Goldrush II v. City of Marietta

• Decision Date: 17 March 1997
• Docket Number: Nos. S96A1494,S96A1496 and S96A1497,s. S96A1494
• Citation: Goldrush II v. City of Marietta, 267 Ga. 683, 482 S.E.2d 347 (Ga. 1997)
• Parties: , 97 FCDR 874 GOLDRUSH II et al. v. CITY OF MARIETTA et al. VARSALONA'S ITALIAN RESTAURANT d/b/a Boomer's et al. v. CITY OF MARIETTA et al. TUDOR d/b/a Cyprus Lounge v. CITY OF MARIETTA et al.
• Court: Georgia Supreme Court

Page 347

482 S.E.2d 347

267 Ga. 683, 97 FCDR 874

GOLDRUSH II et al. v. CITY OF MARIETTA et al.

VARSALONA'S ITALIAN RESTAURANT d/b/a Boomer's et al. v. CITY OF MARIETTA et al.

TUDOR d/b/a Cyprus Lounge v. CITY OF MARIETTA et al.

Nos. S96A1494, S96A1496 and S96A1497.

Supreme Court of Georgia.

March 17, 1997.

Reconsideration Denied April 3, 1997.

O. Jackson Cook, Brookins & Cook, Atlanta, Denmark Groover, Jr., Groover & Childs, Macon for appellants in No. S96A1496.

Steven M. Youngelson, Atlanta, for appellants in No. S96A1496.

Alan I. Begner, Cory G. Begner, Atlanta, for appellants in No. S96A1497.

Haynie & Litchfield, Douglas R. Haynie, Emilie K. Petrovich, Marietta, Barnhart, O'Quinn & Williams, Michael A. O'Quinn, Robert K. Haderlein, Atlanta, for appellees.

Michael J. Bowers, Attorney General, Daniel M. Formby, Deputy Attorney General, John B. Ballard, Jr., Senior Assistant Attorney General, W. Wright Banks, Assistant Attorney General, amicus curiae.

BENHAM, Chief Justice.

Appellants are establishments which provide adult entertainment and are located within the City of Marietta. For several years, each establishment has applied for and received annual licenses issued by the City authorizing the businesses to provide adult entertainment and to serve alcoholic beverages. ¹ In January 1995, acting pursuant to the authority granted by a 1994 amendment to the Georgia Constitution, the Marietta City Council passed an amendment to the city's adult entertainment ordinance which amendment provided that a liquor license would not be issued for a location at which was performed entertainment that required the issuance of an adult entertainment license. In effect, the amended adult entertainment ordinance banned alcohol in adult entertainment establishments by requiring an applicant to choose between obtaining a liquor license or obtaining a license to provide adult entertainment. The amended ordinance also provided that licenses previously granted would not be subject to the amendment until December 31, 1995, "at which time all licensees within the City of Marietta shall be subject to this provision, including those licensees licensed before the effective date hereof."

Following passage of the 1995 amendment to the city's adult entertainment ordinance, each of the appellants filed a separate action against the city, its council members, and its mayor, seeking a declaratory judgment on the constitutionality of certain provisions of Marietta's ordinances; injunctive relief against enforcement of the ordinances; and damages. Appellant Cyprus Lounge also sought a writ of mandamus requiring the city to issue to it adult entertainment and liquor licenses for 1996. The trial court consolidated the three cases and, after an extended hearing, granted summary judgment to the defendants and denied injunctive relief to the plaintiffs. Each of the businesses and the person to whom the adult entertainment and liquor licenses were issued appealed the trial court's judgment to this Court, and we have consolidated the three appeals. ²

1. The 1995 Marietta ordinance amendment was enacted following the ratification of an amendment to the Georgia Constitution which is now embodied in Article III, Section VI, Paragraph VII. The constitutional amendment gives the State of Georgia "full and complete authority to regulate alcoholic beverages and to regulate, restrict, or prohibit activities involving alcoholic beverages[,]" including the regulatory authority given the States by the Twenty-first Amendment to the U.S. Constitution. The constitutional amendment goes on to delegate this regulatory authority to the counties and municipalities of Georgia "for the purpose of regulating, restricting, or prohibiting the exhibition of nudity, partial nudity, or depictions of nudity in connection with the sale or consumption of alcoholic beverages...." Before the trial court, as well as on appeal, appellant Boomer's contends that the constitutional amendment is a fatally overbroad unconstitutional infringement upon the freedom of expression guaranteed by the First Amendment to the U.S. Constitution.

