Airport Book Store, Inc. v. Jackson

• Decision Date: 26 September 1978
• Docket Number: No. 33792,33792
• Citation: 242 Ga. 214,248 S.E.2d 623
• Parties: AIRPORT BOOK STORE, INC. et al. v. JACKSON et al.
• Court: Georgia Supreme Court

Page 623

248 S.E.2d 623

242 Ga. 214

AIRPORT BOOK STORE, INC. et al. v. JACKSON et al.

No. 33792.

Supreme Court of Georgia.

Argued July 11, 1978.

Decided Sept. 6, 1978.

Rehearing Denied Sept. 26, 1978.

Glenn Zell, Robert Eugene Smith, Atlanta, for appellants.

Ferrin Y. Mathews, W. Roy Mays, III, Gary S. Walker, Atlanta, for appellees.

HILL, Justice.

In January, 1977, the Atlanta City Council adopted and the Mayor approved an ordinance to require licensing of certain sex-related businesses. The ordinance uses the phrase "adult entertainment establishments" both generically and technically. Section 1 of the ordinance states that its purpose is, among other things, to provide standards for licensing adult entertainment establishments.

The ordinance then provides for licensing of five types of businesses: adult entertainment establishments, adult bookstores, adult motion picture theaters, adult mini motion picture theaters, and adult cabarets. These five categories of businesses are defined technically as set out in the footnote. ¹

The ordinance lists a dozen pieces of information, financial and otherwise, which must be furnished by the license applicant, including any further information that may be required by the license examining bureau.

The ordinance specifies as ground for denial of a license that no license or renewal license shall be issued to any applicant which has as owner, partner, officer or principal shareholder, a person convicted within 5 years "for any felony or misdemeanor of any state or of the United States or any municipal ordinance involving a crime of moral turpitude or relating to sexual offenses and related matters, to alcohol or drug offenses and related matters, or to gambling offenses and related matters." ²

The ordinance prohibits employment by licensees of persons who have within the preceding 5 years been convicted of these same offenses (except gambling). It requires that licensees' employees have permits and prohibits the issuance of such permits to persons who have within 5 years "been convicted of any felony, misdemeanor or ordinance violation involving sex related, alcohol related or drug related offenses."

The ordinance prescribes a $500 investigation fee. Although not in issue now, whether this same fee would be payable upon application for renewal of the annual license is unclear.

The ordinance provides that a license may be revoked "for cause," after notification and hearing. It contains prohibitions upon employing minors and upon permitting them to frequent adult entertainment establishments as customers. It requires existing adult entertainment establishments to obtain licenses within 6 months and it contains a severability clause.

Airport Book Store, Inc., filed suit for declaratory judgment within 3 months of adoption of the ordinance alleging that petitioner is in the business of operating adult bookstores and adult movie theaters. The complaint named the mayor and others as defendants. The ordinance was challenged as being unconstitutional on the grounds set out in the footnote. ³

Petitioner alleged that its president had a felony conviction and therefore petitioner and its president would be denied licenses under the ordinance. (The paragraph containing this allegation was denied by the defendants.)

Interventions were allowed on behalf of Gateway Books, Inc., and others engaged in operating adult bookstores and adult theaters, as well as Yield, Inc., d/b/a Harem Bathhouse, Cheshire Cat Bathhouse and Blue Fox Bathhouse, which alleged that it was engaged in operating adult entertainment establishments. See Yield, Inc. v. City of Atlanta, 241 Ga. 593, 247 S.E.2d 476 (1978). The intervenors asserted the same rights as had the original petitioner.

Neither the original petitioner nor any of the intervenors is engaged in the business of operating an "adult cabaret" as defined in the ordinance. In fact, the definition in the ordinance explains only the meaning of the word "adult," not the meaning of "cabaret." We understand that the word "cabaret" is used in its usual sense a place where alcoholic beverages are sold for consumption on the premises. There being no attack upon the ordinance made on behalf of an adult cabaret, this opinion will not deal with those establishments. Lott Invest. Corp. v. Gerbing, 242 Ga. 90, 249 S.E.2d 561 (1978). By the same token, the full support of alcoholic beverage control cannot be applied here as alcoholic beverages are not involved in the adult bookstore, theater and entertainment establishment businesses. See California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).

