they please the court my name is daniel aronson along with co counsel gary ensure we represent the appellant's who i will be referring to his chest shire cheshire filed five issues on appeal that we believe that the district court got wrong when it made its summary judgment ruling the first one that is that the district court was incorrect when it ruled that race judicata prevented or barred the appellant from raising the issues on two of the constitutionality on over breath grounds two definitions of adult stores and adult many motion picture theater secondly the district court was wrong when it ruled on standing grounds that cheshire could not raise the constitutionality of to the definition of an adult entertainment establishment thirdly the court erred when it determined that cheshire needed to follow georgia state law as opposed to federal procedural law in ruling on its writ of certiorari and fourth leith the district court was incorrect when it determined that  had lost its legal non conforming you status or never had a legal non conforming you status when it expanded that legal non conforming use and fifth of that that the injunction that the court issued was overbroad vague and unenfor seven excuse me one thousand nine hundred six cheshire applied for a business license to be an adult to be a retail store that was allowed to sell adult novelties and into dulled videos they had noticed that the code for  atlanta did not provide in its definition of an adult bookstore the terms adult videos or adult novelties in it therefore they were entitled to get their business license for an adult for a retail store selling adult videos and adult we're getting a little sidetracked and excuse me if i'm saying well look there nonconforming uses the issue so was he was the business conforming with georgia municipal statute at that time yes if they had an adult many theater and operate and let me explain why the answer is yes to that under georgia law which is incredibly protective of the landowners rights that once the occupational or the business license is issued that vest the landowner with rights so therefore when they got the license in i believe it was november of one nine hundred ninety seven when they got that license their love their vette they were vested as a legal non conforming use  question that were were they conforming if at that time they had these were the booth right that's that's the many theater yes ok at that time were they in conformance with yes because they don't open up until february of one nine hundred ninety eight ok got a license in one nine hundred ninety seven under georgia law you vest with your with a vested with your legal non conforming you status in one nine hundred ninety seven and therefore when they open up in one nine hundred ninety eight even if they've expanded that legal done conforming use they still are a vested right because it's the issuance of the license at that second the second they got that license they are legally illegal non conforming us and they are vested and what happens later on  not take away that to do what though that's what i'm struggling with are you say adult videos were they selling adult videos yes ok but they were also displaying videos in these boots thereby operating a mini theater does but my question it may not make my question very clear but my question is if you apply for a business license to sell adult novelties and to sell videos is that different under the municipal ordinance from operating an adult many theater which consists of viewing booths where patrons watch the videos in the booth yes it is different but they did both it different therefore is it covered by the one nine hundred ninety seven license that's a question i'm  wrestling with and i'm not arguing that it is what i'm arguing that they were vested to sell adult videos and adult novelties when they got the license i am not arguing that they were best invested to open up a an adult many motion picture theater and were they out of be and if i if i can explain that they the court found first of all the expansion to the adult many motion theater we have contested that that's an issue under atlanta law that should have been resolved on the appeal of the other the search issue that went up with tape putting that aside yes it's an expansion of the legal non conforming use under the way the court ruled but that is irrelevant to whether or not they were a legal not conforming use prior to the at that expansion and what we're saying is even if they work the proper remedy under georgia law is not forfeiture of the legal non conforming use the proper remedy under georgia law is a roll back and the district court at  maximum what it should have ordered is cheshire are you expanded your legal non conforming use what you need to do now is i'm ordering that you roll back to just selling adult videos and adult novelties we're not arguing over the clothes the many theater clo it exactly so that that's what should have happened because under georgia law there's only two ways to lose your legal non conforming use and one is abandonment which they certainly did not abandon they they are still selling adult videos and adult novelty so they've never abandoned that use and you also can lose it if you become a change your business to one that conforms to the zoning district that you're in they haven't done that either so therefore they're still a legal non conforming use as to adult videos and as to adult novelties i had a long presentation i want to go through all five i've already used up a lot of time i'd like to go to the injunction that was issued in this case the injunction that was issued in this case is tantamount to obey the law injunction what the district court did was it took snippets of the the