Gary v. City of Warner Robins, Ga., No. 02-11230.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtWilson
Citation311 F.3d 1334
PartiesHeather GARY, Plaintiff-Appellant, v. CITY OF WARNER ROBINS, GEORGIA, Defendant-Appellee.
Decision Date13 November 2002
Docket NumberNo. 02-11230.
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.

Page 1335

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

Page 1336

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

Page 1337

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

Page 1338

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...

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  • Jones v. Governor of Fla., No. 20-12003
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 11, 2020
    ...a State's interest and its means of achieving it is "at least debatable," then it survives scrutiny. Gary v. City of Warner Robins , 311 F.3d 1334, 1339 (11th Cir. 2002) (quoting United States v. Carolene Prods. Co. , 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) ). The "every dolla......
  • McCrothers Corp. v. City of Mandan, No. 20060127.
    • United States
    • United States State Supreme Court of North Dakota
    • February 28, 2007
    ...available during a presentation of nude or semi-nude dancing. See, e.g., Ben's Bar, Inc., 316 F.3d at 726; Gary v. City of Warner Robins, 311 F.3d 1334, 1340 (11th Cir.2002); Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 999 (11th Cir.1998); Department of Alcoholic Beverage Contr......
  • Lamar Advertising v. City of Douglasville, Georgia, No. CIV.A. 102CV1554-BBM.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • April 4, 2003
    ...the degree of scrutiny the court applies to the legislation depends on the basis for the classification. Gary v. City of Warner Robins, 311 F.3d 1334, Page 1337 (11th Cir.2002). Where a fundamental right or a suspect class is involved, the court reviews the classification with strict scruti......
  • Kennedy v. Avondale Estates, Georgia, No. CIV.A. 1:00-CV-1847.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 31, 2005
    ...the law, the degree of scrutiny the court applies depends upon the basis of the classification. Gary v. City of Warner Robins, Georgia, 311 F.3d 1334, 1337 (11th Cir.2002) (internal citations omitted). If a fundamental right or a suspect class is involved, the court reviews the classificati......
  • Request a trial to view additional results
50 cases
  • Jones v. Governor of Fla., No. 20-12003
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 11, 2020
    ...a State's interest and its means of achieving it is "at least debatable," then it survives scrutiny. Gary v. City of Warner Robins , 311 F.3d 1334, 1339 (11th Cir. 2002) (quoting United States v. Carolene Prods. Co. , 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) ). The "every dolla......
  • McCrothers Corp. v. City of Mandan, No. 20060127.
    • United States
    • United States State Supreme Court of North Dakota
    • February 28, 2007
    ...available during a presentation of nude or semi-nude dancing. See, e.g., Ben's Bar, Inc., 316 F.3d at 726; Gary v. City of Warner Robins, 311 F.3d 1334, 1340 (11th Cir.2002); Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 999 (11th Cir.1998); Department of Alcoholic Beverage Contr......
  • Lamar Advertising v. City of Douglasville, Georgia, No. CIV.A. 102CV1554-BBM.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • April 4, 2003
    ...the degree of scrutiny the court applies to the legislation depends on the basis for the classification. Gary v. City of Warner Robins, 311 F.3d 1334, Page 1337 (11th Cir.2002). Where a fundamental right or a suspect class is involved, the court reviews the classification with strict scruti......
  • Kennedy v. Avondale Estates, Georgia, No. CIV.A. 1:00-CV-1847.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 31, 2005
    ...the law, the degree of scrutiny the court applies depends upon the basis of the classification. Gary v. City of Warner Robins, Georgia, 311 F.3d 1334, 1337 (11th Cir.2002) (internal citations omitted). If a fundamental right or a suspect class is involved, the court reviews the classificati......
  • Request a trial to view additional results

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