U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

No Champagne in Sandy Springs Strip Clubs, But You Can Buy Sex Toys

There once was a plaintiff from Sandy Springs,
Whose case was about some interesting things,
But as they got their sex toys,
Sad still were the boys,
That they couldn't drink at the strip club.

In a pair of, aptly called, provocative appeals, befitting of a blogger to write a limerick, Sandy Springs, Georgia, plaintiffs, Flannigan Enterprises, Fantastic Visuals, as well as some others in the local adult entertainment industry, are nursing their wounds.

One case centered around the Sandy Springs ban on the sale of sex toys, while the other case focused on the ban on the consumption of alcohol in businesses that have nude, or partially nude, live entertainment. While Flannigan and company lost both cases, and the subsequent appeals, the plaintiffs can rejoice in the fact that Sandy Springs at least repealed the sex toy ban on their own accord.

Legislating Alcohol at Adult Entertainment

As the Eleventh Circuit Court of Appeals noted in the alcohol at adult entertainment venues case, there is a long legislative history on the subject. The case dates back all the way to 1997, when the county where Sandy Springs was located decided to prohibit the sale of alcohol in certain adult entertainment venues. The venues prevailed in that litigation due to the fact that the legislative record failed to provide adequate support for the content neutral regulation being an effective way to further the county's alleged compelling interests.

However, in a second attempt at passing a similar law, when the Sandy Springs became its own city in 2005, it fixed the county's prior deficiencies. The appellate court's decision here affirmed that, again.

Legislating Out of Court

In response to the lawsuit claiming a constitutional violation due to the ban on the sale of sex toys, the city of Sandy Springs actually repealed the law. In doing so, the court dismissed as moot the issue of whether the plaintiffs were entitled to proceed, or even entitled to damages. Plaintiffs argued that the city could just re-enact the law, and usually voluntary cessation won't legally moot a case if the same offending conduct can be resumed after the case concludes. On appeal, nevertheless, the Eleventh Circuit affirmed, and found that there were adequate assurances that Sandy Springs would not just pass the same law after the case was dismissed.

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