Opposition Brief — Shretta v. City of Marietta

Supreme Court brief1997

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No. 96-2035 | |

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In The

Supreme Court of the United States

October Term, 1996

VARSALONA’S ITALIAN RESTAURANT d/b/a BOOMER’S

and PATRICK VARSALONA,

Petitioners,

VS.

THE CITY OF MARIETTA, BETTY L. HUNTER, M.C. PETE

WALDREP, JR., DANIEL O. COX, SR., E. PAUL SABISTON,

JAMES C. DODD, FRANK T. AYERS, PHILLIP GOLDSTEIN

and ANSLEY L. MEADERS,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Georgia

BRIEF IN OPPOSITION FOR RESPONDENT

CITY OF MARIETTA

MICHAEL A. O’QUINN DOUGLAS R. HAYNIE

BARNHART, O’ QUINN Counsel of Record

& WILLIAMS, LLP EMILIE K. PETROVICH

162 Keys Ferry Street HAYNIE & LITCHFIELD, P.C.

McDonough, Georgia 30253 222 Washington Avenue

(770) 898-0333 Marietta, Georgia 30060

(770) 422-8900

Attorneys for Respondent

City of Marietta

71611

utz

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 pagelst

ervices, inc.

LIST OF INTERESTED PARTIES

The Petitioners are Varsalona’s Italian Restaurant d/b/a

Boomer’s and Patrick Varsalona as listed in the caption.

The Respondents are correctly identified in the caption with

the exception of Phillip Goldstein which is misspelled. The

correct spelling is “Philip”. The Respondent City of Marietta

has no parent or subsidiary companies. The City of Marietta is

a political subdivision of the State of Georgia.

TABLE OF CONTENTS

Page

bist GF DARAE COED 2 oc ccsvecsonceseusveseoan i

po se PPE Pe a eee ii

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SUMNGERONE GE TUIRTEOEGR onc ccccnsasonvesesossees 1

manent 6S BOGE oc cccccteccsnedsevsasanesec 1

A. Course of Proceedings and Disposition of the Case

DORE 2 cccccccvetcuscucennetbeteebaseses ]

B. Corrections of Misstatements in the Petition .. 2

Reasons for Denying the Writ ..................4.. 3

I. The Georgia Supreme Court Properly Concluded

That The Ordinance At Issue Was “Content-

Neutral” And That The Respondents Met Their

Burden Of Proof In Showing That The

Predominate Purpose Behind The Ordinance’s

Enactment Was To Prevent Pernicious Secondary

Effects Associated With Adult Entertainment

I er A Oe 3

Il. The Due Process Clause Of The Fourteenth

Amendment Is Not Implicated In This Case As

There Is No Vested Property Right In The Renewal

Of A License Which Expires On An Annual Basis.

o0nvccencechocendedeuaeeueea eens ee 13

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Atkins v. Parker, 472 U.S. 115 (1985) ..........005. 18

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) .... 4,5

Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2704, 48 L. Ed.

EES ene ae a i4

Board of Regents v. Roth, 408 U.S. 564 (1972) ..... 14, 16, 17

Cabo Distrib. Co. v. Brady, 821 F. Supp. 582 (N.D. Cal.

OE STEER Sp OE Re ae a 16

Chambers d/b/a “Neon Cowboy” v. Peach County, 467

ee eB cane 4,7

City of Ramsey v. Holmberg, 548 N.W. 2d 302 (Minn. App.

eo eee ee) 4

City of Renton v. Playtime Theaters, Inc., 457 U.S. 4]

ES EE CG Se ee Oe ee ae 4,5, 8, 18

Club Southern Burlesque v. City of Carrollton, 265 Ga.

Ee 8 4

Cleveland Board of Education v. Loudermill, 470 U.S. 532,

105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) ......... 14

Contents

Discotheque v. City Council of Augusta, 264 Ga. 623, 449

SE BRE LED ca ncsravsadeescsdcvasacuanes

Dudley’s Food & Spirits v. College Park, 265 Ga. 618,

GSE Ee. Mae CHOP ER KC 6 6 dvin'n 5kA 5 ewEs CeO

Ficarra v. Department of Regulatory Agencies, 849 P.2d

Ua SE du netiake aed b00000005400ReuEReS

Goldrush II, Inc. v. City of Marietta, 267 Ga. 683, 482

S.E. 2d 347 (Ga. 1997), reconsideration denied, April

3, 1997, petition for cert. filed, (U.S. June 26, 1997)

GIR, FRED nccacstccscncdesseasecveetanees

ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413

(8th Cir.), cert. denied, _ U.S. __, 115 S. Ct. 578, 130

| + | 2... | Peres ere. Ter Tere

Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985)

*eeseeveeeveeveeeeeeeeeveeeeewreeeeeeeeeeeeeeeeeeeee

Mitchell v. Com’rs of Com’n on Adult Ent. Est., 802 F.

Supp. 1112 (D. Del. 1992), 10 F.3d 123 (3rd Cir. 1993)

North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d

441 (7th Cir. 1996), cert. den.,__ U.S. __ (1997) citing

Young v. American Mini Theatres, 427 U.S. 50 ....

Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 297

DE: Be ENED bn kaeesGaunetveseces 3, 10, 11,

Page

12, 13

12, 18

Contents

Page

Phillips v. Borough of Keyport, 107 F.3d 164 (3rd Cir. Es

PETE 25.06:5 tiie tbasadtiansneseeaanaanen ths 13

Ranch House, Inc. v. City of Anniston, 678 So. 2d 745

GEA. TD ao Ktns ch wededgandgs sane eende way 9

S.J.T. Inc. v. Richmond County, 263 Ga. 267, 430 S.E. 2d

PRUE 00 04 008840465 68h axddiadsbletnees 16

United States v. O’Brien, 391 U.S. 367 (1968) ... 8, 10, 11, 18

Statutes Cited:

Be ras he 85 6 60 Fi5bn PARNSGA Ae weees os l

ee TIE PETE: PETER TERT eee reer re 14

ee eee re an 18

Marietta City Code § 8-2-200(A) .......0..ceeeeee. 14

Marietta City Code § 8-8-2-130(A)(10) ............. 15

Marietta City Code § 8-20-1970 2... 2... ec ccc cc cscs 15

United States Constitution Cited:

I I ce 4,6, 10,11, 13

Fourteenth Amendment ...................... 6, 13, 14, 16

ee PT IE ode son cudocusadacawennns 14

Contents

Rule Cited:

ED GE TO BAGS 0s cc ccccvavenstustvenens

Other Authority Cited:

Article ITI, Section VI, ¥ VII of the Constitution of the

TE GE acc bid nddamannedsedeennehees

APPENDIX

Appendix A — Code of Ordinance of the City of Marietta,

ROCER, DOGEOD BFOOS a0. 5 vice weenseaveseves

Appendix B — Annual Business License of Varsalona’s

Italian Restaurant d/b/a Boomer’s ...............

Appendix C — Article III, Section VI, Paragraph VII of

the Constitution of the State of Georgia ..........

Appendix D — Official Code of Georgia Annotated,

DOOR SF once bade tbw akin bts Bane

The Respondents, City of Marietta et al., hereby oppose

the petition of Petitioners, Varsalona’s Italian Restaurant d/b/a

Boomer’s and Patrick Varsalona for a writ of certiorari to review

the decision of the Georgia Supreme Court decided March 17,

1997, and request that the Court deny the petition for the reasons

set forth below. The Georgia Supreme Court opinion is reported

as Goldrush II, Inc. v. City of Marietta, 267 Ga. 683, 482 S.E.

2d 347 (Ga. 1997), reconsideration denied, April 3, 1997,

petition for cert. filed, (U.S. June 26, 1997) (No. 96-2035). For

the convenience of the Court, all citations to the opinion of the

Georgia Supreme Court will be to the opinion attached as

Appendix 1-32 of the petition.

The opinion of the Cobb County Superior Court filed April

2, 1996 is unreported and all references to that opinion will be

to the opinion attached as Appendix 33-62 of the petition.

STATEMENT OF JURISDICTION

This Court has jurisdiction over questions I and II presented

by Petitioners pursuant to 28 U.S.C. § 1257(a). Notwithstanding,

Respondents incorporate their jurisdictional objections regarding

any questions over the procedures at the public hearing of

January 19, 1995. See page 18 of Opposition Brief to petition

of Mukesh Shretta et al. objecting to jurisdiction over question

Ill.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition of the Case Below

This petition represents the second petition for writ of

certiorari from consolidated appeals before the Georgia Supreme

Court.' Respondents reference and incorporate as if fully set

1. Initially, three adult entertainment clubs filed suit against

(Cont'd)

forth herein, their Brief in Opposition to the petition of Mukesh

Shretta et al. The factual and procedural background of this case

is summarized in Respondents’ first Opposition Brief and more

fully set forth in the Georgia Supreme Court opinion attached

to the petition as Appendix 1-32. Further, the arguments

advanced by these Petitioners are substantially similar to those

already advanced by Petitioners, Mukesh Shretta et al. in their

petition.

B. Correction of Misstatements in the Petition

Pursuant to United States Supreme Court Rule 15.1,

Respondents also bring the following misstatements of facts

contained in the petition to the Court’s attention:

Petitioners mislead this Court by continually stating that

there were two dissents to the Georgia Supreme Court opinion.

The Georgia Supreme Court affirmed the grant of summary

judgment to Respondents by the trial court with Justice Sears

being the lone dissenter. Petitioners filed a Motion for

Reconsideration which the Georgia Supreme Court denied.

Justice Sears and Justice Carley dissented to the denial of the

Motion for Reconsideration. Justice Carley’s dissent, however,

cannot be construed as a separate dissent or as a joinder in Justice

Sears’ dissent. Justice Carley simply dissented from the denial

of the Motion for Reconsideration, but gave no reasons for his

dissent.

(Cont'd)

Respondents challenging the amendment to the City’s ordinance, and the cases

were consolidated in the Superior Court of Cobb County. The cases were

then decided in consolidated appeals before the Georgia Supreme Court.

Petitioners Mukesh Shretta et al. filed their petition on June 12, 1997 and

Respondents filed their Opposition Brief on July 14, 1997. In the interim,

Petitioners Varsalona’s Italian Restaurant et al. filed their petition on June

26, 1997. The third adult entertainment club, Cyprus Lounge, did not file a

petition.

Petitioners also make the same mistake made by Petitioners

Mukesh Shretta and Gold Rush II, d/b/a Club Taj Mahal in their

petition by failing to attach a correct copy of the ordinance

passed by the City of Marietta and at issue in this case. The

differences between the ordinance set forth in the petition and

the correct ordinance as passed by the Marietta City Council

are set forth in Respondents’ Opposition Brief to the petition of

Mukesh Shretta et al. Respondents include the correct copy of

the ordinance in its Opposition Brief. See Appendix A.

REASONS FOR DENYING THE WRIT

This case is the latest entry in Georgia’s free expression

jurisprudence in the context of nude dancing which began with

the landmark case of Paramount Pictures Corp. v. Busbee, 250

Ga. 252, 297 S.E. 2d 250 (1982). The Cobb County Superior

Court and the Georgia Supreme Court both devoted substantial

time and resources to reviewing the issues in this petition, and

correctly determined that the City’s adult entertainment

ordinance was constitutional. As the petition raises no new issues

for this Court’s review, the petition should be denied.

