Attorneys for Tokyo Valentino squared off against the City of Atlanta, arguing in federal court that an injunction against the adult superstore was “fatally defective” and that it should be allowed to remain open.
The arguments were made Wednesday during a hearing before a three-judge panel of the 11th Circuit U.S. Court of Appeals in downtown Atlanta. It's the latest chapter in a two-decade legal fight between the city and the Cheshire Bridge Road store with a sizable gay customer base.
Judge Thomas Thrash, Jr. of the U.S. District Court for the Northern District of Georgia ruled in January that Tokyo Valentino has been in violation of city ordinances since it opened in 1998. Thrash also issued an injunction prohibiting the store from operating an adult mini-motion picture theater, adult bookstore or adult entertainment business. The store's bottom level includes several video booths.
Daniel Aaronson, an attorney for Tokyo Valentino, called the injunction “overwrought, vague and unenforceable under federal law.”
“It doesn’t tell [Tokyo Valentino] what we can have,” he said. “It just says what we can’t have.”
“In reality, what can’t be used in a sexual way?” Aaronson added. As an example, he told the judges that the pen he was holding in his hand could be a sexual device to someone.
Judge Richard Tallman disagreed, saying it was “a common sense reading of the injunction.” But Judge Charles Wilson said the injunction was “rather vague.” Judge Jill Pryor also heard the case on Wednesday.
Scott Bergthold – an attorney with an extensive anti-LGBTQ track record hired by the City of Atlanta – took issue with Tokyo Valentino’s adult video booths, which have been in place since the store opened in February 1998.
“They illegally operated an adult business from the beginning,” he told the judges.
Tallman asked Bergthold why the city’s licensing inspector didn’t notice the video booths during the initial inspection.
“How did your inspector miss that? Did they not go downstairs?” he said.
Bergthold said that there were only boxes in that part of the store at the time, and that the booths hadn’t been installed yet.
Tallman asked Aaronson whether Tokyo Valentino was out of compliance when it opened in February 1998.
“I’d have to say yes/no,” Aaronson said.
“It has to be one or the other,” Tallman said.
Aaronson said that the store was in compliance according to the business license the store was initially approved for, and that's what they should be held to.
An 11th Circuit clerk told Project Q that there is no timeline for when the judges will issue their opinion.
Attorney's anti-gay record questioned
Michael Morrison, Tokyo Valentino’s founder and CEO, was confident that the judges will rule in his favor.
“I like our position. I’ve always liked it,” he told Project Q Atlanta later on Wednesday.
Morrison also pointed to Bergthold’s long anti-LGBTQ track record. Bergthold has fought against marriage equality and transgender rights, and he’s received over $200,000 in grants from a notorious anti-LGBTQ legal group.
“His sole mission is to earn [money], and to restrict human rights,” Morrison said.
Bergthold declined comment to Project Q after the hearing.
Morrison called the city’s actions “an attack on gay rights.”
“This is basically saying, ‘Don’t be gay in my neighborhood,’” he said.
The city has said it is not targeting any group in the ongoing legal battle.
The appeal to the 11th Circuit is the latest salvo in a fight that traces to Tokyo Valentino's origin. A Fulton County Superior Court judge in 1998 ruled against the city in its move to deny a permit for the business.
Thrash said the store violates a city ordinance that prohibits adult businesses from operating within 500 feet of a residential area.
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.
In January, Thrash denied the store’s constitutional claims. The judge said Tokyo Valentino had the chance to make that challenge during prior litigation between the two parties, which was resolved.
Thrash also denied the store’s free speech claims, saying the city ordinance does “not ban outright any adult businesses but merely restricts where they may be located.”