Starship Enterprises of Atlanta, Inc. v. Charlotte J. Nash, Gwinnett County Board of Commissioners, in Her Individual Capacity

FIRST DIVISION

BARNES, P. J.,

GOBEIL and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

October 14, 2020

In the Court of Appeals of Georgia

A20A1961. STARSHIP ENTERPRISES OF ATLANTA, INC. v.

NASH et al.

BARNES, Presiding Judge.

Starship Enterprises of Atlanta, Inc. (“Starship”) filed the present action

challenging Gwinnett County’s adult establishments ordinance and named as

defendants the members of the Gwinnett County Board of Commissioners

(“Commissioners”) in their individual capacities. Starship sought a declaratory

judgment that the ordinance was unconstitutional and an injunction to prevent its

enforcement. The trial court granted summary judgment to the Commissioners and

denied summary judgment to Starship, concluding that the claims against the

Commissioners were barred by the doctrine of legislative immunity. Starship now

appeals, contending that the trial court erred in granting summary judgment in favor

of the Commissioners. For the reasons discussed below, we affirm.

Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” OCGA § 9-11-56 (c). “A de novo standard of

review applies to an appeal from a grant of summary judgment, and we view the

evidence, and all reasonable conclusions and inferences drawn therefrom, in a light

most favorable to the nonmovant.” Hamburger v. PFM Capital Mgmt., 286 Ga. App.

382, 382 (649 SE2d 779) (2007).

Factual Background. So viewed, the record reflects that since 2006, Starship

has owned and operated two stores in Gwinnett County, Georgia, which sell sexual

devices, sexually explicit media items, and other merchandise. On October 27, 2015,

the Commission adopted an updated ordinance for “adult establishment[s],” including

“sex paraphernalia store[s]” (the “Ordinance”). Under the Ordinance, a “sex

paraphernalia store” is defined as a “commercial establishment where more than 100

sexual devices are regularly made available for sale or rental,” other than “any

establishment located within an enclosed regional shopping mall or any pharmacy or

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establishment primarily dedicated to providing medical products.”1 The Ordinance

requires that all sex paraphernalia stores and other adult establishments operating

within the county obtain an adult establishment license. They also must satisfy certain

zoning and land use requirements. Neither of Starship’s Gwinnett County stores had

an adult establishment license or met the zoning requirements for such

establishments.

In February 2016, the Gwinnett County Department of Planning and

Development, Licensing and Revenue Division (“Licensing Division”), received

Starship’s applications to renew its occupational tax certificates for its two Gwinnett

County stores.2 The Licensing Division returned the applications to Starship on the

1

The Ordinance defines a “sexual device” as:

[A]ny three (3) dimensional object designed for stimulation of the male

or female human genitals, anus, buttocks, female breast, or for

sadomasochistic use or abuse of oneself or others and shall include

devices commonly known as dildos, vibrators, penis pumps, cock rings,

anal beads, butt plugs, nipple clamps, and physical representations of the

human genital organs. Nothing in this definition shall be construed to

include devices primarily intended for protection against sexually

transmitted diseases or for preventing pregnancy.

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An occupational tax certificate functions as a general business license in the

County.

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ground that the certificates could not be granted until the stores obtained adult

establishment licenses.

A dispute between Starship and the Licensing Division ensued as to whether

Starship’s Gwinnett County stores “regularly made available for sale or rental” more

than 100 sexual devices so as to meet the definition of a “sex paraphernalia store” and

thus of an “adult establishment” under the Ordinance. Based on its inspections of the

stores, the Licensing Division claimed that Starship had more than 400 sexual devices

available for sell or rental at one store and more than 500 such devices at the other

store, and that, as a result, the stores were improperly operating as sex paraphernalia

stores without adult establishment licenses.

Ultimately, Starship, although disagreeing with the Licensing Division’s

interpretation of the Ordinance, removed merchandise from the two stores to avoid

classification as sex paraphernalia stores. After conducting another walkthrough of

the two premises, the Licensing Division in July 2016 renewed the occupational tax

certificates for the stores without requiring adult establishment licenses. The

certificates stated that they did not authorize the operation of an adult establishment

on the premises and that operation of such an establishment was prohibited and would

be unlawful.