atlanta statutes put it in the put it in on paper and then said obey it they could at the door of the district court could have easily have just said you know what just obey statute ordinance such and such or could have just written down the statute number it is a fatally defective injunction but it show but there's wording in that injunction that really shows how fatally defective it is in the injunction cheshire is not allowed to charge money directly or indirectly for patrons to use devices or equipment under the atlanta ordinance why isn't that clear enough in the injunction that you can't do that well it doesn't say you can't do certain acts as you can't have people touching these equipment so i asked the court i ask anybody what can cheshire higher have we may know that we can have understand that the courts i mean it's kind of i mean is that sort of a commonsense reading of the court's injunction i mean what what more would you have the court right into the injunction to clarify this although sixty five says point it has to be definite and precise so i ask again the court what can we have that's the problem with that injunction it doesn't tell us why but doesn't tell cheshire what they can have we may know what we cannot have but we'll never know under the death under the wording of that injunction what we can have and without knowing what we can have it stopped anything from being there like i said exercise equipment this is stop us from having that even a keyboard because you can't come in in contact with it so it's not definite to let us let cheshire know what they can have that doesn't tell can't provide customers with their vices and equipment can be expected for sexual purposes period no offense to a sexual device by people there is nothing that you can think of that has not been used as a sexual device by some person in some with some proclivity so just to say that sexual devices doesn't tell us what certainly they should be allowed to carry a pen up there and some or have a pen up there and somebody be able to use it but that could be used by another person as a sexual device we do not know cheshire the does not know what it can't have up there and that's the problem counsel before you sit down i would be interested to hear because it took a year for them to get open after they filed for their application so they they filed a lawsuit and they do not challenge the definitions of adult books to work and they do not challenge the definitions of adult many motion picture theater why first of all practically made no sense to it wasn't being applied to them but from a standing stand point they did not have standing it's not being applied to them so there is no injury in fact or no to or no threat of injury or imminent threat of injury in fact that those ordinances are those definitions are not applied to them for sixteen years so therefore they don't have standing there's no redress ability if in fact they get a decision that's favorable to them what do they get they get to be left alone like they've been left alone so there's no standing there for the court was incorrect when it ruled on race judicata that in fact that cheshire should have brought it in one nine hundred ninety eight because it's brought in one thousand nine hundred eight that gets dismissed for standing and that that then turns to the second issue on the adult entertainment establishment because they think the court ruled they didn't have raised res judicata prevented them from it challenging the adult bookstore and the adult many motion picture theater they couldn't get redress on the adult entertainment establishment so the court said it didn't have standing so if the race judicata argument is ruled in our favor then also that the adult entertainment argument that the court said we couldn't raise that because we didn't have standing we would have ha against them to shut them down so it is not just a definition because of that definition it brings in the lawsuit it brings to conduct excuse me entertainment establishment i'm sorry i'm not hearing y are speech that the courts have said you can't ban under the adult into to under adult entertainment it's a relevant to adult entertainment and that's incompetence than it but it's you it's a definition that then is used to shut down happens how are you challenging that definition i'm not going to defend that challenge at this stage my point is that when you challenge the definition of adult establishment how is the city supposed to know which particular definition  a would you're saying over beth claim goes to the entire definition no when i was arguing over breath just a minute ago that's the adult entertainment establishment that's an adult business is the umbrella of it but i thought your argument was that your chat challenging adult establishment was sufficient to also challenge the many theater definition as well as the adult movie theater definition each one of them are challenged under individual group individual definitions and the the whole umbrella the adult entertainment establishment i just went through there are three reasons why it's overbroad an adult many motion picture theater it's oh it's only limited to the showing of a movie that would be showing specified anatomical areas it's lit it's not regularly shows or usually shows if you it once then you become an adult many motion picture theater therefore that overbroad further the definition of specified anatomical areas that they're all predicated on is the showing of the female breast below the top of definition that's one that with that was the race judicata argument that the court found that we what we did not we could not present it because of race judicata also the many motion picture theater that was also the race judicata