THE GEORGIA SUPREME COURT PROPERLY

CONCLUDED THAT THE ORDINANCE AT ISSUE WAS

“CONTENT-NEUTRAL” AND THAT THE RESPON-

DENTS MET THEIR BURDEN OF PROOF IN SHOWING

THAT THE PREDOMINATE PURPOSE BEHIND THE

ORDINANCE’S ENACTMENT WAS TO PREVENT

PERNICIOUS SECONDARY EFFECTS ASSOCIATED

WITH ADULT ENTERTAINMENT ESTABLISHMENTS.

Petitioners initially argue that review is warranted because

this Court has not addressed a case involving nude dancing and

the First Amendment since Barnes v. Glen Theatre, Inc., 501

U.S. 560 (1991). Petitioners also claim that certiorari should be

granted because there was no majority opinion in Barnes and

therefore, the decisions of the lower courts have been

inconsistent. All such claims are without merit.

It is undisputed that the Barnes’ decision yielded no majority

opinion’, and that the decision has sparked much academic

debate over the concurring and dissenting opinions of the nine

Justices, but it is simply untrue that the decisions of the lower

federal and state courts concerning regulation of nude dancing

have been inconsistent since Barnes. There is no authority to

support Petitioners’ arguments, and Petitioners cite none.

Petitioners also fail to delineate the alleged inconsistencies. That

is because the established precedent set by this Court in the

landmark case of City of Renton v. Playtime Theaters, Inc. , 457

U.S. 41 (1985) has been consistently followed by the federal

and state courts,’ and this Court’s opinion in Barnes did not in

any way alter the majority opinion in Renton that:

2. It was clear, however, that the majority of Justices agreed that nude

dancing is considered “expressive conduct” within the outer perimeters of

the First Amendment. Barnes, 501 U.S. 560 (1991) (plurality opinion).

However, that is not to say that such expressive conduct may not be restricted

or regulated in any way. Chambers d/b/a “Neon Cowboy” v. Peach County,

467 S.E. 2d 519, 521 (Ga. 1996).

3. See ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th

Cir.), cert. denied, __ U.S. __, 115 S. Ct. 578, 130 L. Ed. 2d 493 (1994); City

of Ramsey v. Holmberg, 548 N.W. 2d 302 (Minn. App. 1996), cert. denied,

__U.S __ (1997); Mitchell v. Com’rs of Com'n on Adult Ent. Est., 802 F.

Supp. 1112 (D. Del. 1992), 10 F.3d 123, 133 (3rd Cir. 1993); Dudley’s Food

& Spirits v. College Park, 265 Ga. 618, 458 S.E. 2d 823 (1995); Club Southern

Burlesque v. City of Carrollton, 265 Ga. 528, 457 S.E. 2d 816 (1995). It is

clear that the federal and state courts have consistently held that under City

of Renton, a city may rely on the experience of, and studies produced by,

other cities regarding the adverse secondary effects linked with adult

businesses in passing ordinances to address such problems. Renton, 457 U.S.

at 51.

—————————<——_eranenOeeeee

The First Amendment does not require a city,

before enacting an ordinance, to conduct new

studies or produce evidence independent of

that already generated by other cities, so

long as whatever evidence the city relies upon

is reasonably believed to be relevant to the

problem that the city addresses.

457 U.S. at 51.

In fact, Justice Souter’s concurring opinion in Barnes

expressly rejects a requirement of local affirmative evidence of

secondary effects and reinforces the conclusion of this Court

that a city is not required to litigate the issue of secondary effects

in every case. See Barnes at 584-85. A city is simply required

to prove that it considered specific evidence of pernicious

secondary effects and that the city reasonably believed such

evidence to be relevant to the problems addressed by the City.

Renton at 51.

Petitioners’ allegations that Respondents were required to

go beyond the requirements established in Renton and reaffirmed

in Barnes are unsupported by current authority, and Petitioners

present no compelling reason for this Court to alter this well-

established precedent.

In this case, an incident which occurred after enactment of

the ordinance illustrates that Respondents were justified in

relying on the studies of other communities which detail the

pernicious secondary effects of alcohol and adult entertainment.

On July 19, 1996, a patron entered the Cyprus Lounge, one of

the adult entertainment clubs in the city limits*, and consumed

4. Cyprus Lounge was an appellant in the consolidated appeals before

the Geurgia Supreme Court but did not file a petition for certiorari.

alcoholic beverages for many hours while viewing nude dancing.

The intoxicated patron left the Cyprus Lounge and was involved

in a collision with another vehicle in which the driver was

seriously injured and the driver’s wife was killed. The patron

entered a guilty plea to the charges® and is currently serving his

sentence.

Petitioners further allege that the real purpose behind the

ordinance was to censor and suppress free expression. Such

allegations ignore the abundant evidence in the record, and the

practical applicability of the ordinance. Petitioners chide the

trial court for granting summary judgment claiming that

“contrary evidence” existed. Petitioners also state that there was

abundant evidence in the record that the true purpose was

censorship. However, this alleged “evidence” is never set forth

in the petition. That is because it does not exist. Rather,

Petitioners write generally about the constitutional principles

of the First and Fourteenth Amendment, and the disservice to

the legal system. It is apparent that Petitioners hope their trumped

up allegations along with reference to the “pillars” of the

Constitution will catch this Court’s attention without the benefit

of supporting authority. That is simply not enough. The record

speaks for itself and illustrates that both the trial court and the

Georgia Supreme Court had ample evidence to support the grant

of summary judgment to Respondents.

The evidence showed that the Respondents did not rely

solely on its preamble as to the purpose of the ordinance.*®

Although the Georgia Supreme Court does reference the

preamble to the ordinance, as correctly pointed out by

5. See footnote 14 of Respondents’ Opposition Brief to petition of

Mukesh Shretta et al.

6. See Opinion of Cobb County Superior Court, Appendix at 48; Opinion

of Georgia Supreme Court, Appendix at 15.

Petitioners, the court has recognized that reliance on the verbiage

in an ordinance’s preamble is not enough. See Chambers d/b/a

“Neon Cowboy” v. Peach County, 467 S.E. 2d 519, 521 (1996);

Discotheque v. City Council of Augusta, 264 Ga. 623, 449 S.E.

