S.J.T., Inc. v. Richmond County

• Decision Date: 14 June 1993
• Docket Number: No. S93A0496,S93A0496
• Citation: 430 S.E.2d 726,263 Ga. 267
• Parties: S.J.T., INC. d/b/a TJ Smiles et al. v. RICHMOND COUNTY, Georgia et al.
• Court: Georgia Supreme Court

Page 726

430 S.E.2d 726

263 Ga. 267

S.J.T., INC. d/b/a TJ Smiles et al. v. RICHMOND COUNTY, Georgia et al.

No. S93A0496.

Supreme Court of Georgia.

June 14, 1993.

Reconsideration Denied July 15, 1993.

John P. Batson, Augusta, for S.J.T., Inc.

Harry D. Revell, Robert C. Daniel, Jr., Burnside, Wall, Daniel & Ellison, Augusta, for Richmond County.

BENHAM, Justice.

This appeal is from the trial court's refusal to enjoin enforcement of an ordinance of Richmond County prohibiting certain types of entertainment, attire and conduct on premises licensed to sell, serve or dispense alcohol beverages for consumption on the premises. In seeking the injunction, appellants expressed a desire to offer entertainment (nude dancing) in their establishment which would be violative of the terms of the ordinance. After stating its intent to suppress the increased crime rate and other negative secondary effects which the experience of other locales had shown to accompany barroom nude dancing, the ordinance provides in pertinent part as follows:

Section 2. Enactment. The following types of entertainment, attire and conduct are prohibited upon any premises licensed to sell, serve, or dispense alcohol beverages for consumption on such premises within the unincorporated area of Richmond County.

(1) The employment or use of any person, in any capacity, in the sale or service of alcohol beverages while such person is unclothed or in such attire, costume or clothing, as to expose to view any portion of the female breast below the top of the areola or of any portion of the male or female pubic hair, anus, cleft of the buttocks, vulva and genitals.

(2) Live entertainment where any person appears in the manner described in paragraph (1) of this section or where such persons (or person) perform(s) acts of or acts which simulate any of the following:

(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual act which is prohibited by law.

(b) The caressing or fondling of the breasts, buttocks, anus or genitals.

(c) The displaying of the male or female pubic hair, anus, vulva or genitals.

(3) The holding, promotion, sponsoring or allowance of any contest, promotion, special night, event or any other activity where patrons of the licensed establishment are encouraged or allowed to engage in any of the conduct described in paragraphs (1) and (2) above; provided, however, that nothing contained in this Section 2 shall apply to the premises of any mainstream performance house, museum or theater which derives less than twenty (20) per cent of its gross annual income from the sale of alcohol beverages.

1. This court has recently established that nude dancing is a form of expression protected by the free speech guarantees of the constitutions of the United States and the State of Georgia. Harris v. Entertainment Systems, 259 Ga. 701, 386 S.E.2d 140 (1989). See also Barnes v. Glen Theatre, Inc., 501 U.S. 560, ----, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504, 511 (1991). In determining whether restriction on that expression is permissible, this court has applied the test stated in Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 297 S.E.2d 250 (1982), which requires that laws regulating such expression must (1) further an important government interest and (2) be unrelated to the suppression of speech, and (3) that the incidental restriction of speech must be no greater than is essential to further the government interest. See, e.g., Pel Asso. v. Joseph, 262 Ga. 904, 427 S.E.2d 264 (1993). As was the situation in Gravely v. Bacon, 263 Ga. 203, 429 S.E.2d 663 (1993); Pel Asso., supra; and Harris v. Entertainment Systems, supra, there is no dispute in this case over whether the ordinance furthers the important government interest in reducing criminal activity and preventing reductions in property values associated with adult entertainment establishments or over whether the government interest is unrelated to the suppression of speech; the controversy in the present case concerns only the third requirement in the Paramount test. The question here, therefore, is whether the ordinance is narrowly drawn to further the county's interest in preventing the illegal activity and other negative effects associated with adult entertainment establishments offering nude dancing and alcohol.

2. Appellants first argue that because the portions of the ordinance which describe prohibited attire and conduct are patterned after OCGA § 3-3-41, and this court found that statute overbroad in Harris, supra, this ordinance must also fall. However, this court did not address in Harris the descriptions of appearance and conduct to be regulated. Instead, that statute was found to be overbroad because it applied to premises and modes of communication which were not likely to produce the undesirable effects the statute was intended to prevent.

To the extent appellants' argument on appeal can be construed to constitute an "overbreadth" attack directed specifically to the descriptions of prohibited attire and conduct in the ordinance at issue, we find no merit in the argument. The restrictions on attire are sufficiently narrow to exclude ordinary clothing, describing only modes of dress intended to expose or display those parts of the human body associated with sexuality. The conduct forbidden by the ordinance is specifically sexual and does not implicate ordinary public behavior. In addition to the narrowly drawn descriptions, the ordinance is crafted to limit its scope to live persons on the premises of establishments licensed to dispense alcohol beverages, thereby avoiding any impact on private behavior. Compare Pel Asso., supra. We hold, therefore, that the descriptions of prohibited attire and conduct in the ordinance are sufficiently narrow in their scope to pass constitutional muster.

3. It is clear from a comparison of the ordinance with the holding of this court in Harris, supra, that Richmond County sought to avoid the particular overbreadth problems that were fatal to OCGA § 3-3-41. To avoid the impact on modes of expression which are not implicated in the production of negative secondary effects, the ordinance applies only to live entertainment and to employees and patrons present on the premises, and excepts from the application of the ordinance "any mainstream performance house, museum or theater which derives less than twenty (20) per cent of its gross annual income from the sale of alcohol beverages."

Appellants contend the exception for mainstream performance houses, museums and theaters, based on derivation of less than 20% of gross annual income from the sale of alcohol, is void for vagueness. In support of that argument, appellants pose a series of questions which they assert the ordinance does not adequately answer, thereby exposing them to danger of prosecution:

What is income and what sources may be considered? Can alcohol be sold at a loss, but high cover charges levied? ... Does the gross income from the alcohol income apply only during those times when a dancer is nude and alcohol is served? ... If the owner sells set-ups for alcohol, which are sold simultaneously, is the income from the set-up to be considered part of the alcohol gross income? Since no drink is 100% alcohol, is the sale and dollar volume to be pro-rated by the percentage of the alcohol in any beverage? When does the year begin? ... How is gross annual income measured? When does the measurement start? Can Plaintiffs give away beer, and include income from other sources at the same location?

In order to avoid being void for vagueness, " 'all the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.' [Cit.]" Sliney v. State, 260 Ga. 167, 391 S.E.2d 114 (1990). While the ordinance at issue here does not answer every question which might arise about the legal operation of appellants' business, it does not function in a legal vacuum which would make...