decision by the court so we challenge adult bookstore adult many motion picture theater and we also challenge the adult entertainment establishment they're all part of adult businesses if one leg of the stool falls and they all fall thank you mr  to challenge the constitutionality law and there was no enforcement proceeding there was there was no record evidence that the city knew about the booze in the basement at the time that they open the a sound how could your inspector miss that i mean did they just not go downstairs you know what happened is the record shows they went down in december of one thousand nine hundred seven when they had filed for the business license application at that time they went into the basement and there were boxes and some storage there but the business didn't open for another three months so the business came along in february twenty first one thousand nine hundred eighty and opened its store and mr morrison told us in this deposition that he illegally did the adult motion picture many motion picture theater from the beginning so that's why from the beginning meeting february of ninety nine that's the day they open the store ok that's right adult business and a legal adult business from the beginning so they cannot establish a lawful non conforming use and my opposing counsel is confused about the difference between vested rights and lawful nonconforming uses there are two separate doctrines under georgia law it is absolutely wrong to say that when you file for a business license application that you have a vested right or a lawful non conforming use to do something later and here's what happened under center to nine hundred ninety six well back up on november twenty seventh one thousand nine hundred six mr morse and he's a frequent flyer in this court we've had three cases here in the last eighteen months on similar facts where an adult business opened up saying they weren't going to do an adult use and that's what the letter from one thousand nine hundred seven was we're not go magazines or print media that would make us an adult bookstore we're not going to do the video blues that's what he explicitly told the city a week later when he filed his application in december to one thousand nine hundred six that's where he applied for only d v d s and novelties things that were outside the code at that time five hours later the city of atlanta dobson new zoning ordinance that includes those items and the business license officials deny the license they sued in fulton county superior court if you look at that four page opinion it's in the record it are thirty seven dashboard volume two of our supplemental appendix the fulton county superior court did not use the word grandfathering did not use the word lawful non conforming used to not use the word non conforming it said under georgia law you have the ability when you file an application to have your application determined as of the law that existed at the time that you filed so that zoning and then the past five hours later would not apply he did not grant them any use he said go back to the city business license department mandating for determination of whether your application met the requirements of the code at the time that it was filed that has nothing to do with lawful nonconforming uses under georgia law a lawful non conforming use is one that came into being and actually commenced lawfully as a legal use and then became non conforming as a result of a subsequent zoning amendment in the corey outdoor case the supreme court of georgia said nonconforming uses are uses of structures which were existing in the actual use of the property was existing prior to the enforcement of an ordinance rendering them non conforming more importantly a use which is merely contemplated for the future unrealized as of the an effective date change in the zoning is not a non conforming use and that's the north georgia mountain crisis network case so they want to rely on what they got as far as a license and summary or the fulton county superior court order all that did was say go back and see if the application filed a year ago in december two nine hundred ninety six met the ordinance requirements of the time the fact that they opened up in february of one thousand nine hundred eighty and absolutely did illegal things that were aronson want to talk about expansion look at the just records opinion it doesn't mention the word expansion or expand it doesn't appear in there this was not an expansion of a lawful non conforming use this was an illegal use from the day they commenced actually using the property in february hundred eight it didn't matter that they lied about what they were going to do and then they got a business license to do that limited thing the fact is when they opened they did what was always an adult business going back to one thousand nine hundred seventy and prohibited at that location under the code that's why the pro remains otherwise lawful so they did a lot of you know they they've been unlawful from day one and so they never had a lawful use and then they told us they ran a laundry modeling for about five years which is an adult cabaret that was illegal there in that stopped so the bottom line is they never all their authorities all the visuals authorities in their brief are distinguishable because the uses in those cases commenced lawfully and then they were later zoe changes so basically the district court decision to not give them what they they do not challenge on appeal the prohibition in the injunction against operating adult men the motion picture at the site or the adult book store at the site those are specifically defined in the injunction order and it's not just a verbatim copy and paste it uses terms which is obvious because