2d 608 (1994). In both those cases, the Georgia Supreme Court

rejected as insufficient the cities’ reliance on the preamble alone

to support the constitutionality of an ordinance regulating adult

entertainment. The Georgia Supreme Court specifically

recognized that the facts of this case differed from those in

Chambers and Discotheque in that the Respondents did not rely

solely on the statement in its preamble as to the purpose of the

ordinance. Rather, Respondents affirmatively proved that they

considered specific evidence of the peinicious secondary effects

of adult entertainment establishments.

Prior to adoption of the ordinance at issue, Respondents

held a public hearing lasting approximately four (4) hours and

the transcript detailing the evidence considered by Respondents

is one hundred and seventy four (174) pages in length. The

Respondents were supplied with ten (10) studies from other

communities consisting of five hundred and six (506) pages

detailing the pernicious secondary effects of the sale of alcohol

in adult entertainment establishments, and a 1991 Atlanta

Business Chronicle article on the adult entertainment business

in Atlanta, Georgia. Eighteen (18) persons, including four

lawyers representing the adult entertainment clubs, testified

before the Marietta City Council regarding the amendment to

the City’s ordinance. The owner of a “juice bar” also testified

that the presentation of nude dancing without alcohol was an

economically viable venture. An expert real estate appraiser

testified that the property values surrounding the adult

entertainment establishments had declined. The Chief of Police

testified at length regarding the issue of crime in addition to

presenting his report. After consideration of all testimony and

evidence, Respondents voted six to one to amend its ordinance.

The Georgia Supreme Court specifically considered and

rejected Petitioners’ allegations that an improper motive

motivated the enactment of the ordinance finding that there was

insufficient evidence as a matter of law’, and relying on the

precedent of this Court that it is improper to further inquire into

judicial motives. In United States v. O’Brien, 391 U.S. 367

(1968), this Court concluded that:

judicial inquiry into legislative motives or

purposes is a “hazardous matter” for what

motivates one legislator to make a comment

about a law is not necessarily what motives

fellow legislators to enact the law.

Id. at 383.

Recognizing this important principle, this Court concluded

in Renton that if it is established that the “predominate intent”

of the enacted ordinance was to combat or avoid pernicious

secondary effects, then the legislation is deemed to be content-

neutral. Jd. at 48. With these standards in mind, the Georgia

Supreme Court properly concluded that Respondents met their

burden of proving that the predominate goal in enacting the

ordinance was to combat the pernicious secondary effects

associated with adult entertainment establishments and

therefore, the ordinance was content-neutral.

7. Petitioners contend in their petition that the Georgia courts ignored

all evidence of alleged “censorship”. Petitioners do not state what “evidence”

they are referring to, but Respondents assume they are referring to the

newspaper quotes of the Mayor and several council members. The Georgia

courts did not ignore this evidence but in fact specifically reviewed this

evidence and concluded that it was insufficient as a matter of law to prove

improper motive, and did not override the overwhelming evidence in the record

that the “predominate” purpose behind the ordinance was the prevention of

the pernicious secondary effects associated with adult entertainment

establishments. See Appendix 14-16.

The Georgia Supreme Court also considered the affirmative

evidence which disputed the allegations of censorship. The

affidavits of six council members and the Mayor were submitted

into evidence in which each member testified under oath that

they considered the numerous studies presented to them prior

to enactment of the ordinance and that they reasonably be!ieved

such evidence to be relevant to the problems addressed by the

city. Further, each member testified taat their personal feelings

did not enter into their legislative decision.

After consideration of all the testimony and evidence, the

Respondents voted six to one to enact the ordinance at issue.

See Appendix A of Respondents’ Brief in Opposition to the

Petition of Mukesh Shretta et al. Looking at the text of the

ordinance at issue, it is clear that the ordinance is not directed

at speech or expression but at a type of conduct. The ordinance

does not prohibit or restrict nude dancing in any way, but simply

prohibits the consumption of alcohol to occur simultaneously

with adult entertainment. See Ranch House, Inc. v. City of

Anniston, 678 So. 2d 745 (Ala. 1996).* Accordingly, despite

Petitioners claims to the contrary, the Petitioners are free to

continue the operation of their business as adult entertainment

establishments, but without the consumption of alcohol by their

patrons. See Appendix at 56. The ordinance does not eliminate

or prohibit nude dancing.’

8. In Ranch House, the Alabama Supreme Court upheld an ordinance

almost identical to Respondents finding that the ordinance was a valid exercise

of the state’s police powers. In a concurring opinion, Justice Cook observed

that this type of ordinance only restricts the activities of the spectators and

not the dancers’ freedom of expression. Jd. at 747.

9. As long as there is a “full opportunity for expression in all its varied

forms to convey a desired message and that there [is] full opportunity for

everyone to receive the message”, then the free speech guarantees of the First

(Cont'd)

In analyzing the case, the Georgia Supreme Court

recognized Petitioners’ First Amendment rights and applied

Georgia’s traditional First Amendment analysis set forth in the

landmark case of Paramount Pictures v. Busbee, 250 Ga. 252,

S.E. 2d 250 (1982)."° This three-prong analysis provides the basis

for determining the constitutionality of an ordinance regulating

adult entertainment, and states that an ordinance will be upheld

if: (1) it furthers an important government interest; (2) the

government interest is unrelated to the suppression of speech;

and (3) if the incidental restriction on speech is no greater than

is essential to the furtherance of that government interest.

