Legal fight to close Columbia sex shop years from end, owner says

Legal wrangling has kept Columbia’s only legal sex shop open for two years beyond when City Hall wanted it closed as its owner vows a lengthy fight that he said will go to the U.S. Supreme Court.

Taboo Adult Superstore owner Jeff White and city officials are waiting on U.S. Judge Terry Wooten’s consideration of the shop’s request for the judge to withdraw his March 2015 decision tossing out the store’s lawsuit.

Wooten’s 50-page decision rejected Taboo’s arguments, including that shuttering the store was a violation of constitutional guarantees of freedom of expression and of due process, which means fair treatment under the law. Taboo said there are no other suitable locations in the city.

Both sides expect Wooten’s ruling soon.

“If I win, the city is going to appeal. If the city wins, I’m going to appeal,” White said. “We’ll be in the (U.S. 4th Circuit) court of appeals for at least two years.

“This case is going all the way to the Supreme Court,” he said. “Whether they choose to hear it or not is up to them. I’m going to continue to survive.”

That’s unwelcome news for critics, who since within weeks of the shop’s opening in late 2011 at 4716 Devine St. pushed to close it.

“We just would like to see the rules abided by,” said Janet Jordan, president of the Hampton Hills Homeowners Association. “We changed the law to move the guy away from where he’s located. It just looks like the city can’t get it done.”

Neither the city nor nature’s wrath has succeeded in closing Taboo.

Columbia hired Scott Bergthold, a Chattanooga attorney who specializes in helping local governments in disputes with sexually oriented businesses.

Bergthold said the passage of nine months since Wooten’s initial decision is not unusual.

White said the Oct. 4 flood destroyed his inventory and heavily damaged the 1,600-square-foot building next to Gills Creek that houses sex toys, videos, magazines, lotions and other adult merchandise.

Within three weeks, Taboo was back in business, White said. “I was the first business to open ... and I was the second-hardest hit business,” he said of the flooded commercial district at Devine Street, Rosewood Drive and Garners Ferry Road.

Taboo has not paid for a city business license since shortly after the legal fight began, according to court documents. “They won’t give me a business license,” White said. “They are refusing to accept it.”

The latest courtroom skirmish centers on Taboo’s contention that the city changed its zoning standards affecting the stores for a third time with one word on April 27, 2015.

City Council added the word “locational” to a sentence that banned sexually oriented businesses that do not meet any part of the city code. Bergthold calls the change a clarification.

Tommny Goldstein, Taboo’s lawyer, sees it as Columbia trying to close any avenue for the store’s continued operation.

“There is no doubt that the court is now dealing with a new, narrower ordinance,” Goldstein argued in a written request to Wooten seeking to reverse the judge’s previous decision. “Whether the court characterizes the city’s amendment as newly discovered evidence, or as evidence of the city’s misrepresentations, one thing is clear ... the city lacked confidence in its zealously defended ordinance and sought to cure its provision with an after-the-fact patch.”

Efforts to reach Goldstein were unsuccessful.

Bergthold, one of two lawyers hired by the city, dismisses that contention. “To me, it’s much ado about nothing. The city made a minor modification on a provision that had never been applied to Taboo.”

White said the change in the law is part of the city’s on-going effort to put him out of business even though Taboo met city codes when he received approval to open four years ago.

“I would have never, ever opened this business at that location if I did not have the city’s permission,” White said.

In changing its laws, the city said that sexually oriented businesses often are accompanied by “adverse secondary effects” such as prostitution, lewdness and damage to property values nearby.

White said he went to each of the 42 sites the city designated as acceptable new locations for sexually oriented business in areas zoned light industrial. None was practical for an adult business, White said.

Taboo is 551 feet from the nearest structure, a church, under the old zoning buffer of 500 feet, he said. The new buffer zone is 700 feet from protected structures.

Sex shops are a legal retail outlet and serve as an alternative to online pornography, White said.

“It’s women coming in and buying toys,” he said of Taboo’s customers. “We have a lot of college students. Some couples, too. They’re not harming anyone. It’s sexual health and happiness. I really don’t understand what the big deal is.”

He’s unsure how much he has spent suing the city to stay open. An expert witness cost more than $10,000 and legal fees from his attorney, Goldstein are more than that, White said.

Taboo makes enough to sustain the fight. It has grossed more than $1 million since it opened Dec. 5, 2011, White said. “It’s paying its own legal defense.”

This story was originally published January 4, 2016 at 4:16 PM with the headline "Legal fight to close Columbia sex shop years from end, owner says."