No decision in Starship appeal hearing

Thu, 04/16/2009 - 3:37pm
By: Ben Nelms

No decision in Starship appeal hearing

It was strikingly similar to a court trial, which is what it may well become before all is said and done. The appeal of the denial of a business license by Kelly Rogers’ Starship Adult Novelties & Gifts in front of Coweta County Tax Rate Review and Appeals Committee April 13 ended as it began, with only questions and no resolution and without the committee forwarding a “Yea” or “Nay” recommendation to county commissioners. Another meeting will be scheduled to continue the matter.

Like any trial, attorneys representing both Coweta County and Starship made what were essentially opening remarks, presented evidence, called and cross examined witnesses and made closing arguments.

The proceedings in the nearly 5-hour appeal hearing revolved around the Feb. 6 denial of Starship’s business license by Business Director Director Eva Wagner and Starship’s contention that the decision had been made by Jan. 20 when more than 300 residents packed the commission chambers, ready to demand that commissioners face litigation rather than give in to having Starship operate in the Thomas Crossroads area. It was at the beginning of the Jan. 20 meeting, and prior to public comments, that Commissioner Rodney Brooks read a prepared statement that altered the course of Rogers’ intentions to open his business.

“Based on what (county staff) have seen, and what they have been told, staff believes the proposed store is a sexually-oriented business and, therefore, cannot operate at the proposed location without rezoning,” Brooks said. “Our county staff has informed the board that they will be denying this business license application at this time.”

Before the Jan. 20 meeting ended, commissioners said they would deny the license because Starship had been determined to be a sexually-oriented business that is not permitted in the commercial area. Rogers said after the meeting he disagreed with the decision.

Starship attorney Alan Begner at the April 13 appeal hearing contended that the decision to deny the license had been made no later than Jan. 20, even though he and Rogers met with Wagner Jan. 15 and were not told of any issues that might prevent the store’s opening. Starship has done everything Coweta County required and should be allowed a business license, Begner said repeatedly.

Central to the denial was the comparison by the county’s consultant attorney, Scott Bergthold, that trips made to other Starship locations by private investigators Frank Copus and Jerry Brown and by Wagner and county attorney Jerry Ann Conner showed that those locations contained as much as 40 percent of inventory consisting of sexually-oriented items. Those percentages clearly exceeded the 25 percent maximum stipulated in the old and new Coweta ordinances. Bergthold said that, in some cases, Starship was violating the ordinances of the counties in which those stores were located.

In his response, both addressing the committee and in cross examinations, Begner said the company continues to insist that it will comply with all Coweta’s requirements. He added that, regardless Bergthold’s comments, Starship’s inventory percentages have been questioned only one time at one location and that the company has not been cited as having violated the ordinances of any county in which it operates.

By the end of the lengthy hearing, committee members appeared to find it problematic to follow the county ordinance (Sec. 18-43) that governs its activities. Chairman Woodie Wood agreed that no decision could be reached and opted, instead, to have committee members review the various exhibits supplied by attorneys and the submission of findings to be provided by both attorneys. The follow-up hearing will be re-scheduled.

The issue evolved to its current status after commissioners on Jan. 26 adopted ordinances on sexually-oriented businesses and obscenity. Rogers in response said that from the beginning of the process in late 2008 he had complied with county ordinances, including having less than 25 percent sexually-oriented merchandise, and should be granted a license to operate.

New ordinances notwithstanding, both Rogers and Begner maintained that Starship is a store that will sell general merchandise that will carry some adult items and that it should be granted a business license.

The new ordinance on sexually-oriented businesses defines such a business as “an adult bookstore or adult video store,” and “adult cabaret,” and “adult motion picture theater” or a “semi-nude model studio.” The sexually-oriented business ordinance also cites numerous instances of case law where “adult bookstores and adult video stores (manipulated) their inventory and/or business practices to avoid regulation while retaining their ‘essentially’ adult nature.”

The obscenity ordinance is a first in Coweta. It specifies that it is unlawful to “knowingly distribute, possess with intent to distribute or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any pecuniary value.”

Commenting on the passage of the sexually-oriented business ordinance in a Jan. 28 press release, the county said it replaces the former ordinance. One of the goals of the new ordinance is to “regulate... sexually oriented business through a narrowly tailored ordinance designed to serve the substantial government interest in preventing the negative secondary effects of sexually oriented businesses.”

The previous county ordinance stated that for a business selling adult-oriented items to be located in a zoning district other than Industrial it must have less than 25 percent of its business that includes those items. Rogers told The Citizen in December that his Thomas Crossroads location would comply with the ordinance.

But county attorney Nathan Lee in January said county staff had determined that adult-oriented merchandise would constitute more than the limit allowed by the ordinance.

“Based upon what his license said, (county staff) investigated, spoke with the owners and they believe that what they’ve been told and what they’ve seen, once it’s stocked, it’s going to cross the 25 percent threshold,” Lee said. “(County staff) have gone to other stores that were represented to be 25 percent stores.”

On several occasions during the April 13 hearing Bergthold referenced the possibility of the matter being eventually settled in court, rather than by the county commission. His comments mirrored those of Rogers on earlier occasions when he said he would take the issue to its ultimate conclusion.

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matt.barnes's picture
Submitted by matt.barnes on Tue, 05/05/2009 - 9:45am.

Did Starship win their battle? I saw them moving product into their store this morning.

Submitted by Cobra on Tue, 05/05/2009 - 1:59pm.

Are you sure he wasn't moving stuff OUT of the store?

NUK_1's picture
Submitted by NUK_1 on Tue, 05/05/2009 - 10:39am.

Considering the after-the-fact attempts by the county to keep Starship from opening, I guess next step is pass a law banning any business with the word "Starship" in it.

The idea that the county can deny Starship because they SUSPECT that more than 25% of the store's products will be adult WHEN they open is just stupid. "Well shucks, we done looked at other Starship stores and they done got more than 25% pornygraphic stuff so I reckon they'll have more than 25% adult here too. Spit. "Even dumber are the people who applaud this action by the county even if it results in wasting time and money on a court fight the county has no chance of winning. Oh, but they are taking a STAND and FIGHTING. Yeah, whatever.

There are ways to regulate and zone places like Starship that make it much more appealing for the owners to open elsewhere. Then there is the Coweta approach that is a surefire way to lose and look really goofy at the same time, not to mention plenty of free PR for some business they don't want around.

Submitted by Cobra on Tue, 05/05/2009 - 1:39pm.

No chance of winning? Keep your eye on this one, may be surprised.

Submitted by Dondol on Tue, 05/05/2009 - 2:42pm.

Starship will win, they have in every county that they have tried. Besides you should be glad something is going into the old hardware store, looks like the new one that they built is closed already.
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