Paramount at 256. The Georgia courts properly applied the

Paramount test to the facts of this case and concluded that the

City’s interest in reducing crime and preventing the deterioration

of neighborhoods were important government interests; such

(Cont'd)

Amendment are satisfied. See North Avenue Novelties, Inc. v. City of Chicago,

88 F.3d 441, 444 (7th Cir. 1996), cert. den., __ U.S. __ (1997) citing Young v.

American Mini Threatres, 427 U.S. 50, 76 (J. Powell, concurring). In North

Avenue Novelties, the Seventh Circuit upheld an ordinance regulating adult

uses finding that the ordinance offered reasonable opportunity to disseminate

speech and therefore, complied with the First Amendment. Specifically, the

Seventh Circuit concluded that the ordinance did not prohibit sexually explicit

expression, but merely required that such expression take place in specified

areas and in a non-concentrated manner. Such restrictions were found to be

content-neutral, served a legitimate government interest, and did not

unreasonably limit alternative avenues of communication. /d. at 444. The

same is true in this case: the ordinance at issue does not prohibit adult

entertainment but merely requires that such entertainment not be combined

with the sale or consumption of alcohol at the same location. The Georgia

Supreme Court properly concluded that the ordinance was content-neutral

and met the three prong test of Paramount Pictures. See Appendix at 16-18.

10. As set forth in Respondents’ Opposition Brief to the petition of

Mukesh Shretta et al., Georgia’s free expression analysis is derived from the

framework established by this Court in United States v. O’Brien, 391 U.S.

367 (1968). See footnote 2 of first Opposition Brief.

ee eae ee

interests were unrelated to the suppression of speech; and that

the ordinance’s application was sufficiently narrow to achieve

such interests.'' Therefore, the enactment of the ordinance was

a proper exercise of the City’s police powers.

It is clear that the Georgia courts have noi “rubberstamp[ed]

restrictive legislation . . .” as alleged by Petitioners, but carefully

considered the evidence in the record and applied Georgia’s well-

established First Amendment analysis as derived from this

Court’s framework in O’Brien and adopted by the Georgia courts

in Paramount Pictures. The ordinance in this case met all three

prongs of the test. Although Petitioners may disagree with the

result, the Georgia courts properly determined that the ordinance

was constitutional. The Georgia courts adhered truthfully and

with great candor to the long-standing principles which serve

as pillars to the U.S. Constitution, and preserved the First

Amendment rights of Petitioners. The ordinance in this case

does not ban expression or “unpopular speech”. Nor does it

restrict nude dancing. Rather, the ordinance prohibits the

consumption of alcohol on the premises of an adult

entertainment establishment.

Petitioners’ speculation that the approach allegedly adopted

by the Georgia courts in accepting the pronouncement of the

government itself might be read as a basis for banning hostile

political speech is unfounded. In fact, Petitioners miss the mark.

The Georgia courts did not rely solely on the City’s assertion

that a legitimate purpose lay behind the enactment of the

ordinance. Nor did the courts rely on the stated purpose in the

preamble. The trial court held an extensive hearing and received

evidence as to the purpose of the ordinance. The court then

11. It is interesting to note that Petitioners fail to ever reference the

Paramount Pictures test in their petition. Nor do Petitioners attack the holding

of the Georgia Supreme Court which finds that the Respondents met all three

prongs of the test.

applied the three-prong Paramount test set forth above, and

concluded that the ordinance was constitutional.

Petitioners’ citation to Krueger v. City of Pensacola, 759

F.2d 851 (11th Cir. 1985) as inconsistent with the Georgia

Supreme Court’s opinion is unavailing. In Krueger, the Eleventh

Circuit held an ordinance regulating topless dancing

unconstitutional and rejected the city’s argument that the

language in the preamble was evidence that its purposes in

enacting the ordinance were proper. The city claimed that the

language set forth in the preamble should end the court’s inquiry

into the purpose behind enactment of the ordinance given the

restricted nat»re of the court’s review. Jd. at 855. The Eleventh

Circuit then re sewed the evidence in the record and concluded

that the evidence established that the purpose of the ordinance

was censorship of the communication rather than legitimate

government interests.

The Georgia Supreme Court was well aware of the Krueger

decision as it had been referenced in the record, and the facts of

this case are distinguishable. Here, the City did not argue that

the language of its preamble was sufficient to support its

purposes. Further, the city did not rely on post-hoc justifications,

but supported its claims with evidence the City considered prior

to enactment of the ordinance. In this case, the City considered

specific studies detailing the secondary effects associated with

adult entertainment establishments. In Krueger, there is no

reference to any studies considered by the municipality prior to

enactment of the ordinance. The City heard testimony from

numerous witnesses which testified regarding the issue of crime

and decreased property values which was absent from the record

in Krueger. Furthermore, the Eleventh Circuit found that the

evidence in Krueger conclusively established that improper

motives motivated the legislation where the Georgia Supreme

Court found that the evidence in this case was insufficient as a

iedinsimeemmemmeianesieimmeirieneneemnnsieniiiiiittaniinti iat

matter of law to establish improper motive. Given these factual

differences, the results of this case and Krueger were different

but the principles applied by both courts were the same.

Similarly, Petitioners cite the case of Phillips v. Borough of

Keyport, 107 F.3d 164 (3rd Cir. 1997) (en banc). This case is

also distinguishable on the facts of the case. In Phillips, the

ordinance was struck down as unconstitutional on the basis of a

“bare” record where there was no evidence that the municipality

had considered specific evidence of secondary effects associated

with adult entertainment establishments. Jd. at 173-174. Here,

it is undisputed that the City considered specific evidence of

secondary effects prior to enactment of the ordinance, and

therefore, Respondents’ ordinance was found to be

constitutional.

Respondents submit that the Georgia courts properly applied

traditional First and Fourteenth Amendment principles to the

facts of this case, and that the “majesty” of such principles has

been preserved. The evidence of this case simply dictated a result

different from that hoped for by Petitioners.

Il.

THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT IS NOT IMPLICATED IN THIS CASE AS

THERE IS NO VESTED PROPERTY RIGHT IN THE

RENEWAL OF A LICENSE WHICH EXPIRES ON AN

ANNUAL BASIS.

