MARIETTA, Ga. — The Marietta City Council held a special meeting tonight to decide if local adult retailer Tokyo Valentino may continue operating under the Georgia city’s zoning laws. The City Council proceeded to suspend and revoke the store's license for 180 days and ordered Tokyo Valentino principal Michael Morrison to remove all items from the store.
The special meeting, which lasted two hours and followed the regular City Council meeting, was an appeals hearing requested by Tokyo Valentino to discuss the June 18 revocation of the store’s business license. The appeal was denied.
The meeting, conducted in the manner of a trial, started at 9:15 p.m. (EDT), after the regular City Council meeting dealt with general zoning issues. Morrison did not attend the hearing and was represented by his lawyer, Cary Wiggins from the Wiggins Law Group.
The push to revoke Tokyo Valentino’s license followed an investigation by Marietta City Manager Bill Bruton’s staff. The store had been open for four years prior to the revocation.
Marietta Police Department officers visited the Tokyo Valentino store twice last May, and both times they purchased sex toys and adult videos. Marietta city employees also visited the store to photograph displays and stock.
The city’s argument is that Morrison’s actual business does not conform to his original 2018 city license to sell “general merchandise” and that it should be reclassified under “adult entertainment” or, in the words of the statute, “adult bookstore.” This would effectively shutter the business, given Marietta’s restrictive zoning laws for adult establishments.
God and Georgia
The hearing was scheduled for 8 p.m. (EDT) but first the City of Marietta City Council had to conduct general business regarding zoning issues. However, one could have guessed at the disastrous outcome of Tokyo Valentino’s appeal simply by listening to Councilmember Michelle Cooper Kelly of Ward 6 start the city zoning and regulations proceedings by reciting:
“Heavenly Father — I thank You for this day. We thank You for the opportunity to gather together for the common goal of making the best of our city. As we stand before You, we ask that You guide and direct our meeting so it is full of wisdom.”
Councilmember Cooper Kelly also asked God to “watch over our public safety officers,” some of whom would be called as witnesses by the city to describe and classify the sexual devices sold at Tokyo Valentino.
The general meeting was largely taken up with the matter of whether a real estate developer could build student housing near a residential neighborhood, with several Marietta neighbors playing the NIMBY card, but it also included a public statement portion where a local candidate for a judgeship prominently mentioned her church service and Sunday school teaching as qualifications to hear civil and criminal cases.
‘Viewer Discretion Is Advised’
After two hours of local business, Mayor R. Steve Tumlin called a recess before the special hearing to decide the Tokyo Valentino appeal began, an hour and fifteen minutes behind schedule.
“We’d like to say ‘viewer discretion is advised’,” the Mayor admonished. “There’ll be explicit, uh, I guess, evidence presented. So just handle it like adults and we’ll go from there.”
“I’d like to turn the public hearing over to Mr. Haynie,” the Mayor added.
The hearing to determine if Deputy Director of Finance Patina Brown had been correct in suspending and revoking the Tokyo Valentino license last month was conducted in a pseudo-judicial manner, with City Attorney Doug Haynie acting the part of the judge.
Haynie, a key figure in the local legal and political establishment with decades of insider experience, is the founding partner of Haynie, Litchfield & White. He has served as the City Attorney for the City of Marietta since 1990 and the City of Acworth, Georgia since 1996.
Haynie was also revealed during the testimony of city officials to have been the instigator of the investigation into Tokyo Valentino’s license, leading Wiggins to call into question the proceedings' impartiality.
The city was represented by one Mr. Smith, and Tokyo Valentino — described during the proceedings by its corporate name, Tokyo Excitement — by Wiggins.
Smith’s witnesses were a parade of city officials and employees who had visited Marietta’s Tokyo Valentino and photographed, measured and purchased items to prove that the adult store was, in fact, an adult store.
‘Seductive in Nature’
The first witness was Sgt. Josh Liedtke of the Marietta Police Department. He recounted his two visits to Tokyo Valentino in May and brought a bag of “exhibits” consisting of merchandise he had purchased.
He said that after he received a complaint, “I had to go inside and observe and make a purchase of sexually related items.”
Prompted by Smith to describe his purchases, Liedtke recited, “Fleshlight penis, sexually explicit sex movie, pocket Fleshlight vagina” and “double penetrator sexual penetrating device, another sexually explicit DVD, anal beads.”
“Will you pass those around,” said Haynie in his judge-like role, “so that people can be looking while you proceed?”
