Court hearing Jan. 30 in Starship appeal
by Sarah Fay Campbell
A court hearing has been scheduled for an appeal of the local Starship store. The appeal is in response to the county’s allegation citing the store as being in violation of Coweta's obscenity ordinance.
The appeal hearing is scheduled on Jan. 30 at 1 p.m. in Coweta County Superior Court, before Judge Qullian Baldwin, at the Justice Center on Greenville Street.
Recently, the Starship store on Highway 34 East near Thomas Crossroads was issued a citation for violating the obscenity ordinance. The ordinance forbids the sale of sex toys, unless the sale is made for a "bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose."
An initial hearing on the ordinance violation was held in late summer before Coweta Chief Magistrate Jim Stripling.
After testimony from the county's code enforcement officer, Tim Shelnutt, and Terah Capell, Starship store manager, Stripling ruled that Starship had violated the ordinance and ordered a fine of $205.
Starship Attorney Allen Begner filed an appeal shortly thereafter. The appeal, filed as a writ of certiorari, is to be heard in Coweta Superior Court.
The filing of the appeal allows Starship to remain in operation until the appeal is decided.
In the appeal, Starship argues the county failed to prove its case.
Coweta argues evidence was provided in support of the violation.
Starship was specifically charged with selling items in violation of the county’s obscenity ordinance, subsequently raising an “affirmative defense,” meaning the store maintains the sale of items was made under one of the already approved purposes. The prosecution must then disprove the claim beyond a reasonable doubt.
Begner argued during the hearing and in the appeal, that the county did not prove its case — implying the county did not provide reasonable doubt that the local store made sales of items for unapproved purposes. Begner argues Shelnutt, in fact, saw no items being sold and did not buy any himself.
Capell testified that the store has definitely sold the items for medical uses, such as prostate massage and Kegel exercises, and that if anyone indicates they want to buy the items for a non-allowed use, "we have to deny the sale."
Capell testified the staff does not ask customers why they want to purchase items. However, all such items are marked with a sticker indicating they are only for approved uses, and each receipt is stamped with the same language.
In Coweta's response to Starship's brief, Coweta County Attorney Nathan Lee argues that "ample evidence was presented" that Starship violated the obscenity ordinance.
More may be at stake in this case than simply a $205 fine.
When Coweta Superior Court Judge Jack Kirby ruled in April 2010 that Coweta County had to issue Starship a business license, the order stipulated that the store had to comply with "the county ordinances regarding the operation of a commercial business in Coweta County as of Jan. 26, 2009.”
That would appear to include not only the county's ordinance regulating "sexually oriented businesses" but also the obscenity ordinance.
The local Starship store only opened after a protracted legal battle that began in the fall of 2008, when Starship representatives sent Coweta County a letter to let county officials know the store was planned.
The store operates as a general merchandise store that does not trigger the extensive zoning restrictions on sexually oriented businesses. Starship President and CEO Kelly Rogers obtained a building permit and sign permit in November 2008, and set to work remodeling the building. After receiving a certificate of occupancy following the renovations, Rogers applied for a business license.
On Jan. 20, a crowd showed up at the regularly scheduled county commission meeting to protest Starship. At the meeting, Commissioner Rodney Brooks read a statement, telling those in attendance that business license staff had determined that Starship would be a sexually oriented business and that the license would be denied.
On Jan. 26, the commissioners held a called meeting and approved the obscenity ordinance and a stricter sexually oriented business ordinance.
The written denial of the business license, by Eva Wagner, then the county's business license director, was dated Feb. 6 and cited the two new ordinances as the basis for denial.
Starship appealed to the Coweta Business Occupation Tax Rate Review and Appeals Committee.
After a hearing, several meetings and extensive discussion, the committee voted 4-1 to recommend that the county commissioners overrule Wagner's decision, and grant the license — if Starship came into compliance with the Jan. 26 ordinances.
The committee also approved a list of "findings of fact."
On June 16, 2009, the Coweta County Board of Commissioners "issued an order affirming the [Wagner's] decision to deny issuance" of the license, going against the recommendations of the committee.
Starship then sued and, nearly a year later, won its license. The store opened in November 2010.