2025 Emery Highway, L.L.C. v. Bibb County, Georgia
| Decision Date | 11 July 2005 |
| Docket Number | No. 5:02-CV-125-2 (CAR).,5:02-CV-125-2 (CAR). |
| Citation | 377 F.Supp.2d 1310 |
| Parties | 2025 EMERY HIGHWAY, L.L.C. d/b/a Club Exotica, a Georgia Limited Liability Company, Plaintiff, v. BIBB COUNTY, GEORGIA, et. al. Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
Steven Michel Youngelson, O. Jackson Cook, Cary S. Wiggins, Atlanta, GA, for Plaintiff.
O. Hale Almand, Jr., Amy Renee Reese, Macon, GA, for Defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Currently before the Court are the parties' cross motions for summary judgment. The present case has had an unnecessarily prolonged and frustrated history with this Court. Plaintiff 2025 Emery Highway, L.L.C. (herein "Club Exotica") is a venue that, prior to its closing on September 18, 2004, provided nude and semi-nude entertainment for its patrons. The club first initiated this action in April of 2002 seeking declaratory and injunctive relief from this Court. Since then, Club Exotica's constitutional claims and theories of relief have continued to multiply. Thus, until now, the Court's attempts to reach any resolution of the shifting theories and morphing claims raised by Club Exotica have been no more successful than an attempt to herd cats.
Yet, after a myriad of extensions of time, withdrawn motions, and prolonged delays (by both parties), this Court finally demanded that Club Exotica concisely define its claims and that all claims be brought before the Court for a long-overdue review on the merits. Club Exotica complied and filed its Second Amended Complaint [Doc. 88] in October of 2004 against Defendants Bibb County, Sheriff Jerry M. Modena, and John Doe. Club Exotica's most recent complaint, however, is still an expansive recitation of allegations. At the core of the Complaint, Club Exotica alleges that the County, through its government officials and law enforcement actions, has intentionally and repeatedly impinged upon its constitutional rights as guaranteed by the First, Fourth, and Fourteenth Amendments of the United States Constitution. Following the filing of Club Exotica's Second Amended Complaint, an additional discovery period was provided. Thereafter, both Club Exotica and the County filed motions for summary judgment [Doc.s 103 & 112]. Timely responses and replies to each motion were filed. These motions are now properly before the Court.
Having considered the arguments of the parties, the relevant authorities, and all evidence cited in support of and in opposition to the motions for summary judgment, the Court finds that the County's motion for summary judgment is due to be GRANTED in part and DENIED in part. Club Exotica's partial motion for summary judgment is due to be DENIED in full.
Summary judgment must be granted if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir.1996). Only a genuine issue of material fact will defeat a properly supported motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This means that summary judgment may be granted if there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving party or, in other words, if reasonable minds could not differ as to the verdict. See id. at 249-52, 106 S.Ct. 2505. In reviewing a motion for summary judgment, the court must view the evidence and all justifiable inferences in the light most favorable to the nonmoving party, but the court may not make credibility determinations or weigh the evidence. See id. at 254-55, 106 S.Ct. 2505; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact" and that entitle it to a judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (internal quotation marks omitted). If the moving party discharges this burden, the burden then shifts to the nonmoving party to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact (i.e., evidence that would support a jury verdict) or that the moving party is not entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(e); see also Celotex, 477 U.S. at 324-26, 106 S.Ct. 2548. This evidence must consist of more than mere conclusory allegations or legal conclusions. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991). Ultimately, summary judgment must be entered where "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
Plaintiff Club Exotica is a venue in Bibb County, Georgia, which, prior to its closing in September of 2004, provided erotic entertainment for its clientele. The club first opened for business in Bibb County in October of 2001. Because no alcoholic beverages may be sold in Bibb County except under a license issued pursuant to the County's Alcoholic Beverage Code, see Bibb County, Ga., Code § 3-21, Club Exotica applied to the Bibb County Board of Commissioners for an alcoholic beverage license before it opened. In this February of 2001 application, the applicant, "2025 Emery Highway, LLC, d/b/a Club Exotica," listed its occupation as a "restaurant/nightclub operation." (Doc. 104, Deft.Ex. 1). The County initially denied the club's application for an alcoholic beverage license, citing civil disability provisions of the Alcoholic Beverage Code, and litigation ensued. Thereafter, on October 24, 2001, an alcoholic beverage license was issued to Club Exotica, but was done so only pursuant to a settlement agreement in which Club Exotica stipulated that it would not operate as an "adult entertainment establishment." (Doc. 104, Deft.Ex. 2). Once it opened, Club Exotica began providing erotic, but not nude, dance entertainment.
On December 12, 2001, Club Exotica applied to renew its alcoholic beverage license for the 2002 calendar year. In this second application, Club Exotica listed its occupation as "restaurant services" and represented that it had operated as such since it opened in October of 2001. (Deft Ex. 3). It was recommended that this application for renewal be granted in February of 2002. (Id.)1
Shortly thereafter, on April 16, 2002, Club Exotica initiated the present action, pursuant to 42 U.S.C. § 1983, seeking a declaration of its rights and liabilities under the County's Alcoholic Beverage Code and injunctive relief barring the County from infringing on its constitutional rights with respect thereto. As a peripheral matter, the club further sought a declaration as to the constitutionality of the County's adult entertainment regulations (including provisions of its Adult Entertainment Licensing Code, Adult Entertainment Zoning Code, and Occupational Tax Code). The club included these additional constitutional challenges even though it had not applied to operate and did not claim to operate as an "adult entertainment" venue. Club Exotica pled that all of these codes were unconstitutional both on their face and as-applied to its operations.
Primarily, in this first Complaint, Club Exotica stated that it intended to lawfully provide totally nude dance entertainment under Bibb County's regulatory scheme but anticipated that the County would act arbitrarily and with discriminatory intent to bar the club from providing nude dancing entertainment, in violation of its rights as protected by the First and Fourteenth Amendments of the United States Constitution. Club Exotica explained that it desired to operate as a "mainstream performance house" as permitted by the Alcoholic Beverage Code. This provision would allow the club to both provide nude entertainment and lawfully sell alcohol to its patrons. (See Compl. [Doc. 1]).
The Bibb County Alcoholic Beverage Code specifically prohibits certain types of entertainment upon any premises licensed to sell, serve, or dispense alcohol — including "[l]ive entertainment where any person appears unclothed or in such attire, costume or clothing as to expose any portion of his or her specified anatomical areas or where such person performs acts of specified sexual activities or acts which simulate specified sexual activity...." Code § 3-71(c), (c)(2) (emphasis added). Under the Code, "specified anatomical area includes ... [l]ess than completely and opaquely covered human genitals or pubic region; cleft of the buttocks; or any portion of the female breast encompassed within an area falling below the horizontal line one would have to draw to intercept a point about the top of the areola...." § 3-71(b)(9). § 3-71(b)(10).
An exception to the prohibition against the display of specified anatomical areas is permitted, however, for any "mainstream performance house ... which derives less than twenty (20) percent of its gross annual income from the sale of alcoholic beverages." § 3-71(c)(4)....
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