Liedtke testified that in his opinion “about 99% of the store” contained items of a sexual nature.
On cross-examination, Wiggins asked the policeman who had asked him to go to the store. Liedtke said a Deputy Chief had sent him to “just go inside and purchase three sexually related objects” after the complaint.
“The complaint came from Doug Haynie,” Liedtke added.
Wiggins asked the policeman about the merchandise being sold that he had classified as being “sexually related.”
“Lotions and gels,” Wiggins asked. “Are they considered sexual devices?”
“It wasn’t a lotion I’d seen at [supermarket] Kroger, so it was all geared to sexual activity,” Liedtke replied.
Wiggins asked about the shoes sold by Tokyo Valentino.
“They are not shoes [you'd] see on normal people walking around,” Liedtke replied, adding that although “they are not used for sex,” they are footwear “you’d see [on] strippers and ladies of the night.”
The policeman also described the shoes as “seductive in nature.”
“What about the lingerie?” Wiggins asked.
Sgt. Liedtke, whose main area of expertise appears to be military-grade weaponry and not ladies’ undergarments, classified it as “see-through.”
“It’s not lingerie you’d find at Target,” he added.
'Vaginal Areas, Vaginal Areas'
The City continue calling witnesses who had visited Tokyo Valentino to ascertain that, in fact, it was an adult store.
Ron Bruce, with the Code Enforcement Inspection office, Housing Code division, visited the store and took photos back in May 2018. He described seeing “a display showing adult toys depicting beads, and the like.”
“Do they appear to be related to sexual activities?” Mr. Smith probed. “Are they necklace beads or sexual beads?”
“They are sexual beads,” Ron Bruce testified before moving on to “other adult toys that simulate synthetic body parts.”
“What body parts?” asked Mr. Smith.
“Synthetic breasts, penis, vaginal areas, buttocks,” Bruce recited, describing every one of his photos.
“Vaginal areas, vaginal areas,” he continued, as he flipped through the images.
On cross-examination, Wiggins got Bruce to admit that one small bin in the store with a few adult DVDs contained the only movies available in the store.
Bruce also confirmed, within his area of expertise, that Tokyo Valentino had been generally “code compliant” with the city, and had promptly fixed four “sonic violations” since 2018.
Rachel Bordeaux, from the City License Department, testified about going to the store three times in May and June to take photographs.
Asked by Smith to describe the items she photographed, Bordeaux referred to “adult sex toys, adult sex games, stimulants and things of that nature, adult movies, penetration devices, things of that nature.”
“Are they related to sexual activities?” Smith asked.
“They are dildos, vibrators, anal beads, things like that,” Bordeaux replied.
Shelby Little, planning and zoning manager for the City of Marietta, was called in to describe her visit to the store with Ron Bruce and others in 2018.
Jeffrey D. Weed, the city’s senior revenue officer, was asked about the “general merchandise license” Tokyo Valentino had applied for, stating the store intended to sell consumer items including “smoking accessories, hookahs, games, lotions, electronics.”
Smith asked if the application had said anything about “sexual body parts, breasts” and Weed replied that it hadn’t.
Smith then made Weed list other stores that had the general merchandise license, and the revenue officer listed Dollar Tree, Gygabytes Cafe, Family Dollar, Walmart, Big Lots, Value Village and others.
Tokyo Valentino, Weed stated, “was not general merchandising — all their items were sex-related, of a sex-related nature.”
After Weed stated that he considered the application “misleading,” however, Wiggins got Weed to admit that there was nothing false in Tokyo Valentino’s application, because it said “including, but not limited to” the general items.
‘Do Not Answer That Question!’
During Weed’s cross-examination, Wiggins also got on record that Tokyo Valentino submitted a letter to the city in May 2018 saying that it intended to add sexual devices to its inventory, and that Deputy Director of Finance Patina Brown, Weed’s superior, had both conducted the investigation and decided on the license revocation.
Wiggins' cross-examination of Marietta’s senior revenue officer also caused Doug Haynie — whose role in the license revocation process implicitly remained a target of Tokyo Valentino’s lawyer and his defense — to lose his temper briefly.
Wiggins attempted to tie Weed up in knots with the familiar argument over how exactly to define the nature of “adult business.”
If Tokyo Valentino were to be classified as an “adult bookstore,” Wiggins asked, would a bookstore that sells Playboy magazine, or a gas station, also have to apply for special zoning as “adult bookstores”?