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Lawsuit against Gwinnett County. In January 2017, Starship filed suit against

Gwinnett County in the Superior Court of Gwinnett County, alleging that the

Ordinance was unconstitutional under the Due Process and Equal Protection Clauses

of the Georgia Constitution. Starship sought a declaratory judgment that the

Ordinance was unconstitutional and interlocutory and permanent injunctions

prohibiting enforcement of the Ordinance. The County filed its answer and

counterclaim seeking to enjoin Starship from operating a sex paraphernalia store

outside the proper zoning district and without an adult establishment license. The

County alleged that Starship’s stores were again operating as sex paraphernalia stores

by virtue of their trade in sexual devices and that Starship had a practice of repeatedly

violating the Ordinance.

During the course of the litigation between Starship and the County, the

Supreme Court of Georgia decided Lathrop v. Deal, 301 Ga. 408 (801 SE2d 867)

(2017). In Lathrop, the Supreme Court held that “the doctrine of sovereign immunity

extends generally to suits against the State, its departments and agencies, and its

officers in their official capacities for injunctive and declaratory relief from official

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acts that are alleged to be unconstitutional.”3 Id. at 409. After Lathrop was decided,

Starship voluntarily dismissed its constitutional claims against the County in

November 2017, but the County’s counterclaim for an injunction remained pending.

The superior court subsequently granted the County’s motion for summary

judgment and permanent injunction, and in doing so, ruled on the merits of Starship’s

constitutional claims. Starship appealed, and in an unpublished opinion, this Court

affirmed the superior court’s grant of a permanent injunction against Starship but

reversed the entry of summary judgment on Starship’s constitutional claims,

concluding that those claims were not properly before the superior court following

their voluntary dismissal. See Starship Enterprises of Atlanta v. Gwinnett County,

Case No. A18A1492 (decided March 14, 2019) (unpublished).

The Present Lawsuit. After voluntarily dismissing its constitutional claims

against the County, Starship filed the present action in the Superior Court of Gwinnett

3

The Georgia Constitution’s extension of sovereign immunity to “the state and

its departments and agencies” applies to counties. Gilbert v. Richardson, 264 Ga. 744,

747 (2) (452 SE2d 476) (1994). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e)

(“Except as specifically provided in this Paragraph, sovereign immunity extends to

the state and all of its departments and agencies. The sovereign immunity of the state

and its departments and agencies can only be waived by an Act of the General

Assembly which specifically provides that sovereign immunity is thereby waived and

the extent of such waiver.”); Layer v. Barrow County, 297 Ga. 871, 871 (1) (778

SE2d 156) (2015) (“As a general rule, counties enjoy sovereign immunity.”).

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County in December 2017. Starship raised the same constitutional claims and sought

the same declaratory and injunctive relief as it had in its prior suit against the County.

However, Starship named as defendants the Commissioners solely in their individual

capacities.

The Commissioners answered and later filed a motion for summary judgment

on several grounds, including that the claims against them were barred by the doctrine

of legislative immunity. According to the Commissioners, “Starship [was] suing the

members of the Board because that body voted to pass the Ordinance, a quintessential

legislative function.” Starship opposed the Commissioners’ motion and also filed a

cross-motion for summary judgment. Following a hearing, the trial court granted the

Commissioners’ motion for summary judgment and denied Starship’s cross-motion

for summary judgment, concluding that legislative immunity barred Starship’s claims.

On appeal, Starship challenges the trial court’s grant of summary judgment to

the Commissioners, arguing that the doctrine of legislative immunity does not bar its

constitutional claims for declaratory and injunctive relief brought against the

Commissioners in their individual capacities. We disagree.

Under the doctrine of legislative immunity, members of the General Assembly

are afforded immunity from “any type of legal action” brought against them in

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connection with acts performed by them in their legislative capacities. Village of

North Atlanta v. Cook, 219 Ga. 316, 319-320 (1) (133 SE2d 585) (1963). See Ga.