A hearing was held in the trial court at which a vice squad officer testified as to numerous arrests of bookstore customers for solicitation of sodomy, sodomy and public indecency occurring in the adult mini motion picture theaters (peep machines) located in the rear of four bookstores. No evidence was introduced as to adult entertainment establishments or adult motion picture theaters. The trial court upheld the validity of the ordinance, the complainants appealed to the Court of Appeals, and that court transferred the case here. Collins v. State, 239 Ga. 400(3), 236 S.E.2d 759 (1977).

Yield, Inc., with its bathhouse operations, has failed to show that it is in the business of exercising First Amendment freedoms and consequently has failed to show any First Amendment violation. Hence the ordinance cannot be said to be unconstitutional on first amendment grounds as to "adult entertainment establishments" as they are defined in the ordinance.

Appellants rely upon Coleman v. Bradford, 238 Ga. 505, 233 S.E.2d 764 (1977), and urge on appeal that "1) the ordinance is vague and indefinite and overbroad in its definitions, 2) operates as a prior restraint and is discriminating, 3) violates equal protection since other bookstores and theaters do not have to comply with the ordinance, 4) that the ordinance attempts to regulate materials which are protected by the First Amendment and therefore, the ordinance violates the First, Fifth and Fourteenth Amendments of the United States Constitution."

Coleman v. Bradford, supra, is not applicable here. The Chatham County ordinance there imposed a license fee of $1,500 on theaters showing nonobscene, X-rated films. That was three times the $500 license fee charged other movie theaters. This court found that the ordinance in Coleman had as its purpose and effect the suppression of lawful speech (films). 238 Ga. at 507-509, 233 S.E.2d 764. That is not the purpose of the Atlanta ordinance as shown by this record. In fact, the license fees imposed by the city on other bookstores and theaters are not in evidence in this case. It has not been shown that the fee of $500 set by this ordinance is not a reasonable charge to cover the cost of investigating the license application and applicant.

Licensing of bookstores and movie theaters is not a per se violation of the First Amendment. See Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961). A city may enact an ordinance, for legitimate purposes, requiring those who would exercise their freedom of speech to obtain a license in advance. Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). In Cox, the city required a license before a parade upon the public streets and charged a fee of up to $300 for issuance of the permit. The chilling gross receipts tax upon newspapers and magazines found invalid in Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936), is not involved here. The court there emphasized that those businesses which exercise freedom of the press are not thereby immune from the ordinary forms of taxation. 297 U.S. at 250, 56 S.Ct. 444. Moreover, this fee, as heretofore noted, is not a revenue measure but is a reimbursement of the administrative expense of investigating the applicant.

Having determined that licensing of bookstores and theaters is not a per se impairment of freedom of speech and that the license fee here in issue has not been shown to be invalid, we turn to Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Young involved a Detroit zoning ordinance but we find that the principal differences between it and the Atlanta ordinance are in the licensing features dealt with above, so that Young is now dispositive of several issues remaining in this case.

The Detroit ordinance in Young defined adult bookstores, adult motion picture theaters, and adult mini motion picture theaters in essentially the same terms as have been adopted by Atlanta. ⁴ The Young case involved only adult theaters but the court there held that a zoning ordinance regulating the location of "adult motion picture theaters" and treating them differently from other motion picture theaters, did not violate the First Amendment or the equal protection clause. The court held that even though a city could not suppress adult films, it could place them in a different classification from other films and regulate them. Thus, the City of Atlanta is not prohibited by freedom of speech or equal protection considerations from classifying adult bookstores, adult motion picture theaters, and adult entertainment establishments differently from other bookstores, theaters and places of entertainment, and thereafter regulating them. ⁵

The court in Young dealt with another issue present here. There the theaters complained that the definition of "adult motion picture theater" was impermissibly vague in defining such theaters as presenting material "characterized by an emphasis" on sexual matter. The court found that the theaters in question recognized that they were within the definition and hence they were not left in doubt by the alleged vagueness. 427 U.S. at 58-59, 96 S.Ct. 2440. Similarly, the bookstore complainants here have alleged that the ordinance is applicable to them. They...