Maxim Cabaret, Inc. v. City of Sandy Springs
Maxim Cabaret, Inc. v. City of Sandy Springs
Opinion of the Court
*34Appellant Maxim Cabaret, Inc. d/b/a Maxim Cabaret is a strip club in Sandy Springs, Georgia, and appellant Theo Lambros is the club's operator, sole shareholder, and president (collectively "Maxim"). Maxim appeals from the Fulton County Superior Court's order granting summary judgment to the City of Sandy Springs on Maxim's legal challenges to city ordinances. We hold that Maxim's challenges to prior versions of the City's ordinances that have since been replaced or amended are moot; current adult business ordinances prohibiting the sale of alcohol at businesses that offer live nude entertainment constitutionally regulate negative secondary effects of strip clubs without unduly inhibiting free speech or expression; and because the City may constitutionally prohibit Maxim from obtaining a license to sell liquor on its premises under the City's adult business licensing ordinances, Maxim lacks standing to challenge the City's alcohol licensing regulations. We affirm.
I.
Lambros has owned and operated Maxim Cabaret, an adult entertainment establishment featuring nude dancing, in its current location since March 1992. The club operated in unincorporated Fulton County until December 1, 2005, when it came under the jurisdiction of the newly incorporated City of Sandy Springs. In March 2003, Maxim stopped offering full nudity and offered cabaret entertainment with its performers clothed or partially clothed. At the same time, it applied for and was granted a Fulton County license for on-premises consumption of alcoholic beverages. After experiencing a drop in profits, however, Maxim resumed operating as a full-nudity strip club several months later.
In December 2005, the Sandy Springs city council conducted hearings at which it received and considered information concerning the negative secondary effects of sexually oriented businesses. The minutes reflect that the City was "deeply and profoundly concerned" about criminal activities associated with "the commercial combination of live nudity and alcohol," including specifically "disorderly conduct, prostitution, public solicitation, public indecency, fighting, battery, assaults, drug use, and drug trafficking." The City also expressed concern with other undesirable effects on the community of such establishments, including "commercial depression of property values, an acceleration of community blight in the surrounding neighborhoods," and increased costs for law enforcement and the judicial system. Effective January 1, 2006, the City enacted several zoning, business licensing, and alcohol licensing ordinances regulating adult entertainment establishments.
In January 2006, Maxim sued the City in Fulton County Superior Court, claiming that the City's adult business regulations were unconstitutional and seeking mandamus relief, declaratory and injunctive relief, and damages.
*35Shortly after filing its first complaint, Maxim applied for a license to sell and serve alcohol on its premises, which was denied. By agreement with the City, however, Maxim has been allowed to operate with nude dancers and on-premises alcoholic beverage sales in its current location during the pendency of this litigation.
II.
During the decade-long course of this litigation in superior court, the City amended its adult business ordinances multiple times, in many cases changing or removing provisions that Maxim had alleged to be unconstitutional. Maxim also filed eight amendments to its complaint, the last of which consolidated all of its claims into a single pleading. In its eighth amended complaint, Maxim reasserted its constitutional claims regarding some of the City's ordinances that had since been amended, contending that because the original ordinances were unconstitutional and void, they could not be cured by amendment. In granting the City's summary judgment motion, the superior court found that "the general rule-that repeal of a challenged provision of law renders the challenge moot-applies." On appeal, Maxim claims that this finding was error. We disagree.
Maxim acknowledges that the City has since amended the ordinances at issue to remove or replace the purportedly unconstitutional provisions, and it has not cited to any evidence in the record showing that the complained-of provisions were ever enforced against it. Nor has it shown that there is any likelihood that the original ordinances will be re-enacted and enforced in the future. Under the circumstances, Maxim's claims regarding the previous ordinances are moot. See Shelley v. Town of Tyrone ,
Maxim's claims are not saved by its argument that its constitutional challenges to the City's original adult business regulations are not moot because the challenged ordinances were amended rather than repealed and replaced. It is true that "once a statute is declared unconstitutional and void, it cannot be saved by a subsequent statutory amendment, as there is, in legal contemplation, nothing to amend." In the Interest of R.A.S. ,
Because the challenged ordinances no longer exist and were never enforced against Maxim, the resolution of Maxim's claims concerning those ordinances "would amount to the determination of an abstract question not arising upon existing facts or rights," and the trial court correctly determined that those claims were moot. Sexual Offender Registration Review Bd. v. Berzett ,
III.
