Top Shelf v. Mayor & Aldermen for Savannah

• Decision Date: 27 December 1993
• Docket Number: No. CV 493-261.,CV 493-261.
• Citation: 840 F. Supp. 903
• Parties: TOP SHELF, INC., d/b/a/ Classy Kats, Plaintiff, v. The MAYOR AND ALDERMEN FOR the CITY OF SAVANNAH, and the City of Savannah, a municipal corporation, Defendants.
• Court: U.S. District Court — Southern District of Georgia

840 F. Supp. 903

TOP SHELF, INC., d/b/a/ Classy Kats, Plaintiff, v. The MAYOR AND ALDERMEN FOR the CITY OF SAVANNAH, and the City of Savannah, a municipal corporation, Defendants.

No. CV 493-261.

United States District Court, S.D. Georgia, Savannah Division.

December 27, 1993.

Roy L. Allen, Jr. and Diane Marie Morrell, Savannah, GA, for plaintiff.

James B. Blackburn and Abda L. Qullian, Savannah, GA, for defendants.

ORDER AND MEMORANDUM

NANGLE, District Judge.

The above-captioned action is plaintiff's second attempt at relief in this Court. As a result of a pending state criminal proceeding, the first action was dismissed pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Top Shelf, Inc. v. Mayor and Aldermen for the City of Savannah, 832 F.Supp. 361 (S.D.Ga.1993) ("Top Shelf I"). Following this ruling, plaintiff dismissed the appeal of its criminal conviction and filed the instant action.

At bench trial on November 15, 1993, the parties asked the Court to consolidate the preliminary and permanent injunction stages pursuant to Fed.R.Civ.P. 65(a)(2), and to issue a ruling on the merits based upon the briefs submitted in the instant matter and the stipulations and exhibits filed in the previous action. Accordingly, the Court renders the following finding of facts and conclusions of law as required by Fed.R.Civ.P. 52(a).

FINDINGS OF FACTS

Plaintiff Top Shelf, Inc. ("Top Shelf") is a Georgia corporation doing business as Classy Kats in Savannah, Chatham County, Georgia. Classy Kats is licensed by the defendant City of Savannah ("the City") to serve alcoholic beverages. It offers nude dancing.

On July 22, 1993, the Mayor and Aldermen for the City adopted and codified an ordinance as 6-1222(h) in the City's code. It reads in pertinent part as follows:

No license holder or agent of any license holder shall allow any person, regardless of such person's business or personal relationship (or lack thereof) to the license holder, to initiate or continue, in or around the establishment:

(i) the employment or use of any person in any capacity in the sale or service of alcoholic 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 or genitals;

(ii) live entertainment where any person appears in the manner described in preceding sub-paragraph of this subsection or where any person engages in or simulates any of the following acts:

(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;

(iii) the holding, promotion, sponsoring or allowance of any contest, promotion, special night, event or any other activity where patrons of the license-holding establishment are encouraged or allowed to engage in any of the conduct, or to be attired as described in the preceding sub-paragraph of this subsection.

This subsection shall not apply nor prohibit the live performance of legitimate plays, operas, or ballets at mainstream theaters, concert halls, museums or educational institutions holding a license, which derive less than twenty percent (20%) of its sic gross receipts from the sale of alcoholic beverages.¹

Severability. If any section, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, it is the intent of the Mayor and Aldermen that the court assume that the Mayor and Aldermen would have enacted these provisions without such invalid or unconstitutional provisions and that such decision should not affect the validity of the remaining portions of this Ordinance.

Amendment to Pl.'s Pet. for Prelim.Inj. (hereinafter referred to as "6-1222(h)" or "the ordinance").

In enacting 6-1222(h), the City considered studies and findings of other municipalities and urban counties, including College Park, Georgia; Richmond County, Georgia; Atlanta, Georgia; Manatee County, Florida; Indianapolis, Indiana; Austin, Texas; Phoenix, Arizona; and Los Angeles, California. In addition to considering other areas' findings as to nude dancing, the Mayor and Aldermen considered the studies and recommendations of the city's Metropolitan Planning Commission relating to the zoning and land use effects of adult entertainment establishments, evidence presented to the Mayor and Aldermen in public hearings, and the experience of the Savannah Police Department. These studies indicated that the following adverse effects flowed from nude dancing: prostitution, violent and sex-related offenses, drug trafficking and use, illegal dispensing of alcoholic beverages, disorderly conduct, depression of property values in the surrounding neighborhood, increased expenditure for and allocation of law enforcement personnel, increased burden on the judicial system due to increased criminal behavior, and acceleration of community blight. While discussions at the July 8, 1993, meeting of the Savannah City Council indicate that the ordinance corresponded with the state's definition of lewd conduct, the ordinance itself does not purport to regulate obscenity or lewdness. Instead, the City enacted it to further "public health, safety and welfare."

