Judge supports block on adult shop
Published 12:00 am Tuesday, December 30, 2003
Circuit Court Judge Rodham T. Delk has upheld the city’s actions to block the establishment of an adult entertainment/novelty shop in the Suffolk West Shopping Center.
On Dec. 23, Delk dismissed Gregory Sakas’ appeal of the Board of Zoning’s (BZA) decision against the business. The judge elaborated that the retail outlet constitutes an adult bookstore, which would predominantly sell publications and other materials of a sexual nature.
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The Unified Development Ordinance, under which the shopping center is zoned B-2, does not permit adult bookstores. Sakas had, in part, maintained that his shop would be joining other businesses in the B-2 zoning which already sell adult merchandise.
&uot;While it may be true that there are currently retail establishments in the B-2 zone which sell some publications and materials of a sexual nature, Sakas’ proposed establishment will be primarily devoted to that purpose,&uot; Delk’s decision reads. &uot;Sakas has simply failed to establish that the decision of the BZA was plainly wrong and in violation of the purpose and intent of the UDO.&uot;
Meanwhile, Sakas and his legal team are not ready to take no for an answer.
&uot;I’ll see them in federal court. As far as I’m concerned, I’m going to sue for everything I can,&uot; said Sakas, who was just made aware of Delk’s action on Tuesday.
He also alleged that the outcome is a product of the &uot;good ol’ boy network,&uot; adding that he believes Delk was on the city’s side from day one.
Sakas, president of the Goldsboro, N.C.-based Casual Fun Productions Inc., attempted to open the company’s sixth adult novelty shop at Suffolk West Shopping Center. He had already leased a 1,000-square-foot storefront in the plaza.
In August, the city’s court-appointed Board of Zoning Appeals upheld an earlier decision made by Erik Fox, assistant director of Neighborhood Development Services, that the proposed store is not in accordance with the city’s growth management tool, the UDO.
Fox made his initial determination using a list of all the possible uses permitted in shopping center’s zoning designation, Scott Mills, the city’s planning director, explained in August. The UDO doesn’t permit adult book/novelty shops to operate anywhere within the city, he added.
&uot;There was no listing for adult bookstores,&uot; said Mills, &uot;therefore, it was presumed not to be permitted.&uot;
To fight the city on its decision, Sakas retained Lipsitz, Green, Fahringer, Roll, Salisburg, and Cambria, the Buffalo, N.Y.-based law firm that represents Hustler and its publisher, Larry Flynt.
Barry N. Covert, an attorney with the firm, alleged that the city’s action violated his client’s constitutional rights.
But Delk countered in his ruling that the &uot;BZA appeal is a specific statutory remedy, and that this proceeding is not the appropriate forum to advance First Amendment challenges either to the UDO as a whole or as applied to Sakas in this case. Accordingly, this claim likewise fails.&uot;
Covert also challenged the city’s procedure requiring anyone wanting to open &uot;adult-oriented&uot; businesses apply for a conditional use permit. The request is then evaluated by a zoning administrator who determines whether it meets necessary city zoning requirements. If the request is denied, the applicant then has the right to go before the city Board of Zoning Appeals. Covert also argued that the UDO does not list guidelines for the zoning administrator to use in making his decision.
&uot;The … administrator is left to use his/her own criteria in making this decision,&uot; Covert said.
Sakas owns similar novelty shops in Charlottesville and in several North Carolina localities, including Elizabeth City, Wilmington, Havelock, Wilson and Lumberton.