Coweta passes tighter obscenity ordinance

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Attorney Scott Bergthold, an expert in ordinances regulating adult business, makes a presentation Monday to the Coweta County Commissioners on the various court decisions and studies upholding regulations on sexually-oriented businesses.

By SARAH FAY CAMPBELL sarah@newnan.com The sale of sex toys, and perhaps even the sale of some condoms and lubricants, is now prohibited in Coweta County. The Coweta County Board of Commissioners unanimously voted to approve a new obscenity ordinance and a new ordinance regulating sexually-oriented businesses at a specially-called meeting Monday afternoon.
The obscenity ordinance prohibits sale or distribution of obscenity, and prohibits anyone from “knowingly” selling, or possessing with the intent to sell, “any device designed or marketed as useful primarily for the stimulation of human genital organs.” The county’s old ordinance specifically exempted condoms from being considered as a stimulation device. The new ordinance makes no such distinction, and would appear to apply to items such as ribbed condoms and various lubricants marketed as having a “warming” or “tingling” sensation. Such products are commonly available at most drug and grocery stores. The ordinance would also seem to apply to in-home “toy” parties, which are growing in popularity. A violation is punishable by up to six months in jail and/or a fine of up to $1,000. The ordinance does state that it is an “affirmative defense” to violations of the ordinance if the “act charged was done for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.” Monday’s commission meeting was announced Sunday. After calling the meeting to order, the commissioners went into a closed session to discuss litigation. After a little more than an hour, the board came back into regular session to hear a presentation from attorney Scott Bergthold of Tennessee, a nationally-known expert in writing ordinances to combat adult businesses. Attending the meeting was Kelly Rogers, president and CEO of Starship. Rogers has been working for several months to open a Starship store in Coweta near Thomas Crossroads. During that time, Rogers has repeatedly stated that he fully intended to comply with the county’s ordinance regulating sexually-oriented businesses. Rogers’ application for a business license was denied last week because the store had not yet been stocked and Rogers could not prove that the store met the ordinance. He said at the time that he would stock the store and then show that he was meeting the ordinance. Rogers said after Monday’s meeting that he had forwarded the new ordinances on to his attorney. “The biggest thing is, I’m not leaving. I’m not going away,” he said. “If we have to fight, we will fight. We will try to negotiate first; and if that doesn’t do any good, we’ll fight,” he said. “I just think it is ridiculous to spend taxpayer dollars to drag this out.” At the beginning of Monday’s meeting, only the new ordinance regulating sexually-oriented businesses was made available. That ordinance is similar to the old ordinance in that it sets the threshold to be considered a sexually-oriented business at 25 percent. However, the new ordinance only applies to pornography, that is, books, magazines, videos, pictures, and the like, depicting sexual acts. The new ordinance widens the 25 percent threshold to apply to total wholesale and retail value, and limits the sale of such items to no more than 500 square feet in a building. “Aisles and walkways used to access such items” must be included in both the 25 percent and 500 square feet calculations. A business can have no more than 2,000 such items. The ordinance also defines a sexually-oriented business as one that regularly features pornography and “regularly advertises itself 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.” Sexually-oriented businesses are allowed in Coweta, but must be in an industrially-zoned area and at least 1,000 feet from schools, parks, churches, day-care centers, and residentially-zoned property. Based on a quick reading of the sexually-oriented business ordinance, before he saw the obscenity ordinance, Rogers said that he thought he could comply with it. “I might do some adjustments, but I think I will be OK,” he said. That was before he saw the prohibition on sex toys, which are a major product line. When asked if the new laws would be enforced against every business in the county or just Starship, Bergthold, Assistant County Attorney Nathan Lee, and County Administrator Theron Gay said they did not want to comment. When pressed, Lee said that the ordinance would, of course, be enforced across the board. “We’re going to treat everybody” equally, Lee said. When asked if the ordinances would pass legal muster, Bergthold said “I’m sure the county wouldn’t pass something that wasn’t constitutional.”


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