It’s the U.S. Supreme Court or bust for three Sandy Springs adult businesses doing legal battle with the city after a federal court denied a review of their lawsuit Nov. 27, according to the city.
“We are obviously pleased that the court system continues to support our position,” said City Attorney Dan Lee in a press release, after the U.S. 11th Circuit Court of Appeals denied to have all of its judges review a previous ruling, favorable to the city, made by a three-judge panel.
Cary Wiggins, an attorney for the adult businesses, said they will indeed petition the Supreme Court for review of the case, as well as a separate but related lawsuit about the city’s former ban on sex-toy sales.
“We believe, and the three-judge panel has effectively told us, that the primary legal questions presented in this case are ones that should be answered by the Supreme Court. So, yes, the plaintiffs will be filing a petition for writ of certiorari,” Wiggins said, using the official legal jargon for requesting a court review.
For over a decade, the bookstore Inserection and the strip clubs Flashers and Mardi Gras have been fighting city laws that would force them to close or move by banning alcohol sales and tightening zoning restrictions. The city has said it has no problem with adult entertainment per se, but argues that it produces crime as a side effect that needs to be controlled. The businesses say the city’s laws are motivated by an unconstitutional bias against their work and intended to make it impossible for them to operate.
The city has repeatedly won in court – but only after repeatedly loosening its zoning restrictions to allow adult businesses in more locations. The most recent win was in August before the three-judge panel of the Atlanta-based 11th Circuit Court. Wiggins petitioned the court for a re-hearing by all of the court’s judges, and that is the review that was denied last month.
The last appeal option is the Supreme Court, which chooses which cases it hears and accepts only a tiny percentage of those submitted. The businesses have several months to decide on the appeal, according to the city.
Inserection and two residents are involved in a separate but related lawsuit where Supreme Court review is also the final appeal option. That case targets another city law that banned sex-toy sales. Earlier this year, the city quietly deleted the law when it became apparent that the 11th Circuit Court was going to rule it unconstitutional. However, the legal battle has continued over whether Inserection is entitled to damages for living under the law for years.
“As for the sexual devices case, a petition for writ of certiorari to the Supreme Court is in the works,” Wiggins said.
All of the city laws in the controversy were proposed by Scott Bergthold, a Tennessee attorney who specializes in municipal laws cracking down on sexually oriented businesses.