Cobb County has filed a motion to enjoin the Tokyo Valentino adult retail store in East Cobb from doing business while local and federal court cases continue.
On Feb. 4, Scott Bergthold, a Chattanooga attorney hired by Cobb County to handle the Tokyo Valentino matter, filed a motion for an interlocutory injunction, seeking to close the store on three grounds.
The county says Tokyo Valentino is currently open without a general business license and without a sexually oriented business license, and is operating an adult business “in a zone where it is not allowed.”
Bergthold said in his motion that Tokyo Valentino has not applied for a general business license or a sexually oriented business license for 2021, and the current General Commercial category zoning where the store is located does not include and adult business.
The Cobb Board of Commissioners voted in October to permanently revoke Tokyo Valentino’s business license, a decision that was appealed.
The store has remained open pending that appeal, and in November, days after the county legally sought to close the store, Tokyo Valentino filed a lawsuit against the county in U.S. District Court in Atlanta.
During a contentious due-cause hearing, the county argued that the Tokyo Valentino store, which opened in June, was issued a business license in March under false pretenses.
The company that applied for the license, 1290 Clothing Co., LLC, indicated on its application that it would be for a general retail store at 1290 Johnson Ferry Road, in the former Mattress Firm location.
But the county argued that after the store opened as Tokyo Valentino, a vast majority of the inventory consisted of lotions and lubes, sex toys and smoke products not included on the application.
Only 14 percent of the merchandise, mostly adult lingerie, was clothing, according to evidence presented at the due-cause hearing.
Commissioners voted 5-0 to revoke the business license, and Tokyo Valentino’s lawsuit includes each of them, including former chairman Mike Boyce and retired commissioner Bob Ott of East Cobb, among the defendants.
Cobb County Attorney Bill Rowling told East Cobb News through county spokesman Ross Cavitt this week that “the filing speaks for itself,” and declined further comment.
Cavitt said a hearing for the injunction motion has not been scheduled (you can read it here), and it wasn’t clear when that might take place given COVID-19 restrictions that have delayed court proceedings.
“They have filed in federal court, we have filed in Cobb Superior Court where we believe the case belongs, so there will eventually be a determination where the venue should reside,” Cavitt said.
In a dismissal motion filed in Cobb Superior Court Feb. 1, Tokyo Valentino attorney Cary Wiggins said Cobb County “is rather transparently attempting to prevent Tokyo from litigating a pending case in Tokyo’s chosen forum, i.e., federal court.
“And because the County is attempting to punish Tokyo’s exercise of constitutional rights of petition and free speech by tying up its resources and driving up the costs of litigation,” the Cobb court also should “strike the complaint.”
When contacted by East Cobb News for comment this week, Wiggins said in reference to the East Cobb Tokyo Valentino location that “the store is a high-end, couples boutique. It’s a well-run operation, and a good corporate citizen. My client is disappointed that the county is spending a great deal of money trying to shut it down.”
In that Feb. 4 motion, Bergthold asked for an injunction “because Tokyo’s illegal activity is systemic, continual and contrary to governing law.
“Denying injunctive relief,” the motion states, “would appear to ratify Tokyo’s unlawful business practices and embolden them to operate in violation of the law.”
In late May, East Cobb News first reported that a business named 1290 Clothing Co. had received a business license amid concerns that it would become a sex shop instead.
The store didn’t need rezoning as a clothing retail business to open in the general commercial (GC) category under the Cobb County Code.
The Cobb County legal dispute is the latest for Tokyo Valentino founder Michael Morrison, who has taken several metro Atlanta jurisdictions to court over his adult retail businesses.
Bergthold, who has been hired by local governments across the country in seeking to restrict adult businesses, also was retained by the county as it overhauled Cobb’s adult business code last fall.
He has served as the attorney for the cities of Atlanta, Brookhaven and Doraville in their attempts to shut down Morrison’s stores.
In December, the libertarian magazine Reason profiled Morrison in a story with the headline “The Atlanta Sex Toy Magnate Who Can’t Stop Picking Fights,” and interviewed him at the East Cobb Tokyo Valentino store.
He said choosing the location across the street from Merchants Walk and Whole Foods was intentional: “‘We like to be by organic grocery stores,’ he says. That means the shoppers in the area have ‘expendable income’ and are ‘liberal and more educated.'”
But there was plenty of community opposition voiced against Tokyo Valentino by East Cobb residents, who said the store’s proximity to Mt. Bethel Elementary School and Johnson Ferry Baptist Church is inappropriate.
East Cobb resident Daniel White, who started an online petition last summer against Tokyo Valentino, e-mailed East Cobb News on Feb. 4, when the county’s latest motion was filed.
He said he had not received a response from Ott’s successor, newly elected commissioner Jerica Richardson, and urged other residents to contact her as the case goes through the courts.
“While the order has been to shut this location down, of course the owner has appealed. It is the same strategy used in other counties and with their other locations,” White said. “Legal troubles are not uncommon for this owner. Nor are the legal stalling techniques. Maybe the community will bore of it. Maybe the news will stop covering it. Maybe the new commissioner will reprioritize it.”
All six of Morrison’s stores remain open, including his original store on Cheshire Bridge Road in Atlanta. The city has been trying to limit activities there, including the rental of private suites.
Morrison, who opened that store as Inserection in 1998, filed a civil rights lawsuit against Atlanta in 2015, after he had rebranded his business under the Tokyo Valentino name.
A federal appeals court ruled in favor of the city in 2018. Tokyo Valentino’s federal lawsuit against Cobb is on similar grounds (you can read it here).
Among the chief claims of that suit is that Cobb revised the adult business code specifically to put Tokyo Valentino out of business.
The other Tokyo Valentino stores are retail-only, including the Johnson Ferry Road store, Morrison’s first business in unincorporated Cobb County.
The Marietta City Council voted to shut down a Tokyo Valentino store on Cobb Parkway last summer for 180 days, claiming the store inventory didn’t match what was on its business license application.
Tokyo Valentino also has filed a federal lawsuit against Marietta on First Amendment grounds.
In the Reason interview, Morrison discussed his ongoing legal issues with metro Atlanta jurisdictions, including Brookhaven, which has tried to close his Stardust adult store for several years, claiming he’s lied about the intent of his business there.
“We’ll get this thing rectified,” Morrison told the magazine. “At the end of the day, [Brookhaven] will have spent a million dollars to fight something where ultimately they lost.”
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