Gary v. City of Warner Robins, Ga.

• Decision Date: 13 November 2002
• Docket Number: No. 02-11230.,02-11230.
• Citation: 311 F.3d 1334
• Parties: Heather GARY, Plaintiff-Appellant, v. CITY OF WARNER ROBINS, GEORGIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

311 F.3d 1334

Heather GARY, Plaintiff-Appellant, v. CITY OF WARNER ROBINS, GEORGIA, Defendant-Appellee.

No. 02-11230.

United States Court of Appeals, Eleventh Circuit.

November 13, 2002.

Cary Stephen Wiggins, Steven M. Youngelson, Cook, Youngelson & Wiggins, Atlanta, GA, for Plaintiff-Appellant.

Charles E. Cox, Jr., Cole & Cox, LLP, Macon, GA, for Defendant-Appellee.

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

Before HULL, WILSON and FAY, Circuit Judges.

WILSON, Circuit Judge:

Heather Gary appeals the district court's order granting summary judgment in favor of the City of Warner Robins. Gary contends that the district court erred in concluding that City Ordinance 45-99 did not violate her equal protection rights under the Fifth and Fourteenth Amendments and that the ordinance did not violate her right to engage in nude dancing under the First Amendment.¹

BACKGROUND

On May 5, 1999, the City amended its Alcoholic Beverages Ordinance by adopting Ordinance 45-99. See City of Warner Robins, Ga., Code ch. 4. Ordinance 45-99 prohibits persons under the age of twenty-one from entering or working at "any establishment... which sells alcohol by the drink for consumption on premises." Id. § 4-4(b)(1)-(2).² The ordinance does not, however, prohibit persons under the age of twenty-one from entering an "eating establishment." Id. An "eating establishment" is defined as "an establishment which is licensed to sell distilled spirits, malt beverages, or wines and which derives at least two-thirds (2/3) of its total annual gross food and beverage sales from the sale of prepared meals or food." Id. § 4-4(a).

Teasers, an establishment that sells alcohol in Warner Robins, features live nude dancing, but does not serve food. In a letter dated May 20, 1999, the City notified Teasers about Ordinance 45-99 and indicated that enforcement of the ordinance would begin on June 15, 1999. At that time, Gary worked at Teasers as a nude dancer and was under the age of twenty-one.

On June 15, 1999, Gary and other employees of Teasers filed a complaint in district court, challenging the ordinance and seeking injunctive relief and damages pursuant to 42 U.S.C. § 1983.³ The district court denied the plaintiffs' request for injunctive relief and we affirmed. Anderson v. City of Warner Robins, 228 F.3d 415 (11th Cir.2000). Subsequently, the parties conducted discovery, and, at the close of discovery, the district court granted the City's motion for summary judgment. This appeal followed.

STANDARD OF REVIEW

"We review a district court's grant of summary judgment de novo applying the same standards as the district court." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1284 (11th Cir.1997). Summary judgment should be awarded when "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). Viewing the evidence in the light most favorable to the nonmoving party, we ask "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

I. Equal Protection Claim

The Equal Protection Clause requires that the government treat similarly situated persons in a similar manner.⁴ U.S. Const. amend. XIV, § 1. When legislation classifies persons in such a way that they receive different treatment under the law, the degree of scrutiny the court applies depends upon the basis for the classification. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam); Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000), cert. denied, 532 U.S. 978, 121 S.Ct. 1616, 149 L.Ed.2d 480 (2001). If a fundamental right or a suspect class is involved, the court reviews the classification under strict scrutiny. Murgia, 427 U.S. at 312, 96 S.Ct. 2562; Mason v. Lister, 562 F.2d 343, 346 (5th Cir.1977).⁵ "If an ordinance does not infringe upon a fundamental right or target a protected class, equal protection claims relating to it are judged under the rational basis test; specifically, the ordinance must be rationally related to the achievement of a legitimate government purpose." Joel, 232 F.3d at 1357.