We now turn to Maxim's surviving claims regarding the constitutionality of existing adult business ordinances.
It is true that both the First Amendment and the free speech provision of the Georgia Constitution have been held to protect nude dancing as a form of expressive conduct. See City of Erie v. Pap's A.M. ,
At the outset, we reject Maxim's argument that the City's regulations prohibiting the sale of alcohol in nude dancing establishments should be subjected to strict scrutiny.
Under intermediate scrutiny, a content-neutral regulation that causes an incidental restriction on protected speech is constitutionally permissible if it furthers an important governmental interest that is unrelated to the suppression of speech, and its incidental restriction of protected speech is no greater than is necessary to further the important governmental interest. See Paramount Pictures Corp. v. Busbee ,
At city council hearings, private investigators retained by the City to conduct surveillance within adult clubs in Sandy Springs reported their observation of illegal conduct within and around the clubs, including prostitution, public lewdness, and public intoxication. Sandy Springs residents testified about negative impacts of the adult businesses on their neighborhoods, including offensive litter such as condoms and condom wrappers, discarded underwear, and adult video covers. Residents also testified regarding beer bottles and beer cans thrown in their streets and yards, and frequent late-night dangerous driving along with resulting property damage. A local real estate agent testified that it is more difficult to sell homes located near adult businesses, and that such businesses depress the property values of nearby homes.
The City also relied upon a summary of a Fulton County study concerning the negative secondary effects of local adult businesses, as well as multiple studies from other cities showing that adult businesses tend to generate crime and lower property values in nearby neighborhoods. In April 2009, when the City amended its adult business regulations, it considered additional information about the negative secondary effects of sexually oriented businesses, including an expert report on studies conducted in jurisdictions across the United States, as well as judicial decisions detailing negative secondary effects of sexually oriented businesses. The legislative record also contained information tending to show that the sale of alcohol increased the negative secondary effects associated with sexually oriented businesses.
The City's prohibition of alcohol in nude dancing establishments thus meets the first prong of the Paramount Pictures test because it "furthers the important government interests of 'attempting to preserve the quality of urban life,' and 'reduc[ing] criminal activity and prevent[ing] the deterioration of neighborhoods.' " Trop ,
Regarding the third and final prong of the Paramount Pictures test, whether the incidental restriction of protected speech is limited to that necessary to further the important government interest, Maxim's arguments are not new. We have repeatedly upheld bans on liquor sales in sexually oriented businesses as a method of decreasing the undesirable secondary effects of such businesses with minimal incidental effects on free expression. See, e.g. Oasis ,
IV.
Maxim also contends that the City's licensing ordinances impermissibly "create a nonconforming use" for purposes of the location restrictions within the ordinances. It is true that the City's adult business licensing ordinances limit the locations in which adult businesses may operate.
First, the amortization provision by its terms applies only to those adult businesses that produce a certificate of occupancy showing that they were operating in compliance with all other laws and regulations when the City's location restrictions were enacted. The City denies that Maxim has ever produced the required certificate of occupancy, and Maxim has not shown otherwise by citation to the record on appeal. Second, even if the amortization provision were applicable to Maxim, the five-year grace period would have long since expired, rendering Maxim's challenge to the provision moot. Maxim's amortization challenge thus fails.
V.
Maxim's final contention is that the trial court erred in finding that it lacked standing to challenge the City's alcohol code. To mount that kind of attack, a party must show that it has suffered some injury from the challenged provisions. See Parker v. Leeuwenburg ,
Judgment affirmed.
All the Justices concur.
The City's definition of "adult entertainment establishment" encompasses businesses like Maxim that feature nude dancing.
The trial court found that because the City had not enforced its alcohol ban or the adult entertainment business location restrictions against Maxim during the litigation, Maxim had incurred no damages with respect to the licensing and location regulations. Maxim does not contest this finding on appeal.
