application listed its primary line of business as “Retail—Smoke Shop, Tobacco; related accessories; gifts.”
Court records state Mr. Candelaria circled “no” in response to the question on the application: “Will your business be an adult entertainment establishment (sexually oriented business) as defined by the Brookhaven City Code or does (will) it offer any adult entertainment?”
Chattanooga Attorney, Scott Bergthold, who essentially single-handedly wrote Brookhaven’s SOB ordinance, has been paid approximately $294,004 to defend the City in the Stardust case. The City contends Stardust is in violation of their occupation tax ordinance as well as its S.O.B. ordinance, which was previously upheld by the Superior Court in Pink Pony v. Brookhaven, which Bergthold also handled for the City. Stardust owner Michael Morrison contends the city has harassed him and his employees by claiming his business is a Sexually Oriented business.
The City’s Zoning Ordinance in the SOB section defines a Sexual Device Shop as “a commercial establishment that regularly features sexual devices. This definition shall not be construed to include any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services”. (See https://www.municode.com/library/ga/brookhaven/codes/code_of_ordinances?nodeId=PTIICOOR_CH15LIPEBURE_ARTXIISEORBU_S15-497DE for the definition of sexual devices and other SOB definitions)
Stardust filed a lawsuit in DeKalb County Superior Court claiming the City’s ordinances violate the State and Federal constitutions. Stardust also suit in Federal Court after the City denied Stardust’s sign application. There is also a case in Brookhaven’s Municipal Court that revolves around more than 880 citations Stardust has been issued for operational violations.
Federal Court Judge Eleanor Ross found back in September of 2016 in favor of Brookhaven. That decision has been appealed by Stardust.