Posted by: Patricia Salkin | June 28, 2015

GA Supreme Court Holds Provision of City’s Sexually Oriented Businesses Ordinances Prohibiting Full Nudity in Sexually Oriented Businesses was Constitutionally Permissible

Beginning in 2001, Oasis Goodtime Emporium I, Inc., operated under a settlement agreement that resolved litigation with DeKalb County, which granted Oasis and other adult businesses “adult nonconforming status,” meaning that they were “permitted to sell alcoholic beverages (subject to all other laws and regulation of alcohol) and to provide adult entertainment in the form of nude dancing or live nude performances.” On March 29, 2012, the General Assembly passed Senate Bill (SB) 532, which amended the City’s charter by redefining Doraville’s boundaries, effective December 31, 2012; the new city limits encompass Oasis’s location. On October 1, 2012, Doraville enacted Ordinance No.2012–18, which established a sexually oriented business (SOB) code, located at § 6–400 et seq. of the Doraville Code of Ordinances. Under this code, sexually oriented businesses are prohibited from selling alcohol, and employees of sexually oriented businesses are prohibited from appearing fully nude, but semi-nudity is permitted. Oasis argued that SB 532, which amended the City of Doraville’s charter by redefining the City’s boundaries to encompass the land on which Oasis operates, was invalid because the notice requirement of OCGA § 28–1–14(b) was not satisfied.

As a preliminary matter, the court addressed Oasis’s challenge to the notice of the new Doraville Ordinance. It determined Oasis did not have standing to bring this claim, since only the local government whose interest OCGA § 24–1–14(b) protects—here, the City of Doraville—had standing to contest compliance with that notice requirement. The court next looked to whether the ordinance was content-neutral, or if strict scrutiny was required. It noted that the preamble to Ordinance No.2012–18, which enacted the SOB code, recites the City Council’s findings that sexually oriented businesses “are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature”; that “there is convincing evidence that sexually oriented businesses, as a category of establishments, have deleterious secondary effects and are often associated with crime and adverse effects on surrounding properties”, and Oasis failed to allege any facts to show that Doraville adopted the ordinance to target a certain message. Because Oasis failed to establish that Doraville was targeting whatever message Oasis sought to convey, as opposed to the risks of negative secondary effects associated with sexually oriented businesses in general, the court found the ordinance content-neutral.

Under the three-part test analyzing content-neutral ordinances, the court first found that the city’s “unrebutted evidence” that it “relied on specific studies which it reasonably believed to be relevant to the problems addressed by the ordinance” was sufficient to prove that the ordinance was designed to further an important government interest. The second prong was likewise satisfied because serving alcohol is not a protected expression, and Code § 6–416(d) left Oasis’s employees free to express themselves as they wished through dance or otherwise. Finally, the court held the pasties and G-string dress code required by § 6–614(a) of the Doraville Code was a constitutionally valid balance between the City’s desire to eliminate the negative secondary effects of sexually oriented businesses and the need to protect free expression.

Oasis Goodtime Emporium I, Inc v City of Doraville, 2015 WL 3658847 (GA 6/15/2015)

The opinion can be accessed at: http://www.gasupreme.us/sc-op/pdf/s15a0146.pdf


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