Maxim's filings here and at the trial court level are extremely confusing and it is somewhat difficult to discern whether it is challenging current as well as previous adult business ordinances. Because the trial court appeared to believe that current ordinances were under challenge, and the City agreed in its March 7, 2018 letter brief to this Court, we conclude that the current ordinances are, in fact, at issue. But we encourage litigants to be as clear as possible in their filings to avoid any such questions.
For the first time on appeal, Maxim contends that the U.S. Supreme Court's decision in Reed v. Town of Gilbert , --- U.S. ----,
Maxim also argues that the City's zoning and business licensing ordinances together virtually eliminate viable sites for adult businesses within the City. But Maxim affirmatively waived this issue in the trial court, stating in response to the City's motion for summary judgment that it had previously informed the City that "Plaintiffs would not be pursuing their claims against the City in regard to insufficient reasonable alternative avenues of communication. Therefore, Plaintiffs have not and will not argue said claims."
Maxim does not challenge the trial court's conclusion that municipalities may constitutionally enforce location restrictions by requiring nonconforming businesses to change their business practices, change locations, or close within a reasonable time.
Concurring Opinion
I concur fully in the Court's decision, which is a faithful application of our precedents. I write separately to express my concern with our approach to constitutional interpretation reflected in those precedents.
I agree that Maxim's free speech claims under the United States Constitution and the Georgia Constitution should be rejected. As the Court's decision explains, their federal claim fails. And Maxim has not articulated a single reason why the Georgia Constitution should be interpreted as giving them any greater rights than the United States Constitution, and so their claim under the Georgia Constitution necessarily also fails. But our cases holding that the Georgia Constitution protects nude dancing at all rest on a shaky premise.
Although we have extended state constitutional protection to nude dancing for nearly 30 years, we have done so without any actual analysis of the Georgia Constitution. We first held that the Georgia Constitution's Speech Clause protects nude dancing in Harris v. Entertainment Systems, Inc.,
And ever since, when the question of the Georgia Constitution's protection of nude dancing has arisen, we've relied on Harris or its progeny. See, e.g., Pel Asso, Inc. v. Joseph ,
The text of the Georgia Constitution's Speech Clause is quite different from the Speech Clause of the First Amendment. See Ga. Const. Art. I, Sec. I, Para. V ("No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty."); see also Tucker v. Atwater , No. S18C0437, --- Ga. ----,
And "the freedom of speech" that the Speech Clause protects must be understood in the light of what that term meant at the time it was adopted. See Olevik v. State ,
In any event, in Harris, two Justices of this Court dissented from the holding that the Georgia Constitution's Speech Clause protects nude dancing:
The first Constitution of Georgia, in the year 1777, guaranteed freedom of the press. The 1877 Constitution guaranteed freedom of speech. I cannot believe that our forebears, in writing these protections, intended to vest in each Georgian a constitutional right to dance naked for tips in a barroom. Nor do I think that the citizens of Georgia who ratified the Constitution of 1983 intended to preserve or to create any such "right."
Harris ,
Admittedly, Justice Weltner's dissent wasn't exactly the fulsome analysis of the "language, history, and context" of the Speech Clause that is required. See Olevik , 302 Ga. at 234 (2) (b) n.3,
But again, as in Oasis Goodtime Emporium, we don't need to reconsider our precedent today, because even under that precedent, Maxim loses. And, indeed, in any case in which the plaintiff brings claims under both the United States and Georgia Constitutions, there may not be a real reason to reconsider that precedent. If future plaintiffs bring both claims and lose under the United States Constitution, they'll lose under the Georgia Constitution regardless of whether it protects nude dancing the same or less than the United States Constitution; reconsideration of our precedent under the Georgia Constitution would matter in such a case only if we concluded that our Constitution was more *41protective in this context. And if plaintiffs bring both claims and win under the United States Constitution, the scope of the Georgia Constitution is immaterial-an ordinance that violates the United States Constitution is invalid regardless of whether it also violates the Georgia Constitution.
Nevertheless, if an appropriate case were to arise, we should again consider the question we answered in Harris, but this time in the light of the Georgia Constitution's language, history, and context.
I am authorized to state that Justice Nahmias and Justice Blackwell join in this concurrence.
Reference
- Full Case Name
- MAXIM CABARET, INC. d/b/a Maxim Cabaret v. CITY OF SANDY SPRINGS, Georgia.
- Cited By
- 10 cases
- Status
- Published