The City of Atlanta fired another salvo against Tokyo Valentino, asking a federal court to issue a permanent injunction against the adult superstore — which would shut it down — and put an end to a 20-year legal saga.
The city filed the motion in the U.S. District Court for the Northern District of Georgia in September. The filing came three months after the 11th Circuit U.S. Court of Appeals reversed the district court’s ruling that would have shut the business down. That ruling also restarted a constitutional challenge to the city’s adult entertainment ordinance.
It’s the latest in a legal battle that has dragged on between the city and the Cheshire Bridge Road business since 1998. And it has the store’s founder claiming that a ruling against the city will render its adult ordinance unenforceable, leading to “strip clubs on every corner.”
“Tokyo Valentino is an adult business illegally operating in a location that does not allow adult businesses,” attorneys for the city argued in the first line of the latest motion.
The city argued in the motion that it has already won or is entitled to summary judgment on all of Tokyo Valentino’s claims and counterclaims. The city also argued against the store’s claims that the city’s definition of “adult business” is overbroad.
“With respect to actual fact, [Tokyo Valentino] points to nothing in the record indicating that the city has applied its adult business zoning ordinance to anybody besides itself — let alone to anybody who is not operating an adult business as one would understand the ordinary meaning of the term,” according to the motion.
The city also claimed that Tokyo Valentino is in violation of the adult business ordinance because its adult video booths have been there since the store opened.
“[Tokyo Valentino] elected not to use the property and operate its business in accordance with the permit issued in December 1997,” according to the motion. “Having illegally operated the adult video booths from the inception of Tokyo Valentino’s business in February 1998, [Tokyo Valentino] never established a lawful nonconforming use. The ‘use’ of the premises has been unlawful since the day the business opened.”
The city claimed that “bondage gear and sexual furniture,” along with the video booths, render the store an adult business. The city also claimed that a permanent injunction is needed “to prevent the negative secondary effects of adult business.”
The city is also asking for summary judgment on Tokyo Valentino’s claim that the city should pay attorneys’ fees.
A city spokesperson did not respond to Project Q’s request for comment on the case.
A Fulton County Superior Court judge ruled against the city in its move to deny a permit for the business in 1998. All was quiet between both parties until 2014, when Inserection renovated and rebranded into Tokyo Valentino. The permit application prompted the city to rule that the business’s video booths were a code violation and needed to be removed.
Tokyo Valentino sued the city and its zoning board in 2015, claiming the ordinance was a violation of its Fourth Amendment rights. The city countersued, and both parties moved for summary judgement. The district court denied the store’s constitutional claims and issued the injunction in 2018. Tokyo Valentino’s attorneys then appealed the decision to the 11th Circuit, which ruled in June.
‘All else is smoke and mirrors’
Attorneys for Tokyo Valentino filed a response to the city’s motion in October, claiming its arguments are “fundamentally flawed.”
Tokyo Valentino’s attorneys claimed that the city only devoted a portion of its motion to the store’s claims that the adult business ordinance is overbroad.
“The court should not be fooled or distracted by prurient descriptions of ‘sexual bondage and domination furniture,” according to the response. “Plaintiffs present a facial overbreadth challenge and call upon the court to apply the abundant case law supporting this meritorious claim.”
The store’s attorneys dismissed the city’s claims about the negative effects of adult businesses.
“Regulation of sexually explicit speech and erotic dance is permitted under some circumstances because the Supreme Court has determined that a focus on ameliorating ‘adverse secondary effects’ justifies what would otherwise amount to a content-based restriction on speech,” according to the response.
The attorneys also argued that the city is not entitled to an injunction against the store no matter what the court rules on the overbreadth claim.
“At most, the city might obtain a narrow injunction against the operation of the videoplexx and social gathering space which were not part of the original use,” according to the response. “However, that injunction could not reach the original retail store selling adult videos and novelties.”
The store’s attorneys also warned that a ruling against the city will make its entire adult ordinance unenforceable.
“It is no secret that this case was remanded to this court to determine whether Atlanta’s ordinance regulating the location of adult businesses is unconstitutionally overbroad,” according to the response. “All else is smoke and mirrors.”
Michael Morrison, Tokyo Valentino’s founder and CEO, reiterated this point in an interview with Project Q Atlanta on Tuesday.
“The entire adult entertainment ordinance is in danger of being struck down,” he said. “If we lose, the Cheshire Bridge location might have to change its format. But if we win, you’re going to see strip clubs on every corner.”
Anti-LGBTQ attorney replaced
The City of Atlanta hired new outside counsel for the Tokyo Valentino case after dumping an anti-LGBTQ attorney following the 11th Circuit ruling in June.
The city hired Matthew Calvert, a partner at the Atlanta office of Hunton Andrews Kurth. The firm has over 1,000 lawyers in offices worldwide, according to its website. Calvert is joined by Laura Wagner, an associate at the firm. Two attorneys from the city’s law department are also on the case.
Calvert did not respond to Project Q’s requests for comment on the case.
Calvert and Wagner replaced Scott Bergthold, whose long record of working against LGBTQ causes was documented by Project Q in May. The city paid Bergthold about $267,000 between November 2016 and December 2018 for his work on the Tokyo Valentino case.