On July 28, 1993, Steve Richardson, the manager and holder of the alcoholic beverage license for Classy Kats, was cited by officers of the Savannah Police Department for violating 6-1222(h). After a hearing on the citation in the Recorder's Court of Savannah and Chatham County, Richardson was found guilty and fined $500.00; Richardson then appealed this determination to the Superior Court of Chatham County. Before the appeal was adjudicated, Top Shelf filed Top Shelf I, which was dismissed under the abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Richardson dropped his Superior Court appeal, and Top Shelf filed the instant action.

Since Richardson's citation on July 28, 1993, Classy Kats has not offered nude entertainment and has attempted to comply with 6-1222(h). Its business has suffered from substantial decreases in customers and profits.

CONCLUSIONS OF LAW

Top Shelf mounts three challenges to 6-1222(h): It asserts that the ordinance violates the Equal Protection Clause by having separate standards for mainstream and non-mainstream licensees, violates the First Amendment and the Due Process Clause by failing to adequately define mainstream establishments, and violates the Due Process Clause by setting forth an arbitrary and capricious standard in the mainstream exception.

Top Shelf challenges 6-1222(h) solely under the Constitution of the United States. The City's ordinance is virtually identical to one upheld under the Georgia Constitution by the Georgia Supreme Court in S.J.T., Inc. v. Richmond County, 263 Ga. 267, 430 S.E.2d 726 (Ga.), cert. denied, ___ U.S. ___, 114 S.Ct. 601, 126 L.Ed.2d 567 (1993); cf. Harris v. Entertainment Sys., Inc., 259 Ga. 701, 386 S.E.2d 140 (1989) (mandating inclusion of mainstream exception to comply with free expression guarantees under Georgia Constitution). A challenge under the United States Constitution entails a different analysis, namely consideration of the Twenty-first Amendment.²See Harris, 386 S.E.2d at 142 (noting "because Georgia has no constitutional equivalent to the Twenty-First Amendment, the State's police power, though possibly not limited under the U.S. Constitution, is limited by Georgia's constitution.").

The Twenty-first Amendment to the United States Constitution provides that "the transportation or importation into any State ... for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." U.S. Const. amend. XXI, § 2. The state's broad power under the Twenty-first Amendment to ban entirely the sale of alcoholic beverages includes the lesser power to ban the sale of liquor on premises where topless dancing occurs despite possible First Amendment implications. New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (per curiam); see also City of Newport v. Iacobucci, 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986) (per curiam); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). Under this authority, ordinances similar to the "non-mainstream" portions of 6-1222(h) regularly have been upheld. See, e.g., LaRue, 409 U.S. at 111-112, 93 S.Ct. at 393-394 (considering regulation similar to 6-1222(h)(ii)); Iacobucci, 479 U.S. at 93, n. 1, 107 S.Ct. at 2600, n. 1; Bellanca, 452 U.S. at 714, n. 1, 101 S.Ct. at 2600, n. 1; Geneas, 911 F.2d at 580-581, n. 1; Lanier v. City of Newton, 842 F.2d 253, 255, n. 1; Fillingim v. Boone, 835 F.2d 1389, 1391, n. 1 (11th Cir.1988).

1. The equal protection claim

While the City clearly may ban the conduct described in the "non-mainstream" portions of 6-1222(h), the Court must determine whether the City may distinguish between mainstream and non-mainstream performances on the ordinance's face. To determine the constitutionality of this differentiation under the Equal Protection Clause of the Fourteenth Amendment, Top Shelf advocates application of the strict scrutiny standard given the ordinance's implication of First Amendment rights. The Court concludes, however, that rational relationship scrutiny is appropriate in light of the applicability of the Twenty-first Amendment in this matter.

The Twenty-first Amendment "outweighs any First Amendment interest in nude dancing"³ and allows the governing body to completely ban nude dancing. Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975)....