Parker v. Whitfield County

463 S.E.2d 116 (1995)

265 Ga. 829

PARKER d/b/a Paperdolls v. WHITFIELD COUNTY, Georgia.

No. S95A0655.

Supreme Court of Georgia.

November 6, 1995.

*117 Thomas E. Maddox, Jr., Tucker, for Parker.

C. Lee Daniel, III, McCamy, Phillips, Tuggle & Fordham, Dalton, for Whitfield County.

THOMPSON, Justice.

Parker, the owner of a nude dancing establishment known as Paperdolls, attacks the constitutionality of a Whitfield County ordinance pertaining to the regulation of adult entertainment establishments. We find the ordinance constitutional and affirm the superior court's denial of declaratory and injunctive relief.

1. Determining that adult entertainment establishments increased criminal sexual activity and depressed surrounding property values, the Whitfield County Board of Commissioners enacted an ordinance which was intended to minimize these concerns. The enactment of the ordinance was based on studies conducted by other communities, as well as formal and informal meetings between the members of the board, the Whitfield County Sheriff's Department, county residents, and the commissioners of other counties. Parker takes the position that the evidence assembled by the board was insufficient to justify the enactment of the ordinance. In this regard, he asserts that the county presented no evidence that the studies upon which the board relied were reasonable or accurate. However, "[i]t was not incumbent upon the [county] to prove the efficacy of the studies. To the contrary, the [county] was only required to prove that it considered `specific evidence of the pernicious secondary effects of adult entertainment establishments which it reasonably believed to be relevant to the problems addressed by the ordinance.' Club Southern Burlesque v. City of Carrollton, 265 Ga. 528, 530 (457 SE2d 816) (1995)." World Famous Dudley's Food & Spirits, Inc. v. City of College Park, 265 Ga. 618, 620, 458 S.E.2d 823 (1995). The evidence offered by the county satisfied that burden.

2. The ordinance sets forth certain regulations to create and ensure a buffer between performers and patrons. For example, it requires performers to dance on a stage of minimum height; establishes minimum distance requirements to prevent patrons and performers from touching each other; provides for full lighting of the premises; prohibits performers from receiving gratuities; and prohibits the sale and consumption of alcoholic beverages on the premises. Parker erroneously asserts these regulations demonstrate that the ordinance is unconstitutional because they are aimed at the suppression of free speech, not the pernicious secondary effects of nude dancing.

An ordinance can pass constitutional muster even though it has a somewhat negative impact on protected expression. See Pel Asso, Inc. v. Joseph, 262 Ga. 904, 907, 427 S.E.2d 264 (1993). The Whitfield County ordinance furthers important government interests (reducing crime and protecting neighborhoods from deterioration) unrelated to the suppression of free speech, and the incidental restriction of speech is no greater than necessary to further the government interests. See Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 256, 297 S.E.2d 250 (1982); Gravely v. Bacon, 263 Ga. 203, 207, 429 S.E.2d 663 (1993).

Parker's assertion that these regulations violate equal protection is equally erroneous. The county can "classify and regulate adult entertainment establishments differently *118 from other places of entertainment. [Cit.]" Gravely v. Bacon, supra at 207(3), 429 S.E.2d 663.

3. The ordinance requires the owners and employees of adult entertainment establishments to be licensed by county officials. In this regard, the ordinance provides that the decisionmaker must investigate the background of an applicant and grant or deny the license within thirty days. It also allows for an appeal to the board from an adverse decision and requires the board to hold a hearing within thirty days. These requirements ensure that licensing decisions are to be made within a specified brief period and do not place unbridled discretion in the hands of the county. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226, 227, 110 S. Ct. 596, 605, 606, 107 L. Ed. 2d 603 (1990) (ordinance which does not set reasonable time limits for decisionmaker to issue license is impermissible); TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 708 (5th Cir.1994) (licensing decision to be made within 60 days is reasonable).

Moreover, the ordinance contains clear and appropriate standards for the issuance of a license. It states that a license shall be issued to an applicant who is at least 18 years of age, completes the application, cooperates in the application process, has not made a material misrepresentation in the application and has not been convicted of a specified sexual offense. The ordinance does not vest the decisionmaker with unfettered discretion simply because the applicant must provide additional information upon the decisionmaker's request.

4. The ordinance does not discriminate against adult business establishments because it provides that licensees must not have been convicted of a sexual offense. This provision is not overbroadit is a valid exercise of the police power and is not unreasonable. Compare Airport Book Store, Inc. v. Jackson, 242 Ga. 214, 222, 248 S.E.2d 623 (1978) (denial of license based on sexual offense is reasonable) with Pel Asso, Inc. v. Joseph, supra, 262 Ga. at 909, 427 S.E.2d 264 (denial of license based on any crime of moral turpitude is unreasonable).

Judgment affirmed.

All the Justices concur, except SEARS, J., who concurs in the judgment only.