The constitutional amendment's authorization to the State to "regulate, restrict, or prohibit activities involving alcoholic beverages" and its delegation of regulatory authority to local governments to regulate, restrict, or prohibit nudity, partial nudity, or depictions of nudity, without regard to whether the activity limited or the nudity proscribed is constitutionally protected, run counter to the holdings in Harris v. Entertainment Systems, 259 Ga. 701, 386 S.E.2d 140 (1989), and Pel Asso v. Joseph, 262 Ga. 904, 427 S.E.2d 264 (1993). In those cases, this court found a statute and an ordinance overbroad because one went beyond "prohibiting nude dancing in bars" and the other applied to mainstream performance houses and private conduct as well as barroom nude dancing. Despite the appearance of similar overbreadth in the 1994 constitutional amendment, we decline to brand the constitutional amendment as unconstitutionally overbroad because we perceive a fundamental distinction between it and the statute and ordinance which were found lacking in Harris and Pel Asso: the constitutional amendment is not a self-executing amendment, but requires the passage of legislation to give it effect.

"A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law."

Davis v. Burke, 179 U.S. 399, 403, 21 S.Ct. 210, 212, 45 L.Ed. 249 (1900), quoting Cooley, Constitutional Limitations. The constitutional amendment at issue here is not self-executing because it "merely indicates a line of policy or principle without supplying the means by which such policy or principle are to be carried into effect," and because "it appears from the language that subsequent legislation was contemplated to carry it into effect." 16 C.J.S., Constitutional Law, § 46. The 1994 constitutional amendment "clearly anticipates" the enactment of legislation by the General Assembly or a local governing body to implement the principles set forth in the amendment. Cox v. French, 277 Ark. 134, 640 S.W.2d 786 (1982). See J.W.A. v. State of Georgia, 233 Ga. 683, 212 S.E.2d 849 (1975). Because implementation of the constitutional amendment requires legislative enactment, the constitutional amendment is not effective until the legislation is passed. State v. Pendergrass, 63 Haw. 633, 633 P.2d 1113 (1981). See also DeKalb County v. Allstate Beer, 229 Ga. 483(2), 192 S.E.2d 342 (1972). Consequently, while the wording of the constitutional amendment authorizes enactment of local legislation that would be condemned as overbroad, it is the language of the enacted local legislation, not the constitutional amendment, which must be examined for overbreadth. That being so, we decline to declare the constitutional amendment unconstitutionally overbroad.

2(a). Appellant Varsalona asserts that the 1994 constitutional amendment violates the Georgia constitutional provision prohibiting the presentation to voters of a proposed constitutional amendment containing more than one subject matter. 1983 Ga. Const., Art. X, Sec. I, Par. II.

"The test of whether ... a constitutional amendment violates the multiple subject matter rule is whether all of the parts of ... the constitutional amendment are germane to the accomplishment of a single objective. [Cit.]" Carter v. Burson, 230 Ga. 511(3), 198 S.E.2d 151 (1973). See also Sears v. State, 232 Ga. 547(5), 208 S.E.2d 93 (1974). It is apparent that the general purpose of the amendment is the regulation of alcoholic beverages. Because the portion of the amendment delegating to local governmental units the authority to regulate the exhibition of nudity in connection with the sale of alcoholic beverages is germane to the general subject of the regulation of alcoholic beverages, the amendment does not violate the prohibition against multiple subject matters.

(b) Varsalona also contends that the wording of the ballot ³ concerning the constitutional amendment deceived the voters of Georgia, resulting in a violation of the due process guarantees of the Fourteenth Amendment to the U.S. Constitution. We disagree.

"[T]his court ... [conducts] only a minimal review of ballot language if the state followed all of the constitutionally and statutorily required procedures for amending the constitution...." Donaldson v. Dept. of Transportation, 262 Ga. 49, 51, 414 S.E.2d 638 (1992). There is no contention in the case at bar that the prescribed amendment procedure was not followed. "The only limitation on the General Assembly in drafting ballot language is that the language be adequate to enable the voters to ascertain which amendment they are voting on. [Cit.]." Id. See also Burton v. Georgia, 953 F.2d 1266, 1269 (11th Cir.1992) ("As long as citizens are afforded reasonable opportunity to examine the full text of the proposed amendment, ... substantive due process requires no more than that the voter not be deceived [by the ballot language] about what amendment is at issue.") We conclude that the language used on the ballot is not susceptible to appellant's attack for it clearly enabled the voters to ascertain what amendment they were voting on.

3. Since the constitutional amendment which authorized the passage of the 1995 amendment to Marietta's ordinance has withstood Boomer's constitutional attack, we next focus our attention on the analytical approach to be taken with regard to the amended ordinance in light of the passage of the constitutional amendment. In Harris v. Entertainment Systems, 259 Ga. 701(1b), 386 S.E.2d 140, supra, this Court concluded that the State's exercise of its...