the law pursued which the injunction issued is an ordinance but it gives them specific things not to do and the prohibition against operating an adult entertainment establishment is limited to where they charge a patron a fee to engage in personal con command capable of enforcement is valid under the global vs f c c case this circuit quote will not apply rule sixty five be rigidly so what the court cases say to look at to determine the viability of the injunction is you look at the context of the order that resulted in the injunction that would be the twenty eight page summary judgment order you look at the totality of the language in the documents and the orders from the district court and then you look at the circumstances that led to the issuance and then junction we have that judge  that you can't have an obey the law injunction and as i read this injunction it simply refers back to the statutory language no your honor it doesn't in this sense it has a paragraph that says here my findings summary judgment order said here the  findings here's why you're an adult business under these various subcategories adult bookstore adult men the motion picture adult entertainment establishment and then in that injunction order he makes specific findings about how they're doing these types of things and then at that injunction he says you can operate this kind of establishment as described in this paragraph above you can't operate this kind of establishing as described above and if we look under this court case law at the totality of the circumstances he tells us on page twenty four foot now eighty of the summary judgment  that's record entry eighty one in the appendix it specifically says what is printed says that cheshire visuals is a adult entertainment establishment because they offer bondage and domination brand community furniture and equipment for customers to use including a cage a swing a stockade and other devices to restrain a person in various positions that informs the injunction that's what he's prohibiting that's what made them an adult entertain establishment if they stop doing that they don't  injunction they can do it in two different ways number one they can stop offering access to those by just taking that sexual furniture out of the store that's not that's easy to obey mr aronson suggest that injunction has to tell you everything that you can do that's backwards an injunction says what you can't do and so what they can do is to what they can do is offer these sexual furniture devices for a fee so to comply with the injunction it's very simple they can stop offering those by taking them out of the establishment or they can stop charging a fee to that portion of the stammer remember there's two entrances there's a front entrance and a back entrance there's a cover charge to get you to the back entrance is which has the piece of booze and all these sexual furniture devices if they did what they did at the front entrance and that is not charge a cover charge or fee to get into that portion of the establishment if they did that at the back entrance they are in compliance with the injunction it certainly has an operative complaint and that is capable in force and therefore it is certainly not overbroad because it does this doesn't deal with speeds none of this is inherently expressive activity so the judges summary judgment order informs the injunction order and makes it clear what is prohibited there is an operative command and that's all the city would move for contempt on if they continue offering the  spain benches in the stockade ok that may trigger the issue but if they get rid of those it's no problem now i'd like to address judge thomas questions about the rescue because the issue of the question arrest you caught in georgia law and federal law is whether the plaintiffs could have brought could have brought a claim in december of one thousand nine hundred eighty eight that was the last filed prior federal lawsuit there was one in december ninety seven they absolutely could have brought a challenge to the adult bookstore definition and the i don't mean the motion picture bookstore definition to deny the permit in december of one thousand nine hundred six and then remember a year later the city voided a building permit that they had initially issued in air because it had video booze on the diagram on the floor layout and then it had magazines and videos so the city and force the adult bookstore definition from the prior code which was print media and also in force the adult many hundred code prohibited from doing what their paperwork in one thousand nine hundred seven after they won the superior court order to you know have the application process under the prior law they submitted something that indicated they were going to go beyond that and do something that's always been defined as an adult business and the court voided our the city voided that and then most fundamentally or on top of all that they actually sold print media magazine section explicit videos from the beginning to expose the magazines rather from the beginning so they were under the adult book store definition in february of one thousand nine hundred eight when they opened and they also told us that they were in the illegal peach abuse from the beginning from february one thousand nine hundred eight so when they filed their federal lawsuit ten months later in december of one thousand and eight they obviously knew they were doing that which was prohibited by the code and they so you're saying they would have had standing at that point based on the fact that they were engaging in conduct that the code says is illegal and they could have a ledge to establish standing that we fear that the city may take enforcement action against us under