Const. of 1983, Art. III, Sec. IV, Par. IX (“The members of both houses shall be free

from arrest during sessions of the General Assembly, or committee meetings thereof,

and in going thereto or returning therefrom, except for treason, felony, or breach of

the peace. No member shall be liable to answer in any other place for anything spoken

in either house or in any committee meeting of either house.”). Legislative immunity

also applies to local officials acting in their legislative capacities.4 Williams v. DeKalb

County, 308 Ga. 265, 279 (4) (d) (840 SE2d 423) (2020). See Bogan v. Scott-Harris,

523 U.S. 44, 48-49 (II) (118 SCt 966, 140 LE2d 79 (1998) (noting long-established

principle under the common law that local legislators are afforded absolute immunity

for their legislative activities). Legislative immunity applies in cases seeking

prospective relief, including claims for a declaratory judgment or an injunction. See

Village of North Atlanta, 219 Ga. at 319-321 (1), (2) (legislators “could not properly

be made parties defendant in an action for declaratory judgment asserting the

4

Legislative immunity for local officials can be abrogated by statute. Williams

v. DeKalb County, 308 Ga. 265, 279 (4) (d) (840 SE2d 423) (2020). But Starship has

not pointed to any statute abrogating legislative immunity under the circumstances

of this case. Compare id. (holding that Georgia’s Open Meeting Acts abrogates

legislative immunity for local officials).

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unconstitutionality of a provision in an Act of the General Assembly passed at a

session of the General Assembly of which they were members, solely on the basis of

acts done by them in their official capacity,” nor could they “be required to introduce

[particular] legislation” or enjoined “from exercising their unrestricted power to

introduce any proposed legislation which they deem to be for the best interest of their

constituents”). See also Saleem v. Snow, 217 Ga. App. 883, 886 (1) (b) (460 SE2d

104) (1995) (physical precedent only) (“Individuals acting in a legislative capacity

are absolutely immune from suit.”).

It sometimes can be difficult to draw the line between legislative functions and

other types of governmental functions. See Perdue v. Baker, 277 Ga. 1, 13 (6) (586

SE2d 606) (2003). But, in enacting the Ordinance, the Commissioners clearly were

engaged in a core legislative function. See Schumacher v. City of Roswell, 301 Ga.

635, 638 (1) (803 SE2d 66) (2017) (“The enactment of ordinances is at the core of the

City Council’s legislative functions.”); Perdue, 277 Ga. at 14 (6) (“The core

legislative function is the establishment of public policy through the enactment of

laws.”). And Starship has failed to show that the Commissioners played any role with

respect to the Ordinance other than exercising their legislative authority to adopt it.

Accordingly, under the doctrine of legislative immunity, the Commissioners were

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immune from “any type of legal action” brought against them in connection with the

Ordinance, including an action, as in the present case, seeking declaratory or

injunctive relief. See Village of North Atlanta, 219 Ga. at 319-320 (1), (2).5

In so ruling, we note that Starship’s reliance on Lathrop is misplaced. As part

of its decision in Lathrop, our Supreme Court explained that the doctrine of official

immunity does not bar suits for declaratory or injunctive relief brought against county

officers in their individual capacities. 301 Ga. at 443-444 (III) (C). But Lathrop

provides no basis for concluding that legislative immunity no longer applies to

officials exercising their legislative functions. Indeed, the Supreme Court in Lathrop

expressly pointed out: “We address only the doctrine of official immunity that applies

to suits against state officers and employees generally. Special doctrines of immunity

may apply in suits against particular state officers and employees, but we do not

address, for instance, judicial immunity, legislative immunity, or prosecutorial

5

As counsel for the Commissioners asserted at the hearing on the summary

judgment motions,

They could have sued the official charged with enforcing the county’s

ordinance or the zoning ordinance. They didn’t do that. They sued

legislators. They sued the five commissioners who sit and vote on

legislation. And that is an absolute bar to their suit. And that is clear

grounds for summary judgment.

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immunity.” Id. at 435 (III) (C), n. 25. Lathrop therefore does not control the outcome

here.

For these combined reasons, the trial court committed no error in concluding

that legislative immunity barred Starship’s claims and thus in granting summary

judgment to the Commissioners.

Judgment affirmed. Gobeil and Pipkin, JJ., concur.

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