X-Mart tries new question in court fight

If the businessmen trying to open Augusta's only adult video store want to know why strip clubs can operate within city limits while they cannot, they need the judge's permission to add the question to their legal attack, the federal magistrate said Friday.

Augusta Video, the owners of X-Mart Adult Supercenter, has been battling the city in court since its attempt to open a Gordon Highway store was blocked by commissioners in 2002.

Last year, the 11th Circuit Court of Appeals ruled that the city's efforts to keep the business out through changes in its zoning ordinances were wrong, saying the X-Mart was entitled to the grandfather exception to regulation.

U.S. Judge Dudley H. Bowen Jr., whose decision was overturned, issued an order last summer that allowed the attorneys to continue the discovery process as it applied to X-Mart's compliance with setback requirements.

Knowing Judge Bowen's precise use of language, Magistrate Judge W. Leon Barfield said, he understands the order to mean the attorneys could only deal with the issue of the store's proximity to certain protected areas, such as a school.

X-Mart attorney Gary S. Eddinger told the magistrate he believes existing adult businesses aren't conforming to city ordinances, and he suspects they don't have business licenses.

"Why is there different treatment?" Mr. Eddinger asked.

Attorney James Wall, who is representing the city, told the magistrate he objects to questions about other adult businesses in Augusta. He said he believes Judge Bowen's order limited future inquiries to X-Mart's setback issues and that the new line of questioning is muddling the issues of the case.

Judge Barfield suggested Mr. Eddinger file a motion requesting permission to explore the possible issue of equal treatment of adult businesses.

No motion had been filed by the end of the day Friday.

The federal appeals court ruled in June that the city couldn't use its zoning rules to keep X-Mart out of business.

When X-Mart's owners tried to get a business license and adult entertainment permit, the city denied the request. The licensing rules restrict where adult businesses can operate, the city contends.

Reach Sandy Hodson at (706) 823-3226 or sandy.hodson@augustachronicle.com.