Sex Toy Ban Repeal: Attorneys Move Forward With Lawsuit

SANDY SPRINGS, GA -- Two attorneys behind a lawsuit challenging the city of Sandy Springs' now defunct ban on selling sex toys are vowing to press on with their case before a federal court.

The Council at its March 21 meeting voted to unanimously strike out subsection (c) of Section 38-120 in Article IV of Chapter 38, which labeled devices used to primarily stimulate one's sexual organs as "obscene."

While the city repealed the law it said it never enforced, attorney Gerry Weber said he feels Sandy Springs saw it was about to "lose the case."

“We are pleased that they have repealed it, but they obviously repealed it because they saw the writing on the wall," he added.

Weber represents Kennesaw resident Melissa Davenport, who filed the suit against the city challenging its ordinance.

Davenport, a multiple sclerosis sufferer who sought to purchase sex toys to use with her husband, was joined in the lawsuit by Flanigan's Enterprises and Fantastic Visuals LLC (doing business as Inserection) and fellow resident Marshall Henry.

Cary Wiggins, an attorney representing Flanigan's in the suit, said his office is examining what impact the city's actions will have on his clients and the pending appeal.

"Regardless, because the constitutionality of the ordinance is still before the court, we will pursue the en banc hearing," he added in a statement.

Oral arguments in the case will be held at 9 a.m. Tuesday, June 6 before the entire panel of judges of the 11th Circuit Court of Appeals, records show.

Sandy Springs wasn't the only local government with such laws on the books. According to the Georgia Municipal Association, the cities of Milton, Johns Creek, Kennesaw and Alto as well as Coweta and Cobb counties have similar ordinances that classify sex toys as obscene.

The plaintiffs argued the Sandy Springs ban violated the due process clause of the 14th Amendment of the U.S. Constitution.

In August, the three-judge panel of the 11th Circuit Court of Appeals actually upheld the city's ban, noting it was bound by a 2004 challenge to a similar statute in Alabama.

However, on March 14, that opinion was vacated by the full 11th Circuit Court of Appeals, and the case was allowed to proceed on appeal.

The law was adopted in 2005 when the city of Sandy Springs incorporated. It never enforced the rule, which city spokesperson Sharon Kraun said the ordinance mirrored what was state law at the time.

The state code has since been invalidated and with Tuesday's appeal, the "code now matches up with state law regarding adult devices by not prohibiting the sale of such devices," Kraun added.

While the repeal has been approved, Kraun said Sandy Springs will not discuss or comment on the case, as it remains active in the legal system.

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