this order and therefore that is a significant enough injury that we should be permitted to challenge its constitution sure this is a whole new  city had already enforced those adult bookstore and video adult many motion picture theater definitions against them by voiding the building permit that on the schematic indicated they were going to do those things and then they enforce the entirety of the adult business definition because when they issued the actual building permit it said this location is not allowed for an adult business so they come along in their appellate brief for the first time they say there was no events intent to violate the law and therefore we would have had a rightness there was intent they were actually doing it they were actually doing a peep show booth operation that was always illegal they are actually doing magazines actually explicit video sales are always illegal so they never had a non form in use and they were b rescue caught and then finally if i could address the other red clay real quickly there's no there there just report probably rejected the over both claim because it only went to a portion of the adult entertainment definition that does not apply to that it went to laundry modeling which they have not done for more than a decade and had no intent to do and then it went to movements or some kind of live entertainment of movements of a sexual nature which mr morrison told us in his deposition no we don't do that we haven't done that for years so there was no injury in fact that's why he said there was no  separately there was no redress ability because if there was still there was some claim that could prevail against the adult entertainment establishment definition you still are barred because you're in a legal adult business at that site within five hundred feet of a residential zone because you're doing the adult mini motion picture theater that piece showed those that have been illegal from the beginning and then judge wilson you had it exactly right this doesn't pay anything this isn't over bread case they don't do new dancing but this does mean a man who dances it's a location wrong there is only an ordinance and i see that my time is up i would just ask that this court affirm the well reasoned judgment of the district court below this court in crown media versus when it county stated georgia courts have concluded that property rights invest when a permit is actually issued for a particular particular land use but if the permit was issues wholly for adult books and sale of adult novelties and videos and videos in december nineteenth ninety seven and in february of one thousand nine hundred eight your clients began doing things that were prohibited under the statute how can that be a legal mine conforming use if it's illegal in february of one thousand nine hundred eighty even begin such activity well first of all i'd like to answer that in two ways first for the trees here the district court found relied on mr marson steps to moni in order to determine when the adult swim in the mini motion picture theaters and mr marson testimony in deposition was from the beginning now beginning twenty years in advance when this deposition is being taken he says from the beginning but you had code people who went in there who also gave depositions who testified that if in fact those boost were there when the business was operating from the beginning they would have seen it and they said they did not see it further in the city's complaint answer to our complaint and in their counter claim number paragraph thirty eight of their count of claim they say based on information or belief that the many motion picture theaters opened up in one nine hundred ninety eight one thousand nine hundred ninety nine so when they took mr marson deposition they got a windfall from somebody who was trying to relate back twenty years earlier but they knew big they put in their complaint it was either one nine hundred ninety eight or nine hundred ninety nine they knew themselves that it wasn't from the inception and am i right that the city inspectors couldn't be any more accurate than mr morrison was as to the dates on which day that they didn't say what date it went and they said when they went in there they didn't see the mini motion picture going we don't we don't know when they went in there that was after was open we do know that ok so there are so therefore they're not saying the beginning whatever they're saying when we went in there they weren't there and because it wasn't there then that i mean either it is or it isn't so we have like i said we lost the forest for the trees by determining that in fact it was from the inception the record is not clear on that point at all i would also like to point out that there was a two thousand letter from the from a councilwoman to the code people saying go in there and inspect the it go in there and inspect the premises i am hearing what's going on in there and the city in that in the one nine hundred ninety eight lawsuit did not supplement any of their pleadings whatsoever to say hey these things are going in they are there still they  need to contest this they let that live that the fact that these things were going on cheshire never hid what was going on but you cannot say that it started in in february of one thousand nine hundred eight the record is t unclear for that what we can say their rights vested when they got there when they got their occupational license or business license in one thousand ninety seven in in november when they actually violated that and expanded their legal non conforming use is something that i don't know if we'll ever know the exact date but we cannot say that it was from the inception on the day they opened thank you thank you counsel