Petitioners argue in question II that their licenses would

have been renewed but for the amendment to the City’s

ordinance. Such arguments are not only speculative but

irrelevant. The issue at the heart of this case is whether

Petitioners’ possessed a vested right to the renewal of their

alcohol and adult entertainment licenses despite the change in

the law which prohibited the issuance of an alcohol and adult

entertainment license for the same property.”

The constitutional principles underlying the answer to this

question were established by this Court in Board of Regents v.

Roth, 408 U.S. 564 (1972): “To have a property interest ... a

person clearly must have more than an abstract need or desire

for it. He must, instead, have a legitimate claim of entitlement

to it.” Jd. at 577. Property rights are not created by the Due

Process Clause of the U.S. Constitution, but instead arise by

virtue of state law. Bishop v. Wood, 426 U.S. 341, 344, 96S. Ct.

2704, 2077, 48 L. Ed. 2d 684 (1976). Once the property right

becomes vested under state law, then the Due Process Clause

controls the government’s right to take it away. Cleveland Board

of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84

L. Ed. 2d 494 (1985). Therefore, for the renewal of a license to

fall under the protective umbrella of the Fourteenth Amendment,

it must be deemed a “property interest”.

The determination of what constitutes a “property interest”

is made by looking at the statute or rule at issue. In this case,

the City of Marietta code and Georgia statute regarding liquor

and adult entertainment licenses govern."® Both the City code

and the state statute expressly provide that liquor licenses expire

at the end of each year and that a licensee must apply annually

for each license. Similarly, the City code provides that an adult

12. The ordinance in this case was adopted by Respondents following

ratification by the voters of an amendment to the Georgia Constitution on

November 8, 1994 which delegated the State of Georgia's authority under

the Twenty-First Amendment to the U.S. Constitution to counties and

municipalities. See Article III, Section VI, Paragraph VII of the Constitution

of the State of Georgia.

13. See Marietta City Code § 8-2-2-200(A); 0.C.G.A. § 3-2-7.

SEC IEIT Ryet ok ERI OEY ry my ST Ryan

CLEARS te ON ID 6 SOS OEE. WY

entertainment license expires on an annual basis.“ In order to

be entitled to renewal, the applicant must meet annually the

requirements set forth in the City code."

In this case, the City, through the legislative process, altered

the conditions for obtaining a license beginning on January 1,

1996.'* The ordinance prohibited the holder of an adult

entertainment license from serving, selling, distributing or

suffering the consumption or possession of any intoxicating

liquor, beer or wine or controlled substance upon the premises

of any such licensee. The practical effect was to require the adult

entertainment establishments to choose between either keeping

their liquor license or keeping their adult entertainment license

for the same premises after December 31, 1995 when their

current licenses expired.'’ Under the amended ordinance, the

Petitioners were not qualified to hold both licenses."* Therefore,

14. See Marietta City Code § 8-20-170.

15. See Marietta City Code § 8-8-2-130(A)(10); 8-20-170.

16. In December of 1995, all parties entered into a Consent Order

whereby Petitioners could continue to serve alcohol and provide adult

entertainment pending resolution of any appeals to the Georgia Supreme

Court. After the Georgia Supreme Court issued its decision in March 1997,

Petitioners applied for a Stay of Remittitur which was granted by the Georgia

Supreme Court.

17. The Petitioners’ 1995 liquor and adult entertainment licenses which

were in effect at the time the ordinance was passed were not affected by

passage of the ordinance. In other words, the Petitioners’ 1995 licenses were

not suspended or revoked in any manner. Rather, Petitioners were allowed to

operate under their current licenses until expiration of such licenses at the

end of the year. At that time, they were required by City code and state law to

renew the licenses. See Appendix B - Copy of Boomer’s beer/wine license

which states on the face of the license that it expired on December 31, 1995.

18. The prohibition against simultaneously holding a liquor license and

(Cont'd)

based on these provisions, the Georgia Supreme Court concluded

that Petitioners did not have a vested right in the renewal of

their licenses. The Court contrasted this result with state statutes

where licenses are issued for an indefinite duration rather than

on an annual basis. See Cabo Distrib. Co. v. Brady, 821 F. Supp.

582, 597 (N.D. Cal. 1992).

As Petitioners’ licenses expired on an annual basis, they

did not have a vested right in the law never changing. The

Petitioners were aware of this annual renewal and there were

no assurances that the licensing requirements would not change

in the future. In Ficarra v. Department of Regulatory Agencies,

849 P.2d 6 (Colo. 1993), the Colorado Supreme Court held that

a licensee who relies upon the requirements never changing does

so at his own peril. Jd. at 19. The expenditure of substantial

sums by Petitioners in reliance upon the renewal of their licenses

and with the expectation that the law would never change does

not create a “vested property right” subject to protection of the

Fourteenth Amendment. Rather, such amounts to a unilateral

expectation of renewal which is simply not enough under the

principles set forth in Roth.

Petitioners reference to the dissent of Justice Sears, which

was not joined by Justice Carley"’, regarding Justice Sears’

disagreement with the distinction between licensing and zoning,

does not change the result of this case. A detailed rationale for

this distinction is set forth in Respondents’ Opposition Brief to

(Cont'd)

an adult entertainment license for the same property is a valid requirement.

There is no right, contractual or otherwise, to have both an adult entertainment

license and an alcohol license on the same premises. S.J.7. Inc. v. Richmond

County, 263 Ga. 267, 430 S.E. 2d 726 (1993).

19. See Respondents comments in this regard on p. 2 of this Opposition

Brief.

the petition of Mukesh Shretta. See pp. 6-12. The distinction

has no relation to nor does it contradict the rejection of the “right-

privilege” dichotomy by this Court. Rather, the distinction is

based on the constitutional principles of this Court set forth in

Roth that due process is not implicated where there is no vested

property right. As set forth above, this determination is based

on the state or local law at issue, and in this case, the law clearly

establishes that Petitioners did not have a vested right to the

renewal of their licenses.