“The difference is the graphic nature of the items in the store goes beyond Playboy magazine,” Weed started answering, heading in the direction of having to define sexual matters.
“Then Barnes and Noble that sells the Kama Sutra is an adult bookstore?” Wiggins continued.
“Barnes and Noble carries a wide variety of literature,” Weed started, before being cut off by an objection from Smith, immediately sustained by a less-than-calm Haynie.
“Do not answer that! He’s not a lawyer, he is not qualified to do that!” Haynie exclaimed, while Wiggins protested, asking why the city was permitted to ask the “unqualified” Weed to define the nature of a “sexually related business” if the defense was not.
Haynie sustained Smith's objection, effectively ruling that the city could ask Weed how to interpret the supposedly “sexual” nature of Tokyo Valentino’s business and stock, but the store’s lawyer could not.
For the appeal, Wiggins only called one witness, Christopher Colman, a marketing and public relations representative for Tokyo Valentino, who testified that a shallow 3-foot-by-3-foot bin was the only place in the store where one could find pornographic DVDs.
Colman also testified about the nature of items at the store, describing lotions, lingerie, “condoms you’d find at CVS” and only “about 25 percent of the inventory” being “sexual devices.”
Closing Arguments
“This really comes down to a legal question,” Wiggins said in his closing arguments. “The city of Marietta has a series of ordinances that address adult entertainment, it’s a licensing ordinance.” He then stressed the importance of “the definition of ‘adult bookstore.’”
“The allegation was that Tokyo Excitement is operating an adult bookstore in violation of city ordinances,” Wiggins summarized. “It’s not.”
The lawyer admitted that the definition “is a bit of a relic” and “it doesn’t reach sexual devices, toys, inanimate objects. It doesn’t reach whips, chains, anal beads. It doesn’t reach all these things that make me blush — I don’t know about you — it doesn’t reach [adult] toys.”
Wiggins then stressed that of all the businesses that could take advantage of the outdated definition, Marietta is lucky that Tokyo Valentino is among the least objectionable.
He described Michael Morrison as “a high-end operator that operates […] a clean store.”
“It’s not a red light district like Detroit [or] Boston,” Wiggins added. “It’s not a blemish in Marietta.”
As for locals who “don’t like erotic entertainment,” Wiggins explained that the store “contains them in a little bin.”
“It’s less than 1% of the total floor space,” he added.
“It doesn’t even come close to being an adult bookstore,” Wiggins continued. “I can assure you Barnes and Noble sell more erotic media than Tokyo [Valentino]."
Wiggins’ next appeal was to property rights. “You have to read the ordinance,” he told the Council. “You don’t stretch it. You’re trying to take away someone’s property. […] Stretching an adult bookstore to sex toys is going beyond the text, and you’re using it to shut the business down.”
The statute’s definition of “adult businesses,” he argued, is “over-broad.”
After reiterating his motion to dismiss, Wiggins again condemned what he called the “improper" involvement of Patina Brown and Doug Haynie throughout the licensing revocation process.
At the end of his closing argument, seemingly resigned to the likelihood of impending defeat, Wiggins noted that Brown was the acting business license manager and that it was she who had arranged for the investigation by the city and then “turned around and presided over a business license revocation meeting a few weeks ago.”
“It wasn’t disclosed,” the lawyer added.
Wiggins then took aim at Haynie, whom he called “revered” in Marietta, repeating that it was Haynie who advised the police to go into Tokyo Valentino.
“He’s a good lawyer,” Wiggins said, “but the structure is no good."
Finally, Wiggins attempted a First Amendment argument, citing a case that “rendered the code” used against Tokyo Valentino “unenforceable.”
“I can tell you your ordinance is unconstitutional under the First Amendment,” Wiggins added. “And it’s not a close call. It was decided 19 years ago.”
“This is not a bad business, they are good corporate citizens. They wanna contribute, they wanna pay taxes, they are not a blight,” Wiggins described his client in closing. “It’s not for everyone, but they have a right to be, to coexist.”
The lawyer for the city, Mr. Smith, admitted that “the labeling [of adult bookstore] is not good,” but “some brilliant mind that wrote this years ago had some foresight” to define the rule as “an establishment having a significant part of their stock and trade ... distinguished and characterized” by its sexual nature.
After Haynie closed the proceedings, the Mayor and the councilmembers left the chambers for a few minutes and then returned, late into the Marietta night, with a verdict against Tokyo Valentino.
