Monday, October 22, 2007

This is a porno book; this is not; this is …

Pornography    On Friday, I wrote about the entanglement of government with religion in deciding land use cases.  Today, I write about the need to scrutinize speech in order to determine an issue concerning land use and the press.

   A challenge to the “adult bookstore” rules of Fulton County, Ga. (which includes Atlanta), was rejected on Friday by the U.S. Court of Appeals for the Eleventh Circuit.  (The case is Starship Enterprises of Atlanta, Inc. v. Fulton County, No. 06-15448, decided Oct. 19, 2007.)  The plaintiff store sought to challenge the county’s rule that imposes a special use permit requirement for any “adult bookstore,” which is defined as “having a minimum of 25 percent of its stock in trade” as sexually explicit merchandise.  (Fulton County Zoning Res. sec. 3.3.1A.)   The county concluded that the store, soon after it opened in 2004, contained more than 25 percent sexually explicit material.  The store disagreed, leading to the lawsuit.  Under the Fulton County ordinance, could a store avoid an “adult” designation simply by dumping thousands of old ordinary magazines and comic books “for sale” in the back of the store, in numbers that overwhelm the number of “adult” materials in the front of the store?  If the ratio appears to be close, what sort of fact-finding has to be undertaken:  Is each and every non-duplicative piece of merchandise to be categorized separately in calculating the ratio?

   Happily for the bookstore, its location was then included within the newly created City of Sandy Springs, which was not so tough on the store. It granted a business permit earlier this year and the store is now in operation, making the case moot. 

http://lawprofessors.typepad.com/land_use/2007/10/this-is-a-porno.html

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