Artistic Entertainment v. City of Warner Robins

• Decision Date: 28 May 2003
• Docket Number: No. 02-10216.,02-10216.
• Citation: 331 F.3d 1196
• Parties: ARTISTIC ENTERTAINMENT, INC., a Georgia Corporation d.b.a Teasers, Stephen R. Dewberry, Plaintiffs-Appellants, v. CITY OF WARNER ROBINS, Donald Walker, Individually and in his capacity as Mayor of the City of Warner Robins, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

331 F.3d 1196

ARTISTIC ENTERTAINMENT, INC., a Georgia Corporation d.b.a Teasers, Stephen R. Dewberry, Plaintiffs-Appellants, v. CITY OF WARNER ROBINS, Donald Walker, Individually and in his capacity as Mayor of the City of Warner Robins, et al., Defendants-Appellees.

No. 02-10216.

United States Court of Appeals, Eleventh Circuit.

May 28, 2003.

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Steven M. Youngelson, Cary Stephen Wiggins, Cook, Youngelson & Wiggins, Atlanta, GA, for Plaintiffs-Appellants.

Charles E. Cox, Jr., Cole & Cox, LLP, Macon, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and NELSON^*, District Judge.

PER CURIAM:

In 1997 the City of Warner Robins, Georgia, adopted two ordinances aimed at prohibiting the consumption of alcoholic beverages at adult entertainment facilities. The first ordinance, Ordinance 18-97, titled "An Ordinance Regulating Adult Businesses" (the "Adult Ordinance"), among other things, established a licensing scheme for operation of an "adult business" within city limits and prohibited the sale and consumption of alcoholic beverages on the premises of an adult business.¹ The second ordinance, Ordinance 19-97, titled "An Ordinance to Amend the Warner Robins Alcoholic Beverage Ordinance" ("Alcohol Ordinance"), amended the City's alcohol licensing laws to prohibit the selling, serving, or dispensation of alcoholic beverages by any "adult business."² The City Council approved the ordinances after an evidentiary hearing in which council members had an opportunity to review studies and testimony of state officials regarding the combined effects of alcohol and adult entertainment.

The plaintiffs/appellants, who own and operate an adult entertainment establishment that sells alcohol and offers nude dancing in the City, brought this action to challenge both ordinances on constitutional grounds.

I. PROCEDURAL HISTORY

This is the third appeal in this litigation. Initially, this court vacated the district court's order enjoining the implementation of the ordinances, finding that it had not accorded sufficient weight to the evidentiary basis that supported adoption of the ordinances. In the second appeal, we concluded the Adult Ordinance and the Alcohol Ordinance were content-neutral and subject to the intermediate level of scrutiny established by United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and that the Warner Robins City Council had an adequate basis for concluding that a proscription on the sale and consumption of alcohol at adult businesses would reduce the crime and other social costs associated with those businesses. Artistic Entm't, Inc. v. City of Warner Robins, 223 F.3d 1306, 1308-10 (11th Cir.2000). We also concluded that the Adult Ordinance was not unconstitutionally vague, but that it did operate as an unconstitutional prior restraint on expression because it did not provide for an applicant's right to begin operating his business within a reasonable time if the City failed to act on his application as required by Redner v. Dean, 29 F.3d 1495 (11th Cir.1994). Artistic Entm't, 223 F.3d at 1310-11.

After remand, the City enacted Ordinance 57-00, entitled "An Ordinance to Amend the Ordinance Regulating Adult Businesses" ("Amending Ordinance").³ The Amending Ordinance re-adopted the Adult Ordinance in all respects, but additionally provides in pertinent part:

If the City Council has not approved or disapproved an application for a license within forty-five (45) days from the date such application was received by the City Clerk, then on the expiration of the forty-fifth (45th) day: (1) the application shall be approved and the City Clerk shall immediately issue the license for which application was made, and (2) the applicant shall have the right to begin operating in the manner allowed by the license for which application was made.