Petitioners’ extreme interpretation of the due process clause

would require that a government grant a license to all applicants

regardless of the local requirements in existence at the time a

renewal application is filed simply because the government had

previously granted such licenses. In other words, Petitioners urge

this Court to prohibit local governments and states from ever

changing their ordinances or rules once a license is issued under

an initial statute or rule notwithstanding that such licenses expire

every year. It is this argument that “would work radical surgery

on the due process clause” and not the rationale employed by

the Georgia Supreme Court in holding that a license which

expires on an annual basis confers no vested right. The

jurisdictions which have determined that a vested right exist in

the renewal of a license are based on state statutes which provide

for perpetual duration rather than an annual duration. There is a

legitimate claim of entitlement to the former which does not

exist with the latter.

The holding of the Georgia Supreme Court is entirely

consistent with the established precedent of this Court.

Furthermore, the traditional “bundles of rights” that are inherent

in property ownership are not swept away by the Georgia courts

but must be balanced with the right of local governments to

enact ordinances pursuant to their police powers. In this case,

Petitioners’ 1995 licenses which were already issued at the time

the ordinance was enacted were not suspended or revoked.

Petitioners simply did not meet the requirements for obtaining

both an alcohol and adult entertainment license on the same

property at the time of the renewal application for calendar year

1996. Petitioners were notified of the public hearing in

accordance with state law” and allowed an opportunity to be

heard prior to passage of the ordinance. It should be noted,

however, that any argument regarding the sufficiency of this

notice or the public hearing cannot be considered by this Court

as such argument has been previously waived by these

Petitioners. See pp. 18-20 of Respondents’ Opposition Brief to

the petition of Mukesh Shretta et al. Nothing further was

required. As this Court held in Atkins v. Parker, 472 U.S. 115,

129-30 (1985), “[t]he legislative determination provides all the

process that is due.”

Accordingly, no due process considerations have been

circumvented by any party in this case. The Georgia courts

applied the stringent three-prong test of Paramount Pictures and

determined that the ordinance was constitutional. Contrary to

Petitioners’ assertions, the decision of the Georgia Supreme

Court is not only consistent with this Court’s precedent but with

the holdings of other jurisdictions as well. The fact that some

differences exist in the opinions of other states does not warrant

review by this Court. The yardstick of City of Renton and the

framework established in O’Brien and adopted by the Georgia

courts in Paramount have proved to be adequate in protecting

the due process rights of property owners such as Petitioners.

The record of this case clearly reveals that the Georgia courts

properly followed the guidance of this Court, and have not

infringed upon any federally protected rights. Respondents

certainly recognize that Petitioners are unhappy with the

requirement of choosing between alcohol and adult

entertainment but Certiorari is not warranted simply because

20. See 0.C.G.A. § 50-14-1 — Georgia's Open Meeting Act.

Petitioners feel such choice is not economically feasible. There

is no federal constitutional right to offer adult entertainment in

conjunction with the sale of alcohol.

CONCLUSION

For the reasons set forth above, Respondents respectfully

request that Petitioner’s Petition for Writ of Certiorari be denied.

Respectfully submitted,

DOUGLAS R. HAYNIE

Counsel of Record

EMILIE K. PETROVICH

HAYNIE & LITCHFIELD, P.C.

222 Washington Avenue

Marietta, Georgia 30060

(770) 422-8900

MICHAEL A. O’QUINN

BARNHART, O’QUINN

& WILLIAMS, LLP

162 Keys Ferry Street

McDonough, Georgia 30253

(770) 898-0333

Attorneys for Respondent

City of Marietta

—— <=

APPENDIX A — CODE OF ORDINANCE OF THE CITY

OF MARIETTA, GEORGIA, SECTION 8-5032

COUNCIL BILL NO. 400195 ORDINANCE BILL NO. 5399

AN ORDINANCE

Findings; Public Purpose; Legal Authority. (a) Based upon

the experience of o:her urban counties and municipalities, which

experiences we believe are relevant to the problems faced by »

City of Marietta, Georgia, and based upon a review of a report

from the Marietta City Police Department summarizing the

criminal activity surrounding the three (3) existing license

holders within the City of Marietta, we take note of the notorious

and self-evident conditions attendant to the commercial

exploitation of human sexuality, which do not vary greatly

among generally comparable communities within our country.

Moreover, it is the finding of the City Council of Marietta that

public nudity (either partial or total) under certain circumstances,

particularly circumstances related to the sale and consumption

of alcoholic beverages in so-called “nude bars” or establishments

offering so-called “nude entertainment” or “adult entertainment”,

begets criminal behavior and tends to create undesirable

community conditions. Among the undesirable community

conditions identified with nudity and alcohol are depression of

Property values in the surrounding neighborhood, increased

expenditure for the allocation of law enforcement personnel to

preserve law and order, increased burden on the judicial system

as a consequence of the criminal behavior hereinabove

described, and acceleration of community blight by the

concentration of such establishments in particular areas.

Therefore, the limitation of nude conduct in establishments

licensed to sell alcohol for consumption on the premises is in

the public welfare and it is a matter of governmental interest

and concern to prevent the occurrence of criminal behavior and

Appendix A

undesirable community conditions normally associated with

establishments which serve alcohol and also allow and/or

encourage nudity. To that end, this Ordinance is hereby adopted.

(b) This ordinance is also adopted pursuant to the authority

granted by Article III, Section VI, Paragraph VII of the

Constitution of the State of Georgia.

health and welfare.

