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Published Thursday, January 29, 2009 in Local

County clarifies meaning of obscenity law

By Sarah Fay Campbell

The Newnan Times-Herald

Coweta County officials have released a statement regarding the new ordinance on sexually-oriented businesses and the new obscenity ordinance approved by the Coweta County Board of Commissioners Monday.

The statement, prepared by Patricia Palmer, Coweta's public information officer, clarifies that the new obscenity law will not apply to condoms or lubricants.

The obscenity ordinance states that "it shall be unlawful for any person 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 anything of pecuniary value."

"Unlike sex toys, condoms are primarily used for contraception" and disease prevention, Palmer said in the statement. "They are not, and cannot under governing law, be subject to the obscenity ordinance."

The county's previous ordinance on sexually-oriented businesses specifically exempted condoms from being considered as sexually-oriented material. The new business ordinance only refers to pornography.

Coweta's old ordinance on sexually-oriented businesses made specific reference to items designed or marketed to stimulate the genitals. Under the old ordinance, pornographic items and sex toys were considered together for the purposes of determining whether or not a specific business qualified as a sexually-oriented business.

Comments from the county have been limited to the statement released Wednesday evening.

When asked about the county's actions, Coweta County Administrator Theron Gay said he had been advised by the county's legal counsel not to comment. Gay said that as soon as "they feel like we can talk," he would be happy to discuss the county's actions.

Commissioner Randolph Collins said that he, too, had been told not to speak officially about the actions.

The attorney representing Starship Enterprises, Alan Begner, said Tuesday that he did not think the county's business license department had actually denied the license for a planned store at Thomas Crossroads, but that the license had simply not yet been granted.

Palmer said Thursday that the business license was denied, and that written notice of the denial would be sent to the applicants.

Palmer was also asked how much the county is spending on Scott Bergthold, the Tennessee attorney who helped write the new ordinances and presented the county with documentation of studies on the negative "secondary effects" of sexually-oriented businesses. Bergthold is being paid on an hourly basis.

Palmer said she's still trying to determine the total cost and hasn't yet obtained all the necessary information.

The new ordinance on sexually-oriented businesses still uses a 25 percent threshold to determine if a business is a sexually-oriented business and triggers zoning rules. The new ordinance expands that 25 percent to include wholesale and retail value. The new ordinance also limits the adult material to occupying 500 square feet within a building, and limits the pornography to less than 2,000 items.

The new ordinance also contains a clause that bases whether or not a business is sexually oriented on what the business says about itself.

Section "h" of the definition of "adult bookstore" states that something is a sexually-oriented business if "the establishment regularly features the foregoing items (pornography) and regularly advertises or holds itself out, by using 'adult,' 'adults-only,' 'XXX,' 'sex,' 'erotic,' or substantially similar language, as an establishment that caters to adult sexual interests."

Any store that stays under those thresholds is considered a general retail store and can be located in any area that is zoned for a general retail store.

Representatives from Starship have indicated that they might sue Coweta County over the new ordinances.

If the county is sued, the costs will likely be covered by the county's public official liability insurance.

The insurance has a $25,000 deductible, said Gay.

The county's insurance agent, Rick Tamplin, said that the county's liability coverage is broad, comprehensive and substantial. Tamplin did not say what the limits of coverage are, but did state that Coweta has more insurance than many other government entities.

However, whether a particular claim will be covered or not depends on the claim.

In the case of a suit against the county, the insurance company will usually hire a lawyer who is a specialist in that particular field, Tamplin said.

But whether or not the insurance will cover a specific action depends on how the lawsuit is drawn, Tamplin said. "So until you get a lawsuit," he said, "there is no real way of knowing whether coverage is going to be triggered or not."