In subsequent proceedings, the district court found Artistic was not entitled to damages for the period during which the City required it to refrain from offering alcoholic beverages in conjunction with nude dancing.⁴ Agreeing with Artistic that the entire Adult Ordinance was unenforceable, but concluding the Alcohol Ordinance was legitimately enforced, the district court then invited the parties to file motions "related to the issue of whether the prior restraint problems with the Adult Ordinance have been cured" by the adoption of the Amending Ordinance.⁵

The City filed a motion for summary judgment arguing that the Amending Ordinance had cured the prior restraint problem. Artistic filed a motion to reopen discovery and a motion to amend its complaint, contending: the Amending Ordinance did not cure the prior restraint problem; new evidence would show the Amending Ordinance lacked any evidentiary basis as required by the United States and Georgia constitutions; and, the Amending Ordinance was not enacted in accordance with the notice and hearing procedures required by Georgia zoning laws.⁶ In its response to the City's motion for summary judgment, Artistic reiterated its arguments that the Amending Ordinance failed to cure the prior restraint problem and violated the Georgia zoning laws.⁷ Artistic invited the district court to consider the summary judgment facts and legal argument in conjunction with its motion to supplement, noting "the issues raised and argued in the motions overlap to a large degree."⁸

In the context of these pending motions, and after accepting evidence in support of Artistic's motion, the district court granted Artistic's motion to file an amended complaint⁹ but, finding the Amending Ordinance was valid, also granted the City's motion for summary judgment on all claims. Finding that additional discovery would not be helpful, the district court denied Artistic's request to reopen discovery. This appeal followed.

II. ISSUES

Artistic argues the district court granted summary judgment sua sponte on the supplemented claims, without providing notice or an opportunity for Artistic to come forward with evidence to show that the supplemented claims created a genuine issue of material fact. Artistic also argues the district court improperly denied its request to reopen discovery. Artistic further argues the Amending Ordinance is invalid because: (1) the unconstitutional portions of the Adult Ordinance were not severable, so that the entire Adult Ordinance was void, and could not be adopted by reference in the Amending Ordinance; (2) the adoption of the Amending Ordinance violated Georgia's Zoning Procedures Law; and (3) adoption of the Amending Ordinance violated the First Amendment because the City lacked a proper evidentiary basis to support its passage. Finally, Artistic argues the district court erred in holding the Alcohol Ordinance enforceable even though portions of it adopt by reference definitions contained in the void Adult Ordinance.

III. DISCUSSION

A. The Grant of Summary Judgment

We have previously emphasized that Rule 56's notice provision "is not an unimportant technicality, but a vital procedural safeguard .... [T]he notice provision ensures that litigants will have at least ten days in which to formulate and prepare their best opposition to an impending assault upon the continued viability of their claim or defense." Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir.1997) (citations omitted). We have, however, distinguished between sua sponte grants of summary judgment in cases involving purely legal questions based on complete evidentiary records, and cases involving factual disputes where the nonmoving party has not been afforded an adequate opportunity to develop the record.¹⁰ For instance, in Massey, in reversing the district court's sua sponte grant of summary judgment, we distinguished Black Warrior Electric Membership Corp. v. Mississippi Power Co., 413 F.2d 1221 (5th Cir.1969), emphasizing that Black Warrior involved a sua sponte grant of summary judgment on a purely legal issue, while the issue upon which the district court granted summary judgment in Massey involved a question of fact which the non-moving party had not been afforded an adequate opportunity to develop. Massey, 116 F.3d at 1418; Black Warrior Electric, 413 F.2d at 1226. Likewise, in Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir.1999), we made it clear that where a legal issue has been fully developed, and the evidentiary record is complete, summary judgment is entirely appropriate even if no formal notice has been provided.¹¹ Id. at 1204.

In the instant case, we conclude that the district court's grant of summary judgment was proper. In doing so, we do not retreat from our previous admonition that summary judgment should be granted sua sponte only in those circumstances in which the dismissed claims have been fully developed in the evidentiary record and the non-moving party has received adequate notice. Here, the district court's April 16, 2001, order made it clear that both parties were expected to come forward with motions "related to" the constitutionality of the Adult Ordinance following the adoption of the Amending Ordinance. Furthermore, although the district court had no formal motion for summary judgment on the new claims before it, and did not formally notify Artistic that it was considering the new claims in the summary judgment proceedings, the merits of the claims were fully briefed and evidence was accepted and considered in conjunction with the simultaneous motion to amend. Under these circumstances, Artistic had sufficient notice that the court might rule on the supplemented claims. Furthermore, even if the district court had formally told Artistic that the new claims would be addressed in the summary judgment proceedings, we are convinced that the outcome would not have been different. As discussed below, the district court...