BE IT ORDAINED BY THE MAYOR AND COUNCIL

OF THE CITY OF MARIETTA, GEORGIA, THAT:

Section 1. The Code of Marietta, Georgia, is hereby

amended to add section 8-5032 which shall read as follows:

“8-5032

a) No person, association, partnership or

corporation licensed under Chapter 5 of Part

8 (8-5001 et seq.) of the Marietta City Code

after the effective date of this ordinance shall

serve, sell, distribute or suffer the

consumption or possession of any

intoxicating liquor, beer or wine or

controlled substance upon the premises of

any licensee. Any licensee whose license was

granted prior to the adoption of this

amendment shall not be subject to this

amendment until December 31, 1995, at

which time all licensees within the City of

Marietta shall be subject to this provision,

Appendix A

including those licensees licensed before the

effective date hereof.

b) This section (8-5032) shall not apply nor

prohibit the live performance of legitimate

plays, operas, ballets at mainstream theaters,

concerts halls, museums or educational

institutions holding a license, which derive

less than twenty (20%) of its gross receipts

from the sale of alcoholic beverages.”

Section 2. It is hereby declared to be the intention of this

Ordinance that its sections, paragraphs, sentences, clauses and

phrases are severable, and if any section, paragraph, sentence,

clause or phrase of this Ordinance is declared to be

unconstitutional or invalid, it shall not affect any of the

remaining sections, paragraphs, sentences, clauses or phrases

of this Ordinance.

Section 3. All Ordinances or parts of Ordinances in conflict

with this Ordinance are hereby repealed.

Section 4. This Ordinance shall become effective upon the

Signature or without the signature of the Mayor, subject to

Georgia laws 1983, page 4119.

DATE: January 19, 1995 APPROVED:

s/ Ansley L. Meaders

ANSLEY LITTLE MEADERS, Mayor

Appendix A

ATTEST:

s/ Sheila R. Hill

SHEILA R. HILL, City Clerk

APPROVED AS TO FORM:

s/ Douglas R. Haynie

DOUGLAS R. HAYNIE, CITY ATTORNEY

APPENDIX B — ANNU

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APPENDIX C — ARTICLE III, SECTION VI,

PARAGRAPH VII OF THE CONSTITUTION OF THE

STATE OF GEORGIA

GEORGIA CONSTITUTION

Paragraph VII. Regulation of alcoholic beverages.

The State of Georgia shall have full and

complete authority to regulate alcoholic

beverages and to regulate, restrict, or prohibit

activities involving alcoholic beverages. This

regulatory authority of the state shall include

all such regulatory authority as is permitted

to the states under the Twenty-First

Amendment to the United States

Constitution. This regulatory authority of the

state is specifically delegated to counties and

municipalities of the state 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;

and such delegated regulatory authority may

be exercised by the adoption and

enforcement of regulatory ordinances by the

counties and municipalities of this state. A

general law exercising such regulatory

authority shall control over conflicting

provisions of any local ordinance but shall

not preempt any local ordinance provisions

not in direct conflict with general law.

APPENDIX D — OFFICIAL CODE OF GEORGIA

ANNOTATED, SECTION 3-2-7

3-2-7. Expiration and renewal of licenses

generally; continuation of opera-

tions by licensee pending final

approval or disapproval of

application for renewal; penalty

for late application for renewal;

temporary permits.

(a) Except as otherwise specifically

provided in this title, all licenses issued

pursuant to this title shall expire on December

31 of each year and application for renewal

shall be made annually on or before

November 1.

(b) Any licensee making proper

application, with all supporting documents,

for a license to operate during the following

calendar year and having filed the application

prior to November 1 shall be permitted to

continue to operate pending final approval

or disapproval of the licensee’s application

for the following year if final approval or

disapproval is not granted prior to January

APPENDIX E — AFFIDAVIT OF

COUNCILMAN FRANK T. AYERS

AFFIDAVIT OF FRANK T. AYERS

PERSONALLY before the undersigned officer, duly

authorized by law to administer oaths, came Frank T. Ayers,

who, after being sworn, deposes as follows:

This affidavit is based upon my personal knowledge.

My name is Frank T. Ayers, and I am the elected official

representing Ward 6 of the City of Marietta, Georgia. I am

currently the elected official for said position and was the elected

official for said position on January 19, 1995.

. F

I attended the specially called meeting of the Marietta City

Council on January 19, 1995, which commenced at

approximately 6:00 p.m. and adjourned at approximately 10:00

p.m.

At the conclusion of said meeting, I voted for the passage

of Council Bill No. 400195, Ordinance Bill No. 5399, which

is marked as “P-8” in my deposition.

Appendix E

My vote on this Ordinance was an act carried out by me in

my Official capacity as the elected official for Ward 6 of the

City of Marietta, Georgia and my vote was within my official

duty as such elected official.

My vote was taken in good faith and was not done or taken

oppressively, maliciously, or corruptly. In voting on said

Ordinance, it was not my intention to cause injury or damage

to any specific person, firm, entity or organization; rather, it

was my intention to adopt an Ordinance having general

application throughout the City of Marietta.

In voting on said Ordinance, I did not receive any pecuniary

gain as a result of said vote, other than the normal Salary set

forth in the Marietta City Charter.

In voting on said Ordinance, I was acting in a legislative

capacity and performing a legislative function.

In voting on said Ordinance, I relied upon the studies

contained in the Record and contained in my deposition. I found

Said studies to be relevant to the City of Marietta, the problems

faced by the City of Marietta and the problems addressed in the

10a

Appendix E

Ordinance. I also relied upon the testimony and evidence

presented at the public hearing. I also relied upon the advice of

the City Attorney and the Constitutional Amendment approved

by the voters of this State on November 8, 1994.

10.

My only motives for voting for said Ordinance are those

stated in the preamble of said Ordinance. My personal feelings

on any subject matter contained in said Ordinance did not enter

into my vote.

This 5 day of December 1995.

s/ Frank T. Ayers

FRANK T. AYERS

Sworn to and Subscribed before me this

5 day of December, 1995.

s/ Shaun Renae Gee

Notary Public

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.