A. Suspect Class or Fundamental Right

Ordinance 45-99 classifies persons based upon age. See City of Warner Robins, Ga., Code § 4-4(b)(1)-(2) (prohibiting persons under the age of twenty-one from entering or working at noneating establishments). Age, however, is not a suspect class. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); Mason, 562 F.2d at 346.⁶ Therefore, unless the ordinance infringes upon a fundamental right, it will be scrutinized under the rational basis test. See Joel, 232 F.3d at 1357.

"[A] fundamental right must be objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [the right] were sacrificed." Williams v. Pryor, 240 F.3d 944, 955 (11th Cir.2001) (second alteration in original) (internal quotation marks omitted). Gary contends that the ordinance infringes upon her fundamental rights of freedom of association and freedom of movement as an adult. Specifically, she alleges that the ordinance restricts her freedom of association and freedom of movement, because she cannot work in an establishment that sells alcohol until she is twenty-one, but she can draft a will,⁷ consent to sexual intercourse,⁸ and refuse medical treatment.⁹

Freedom of association is a fundamental right that encompasses two forms, namely "intimate association" and "expressive association." McCabe v. Sharrett, 12 F.3d 1558, 1562-63 (11th Cir.1994). "Intimate association" is the right to "maintain certain intimate human relationships," and "expressive association" is the "right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion." Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Freedom of movement generally is associated with the fundamental right to travel. See Kent v. Dulles, 357 U.S. 116, 125-27, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) ("The right to travel is a part of the `liberty' of which the citizen cannot be deprived without the due process of law.... Freedom of movement across frontiers in either direction, and inside frontiers as well, was part of our heritage.").

The ordinance, however, does not infringe upon Gary's freedom of association or her freedom of movement. First, there is no generalized right to associate in alcohol-purveying establishments with other adults. See City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (finding that the Constitution does not "recognize[] a generalized right of `social association' that includes chance encounters in dance halls"). Therefore, to the extent that Gary alleges that the ordinance infringes upon a generalized right to associate with other adults, her claim lacks merit.

Second, in Artistic Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306, 1308, 1311 (11th Cir.2000) (per curiam), we upheld the City's right, under Ordinance 19-97, to prohibit adult businesses from obtaining liquor licenses. Consequently, Gary no longer has a right to engage in nude dancing in an alcohol-licensed establishment in the City. See id. Thus, whatever impact Ordinance 45-99 might have had on Gary's freedoms if Ordinance 19-97 did not exist, it has no impact on those freedoms at the present time. Gary remains free to observe and engage in nude dancing, but she cannot do so in Warner Robins in establishments that primarily serve alcohol.

Therefore, because the ordinance does not involve a suspect class nor infringe upon a fundamental right, analysis under the rational basis test is appropriate. See Joel, 232 F.3d at 1357.

B. Rational Basis Test

The rational basis test¹⁰ requires that an "ordinance ... be rationally related to the achievement of a legitimate government purpose." Id. Under this test, a court gives great deference to economic and social legislation. Curse v. Dir., Office of Workers' Comp. Programs, 843 F.2d 456, 463 (11th Cir.1988); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 825 F.2d 367, 370 (11th Cir.1987) ("[G]overnmental bodies [have] wide latitude in enacting social and economic legislation; the federal courts do not sit as arbiters of the wisdom or utility of these laws."). "The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Thus, a court will not overturn the legislation "`unless the varying treatment of different ... persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.'" Price v. Tanner, 855 F.2d 820, 823 (11th Cir.1988) (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)). Moreover, the rational relationship between the means adopted and the legislation's purpose must be "at least debatable." United States v. Carolene Prods. Co., 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).

Under this highly deferential standard, we conclude that Ordinance 45-99 satisfies the rational basis test. The effect of the ordinance is to prohibit all persons under the age of twenty-one from entering establishments that primarily serve alcohol for consumption on the premises, but do not serve a specified quantity of food....