Secret Desires Lingerie, Inc. v. City of Atlanta
Secret Desires Lingerie, Inc. v. City of Atlanta
Opinion of the Court
On October 4, 1993, the City of Atlanta enacted an ordinance to regulate lingerie modeling studios. Appellants challenged the constitutionality of the ordinance, seeking declaratory and injunctive relief. Following a trial, the superior court upheld the constitutionality of the ordinance. This appeal followed.
Appellants assert the City did not rely upon relevant evidence of the undesirable secondary effects of lingerie modeling studios when it enacted the ordinance and that, therefore, the ordinance cannot pass constitutional muster. We agree.
When a governing body enacts an ordinance regulating adult entertainment establishments because of their purported undesirable
In a lawsuit challenging the constitutionality of an ordinance regulating adult business establishments, the governing body must be able to offer evidence of the studies it relied upon in enacting the ordinance. Id. If it cannot do so, the ordinance cannot be deemed constitutional.
At trial, the City introduced the testimony of three of its vice squad officers who opined that there is a correlation between lingerie modeling studios and prostitution. But the City did not even show that members of the city council were aware of the officers’ conclusions, much less that the ordinance was enacted on the basis of those conclusions. And the ordinance itself sheds no light on this issue.
The City is unable to point to any evidence demonstrating that it considered specific studies of the pernicious secondary effects of lin
The trial court erred in upholding the constitutionality of the ordinance. Chambers v. Peach County, supra.
Judgment reversed.
The preamble to the ordinance simply provides:
WHEREAS the City of Atlanta has an interest in promoting and protecting the public health safety and general welfare of its citizens; and, WHEREAS the City of Atlanta has a responsibility in maintaining law and order within its borders; and ... WHEREAS the Code of Ordinances of the City of Atlanta does not currently regulate lingerie modeling studio establishments and their employees; and WHEREAS lingerie modeling studio establishments have a tendency to breed illegal activities
Dissenting Opinion
dissenting.
The trial court found that the City of Atlanta had knowledge of the secondary effects of lingerie modeling studios “prior to and at the time” the city council enacted the challenged ordinance. Because this factual finding is not clearly erroneous and the city’s ordinance does not violate free speech, I dissent.
Unlike the cases on which the majority relies, this case is not in this Court based on the grant of a motion to dismiss or a motion for summary judgment.
The majority ignores this standard in finding irrelevant the testimony of vice squad officers based on their personal experience in investigating crimes and enforcing the law at lingerie modeling studios already operating in the City of Atlanta. The police officers testified that they had investigated complaints of criminal activity in lingerie modeling studios; had seen acts of prostitution, simulated sex, and public indecency in the establishments; and had arrested one patron for engaging in sexual intercourse with an employee. The officers explained the difficulties they encountered in making arrests and their
In reversing, the majority opinion ignores the rationale for evaluating city ordinances to determine if they impermissibly infringe on free speech. Instead, it collapses federal first amendment law to a single test: whether the city council relied on “specific studies” of secondary effects before enacting the ordinance. Just as a governing body is not required to consider a “study” before adopting regulations that restrict leafletting at a state park
We have never addressed whether lingerie modeling is expressive conduct entitled to the protection of the free speech clause of the United States and Georgia Constitutions. Assuming that it is,
I am authorized to state that Justice Hunstein joins in this dissent.
See, e.g., Chambers v. Peach County, 266 Ga. 318 (467 SE2d 519) (1996) (reversing summary judgment); World Famous Dudley’s v. City of College Park, 265 Ga. 618 (458 SE2d 823) (1995) (affirming summary judgment); Discotheque, Inc. v. City Council of Augusta, 264 Ga. 623 (449 SE2d 608) (1994) (reversing summary judgment); Quetgles v. City of Columbus, 264 Ga. 708 (450 SE2d 6770) (l994) (reversing dismissal), cert. denied,_U. S._(115 SC 1794, 131 LE2d 722) (1995).
OCGA § 9-11-52 (a); see Alexander v. DeKalb County, 264 Ga. 362, 365 (444 SE2d 743) (1994); Carter v. State, 257 Ga. 510, 513 (361 SE2d 175) (1987).
Hanson v. Kent, 263 Ga. 124 (428 SE2d 785) (1993).
See Stone Mountain Mem. Assn. v. Zauber, 262 Ga. 661, 663 (424 SE2d 279) (1993) (finding the state has a “legitimate interest in the orderly maintenance of the Park”).
See Hirsh v. City of Atlanta, 261 Ga. 22, 25 (401 SE2d 530) (“It cannot be questioned that the city government has a significant interest in maintaining public safety by being able to control traffic on urban streets and sidewalks as well as being able to disperse its law enforcement personnel throughout the city instead of having to assign large numbers of officers to surround potential targets of the defendants’ activities.”), cert. denied, 502 U. S. 818 (112 SC 75, 116 LE2d 49) (1991).
City of Renton v. Playtime Theatres, 475 U. S. 41, 51 (106 SC 925, 89 LE2d 29) (1986).
See Quetgles, 264 Ga. at 708.
See Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 256 (297 SE2d 250) (1982).
264 Ga. at 708.
Cf. Stone Mountain, 262 Ga. at 663 (“Although the Association cannot ban speech altogether, . . . certain time, place, and manner restrictions are appropriate.”).
Reference
- Full Case Name
- SECRET DESIRES LINGERIE, INC. Et Al. v. CITY OF ATLANTA Et Al.; GAMBILL v. CITY OF ATLANTA Et Al.
- Cited By
- 2 cases
- Status
- Published