Quetgles v. City of Columbus

Carley, Justice.

Appellee-defendant City of Columbus (City) adopted an ordinance which prohibits private modeling sessions or other sexual displays in one-on-one sessions and close mingling between customers and employees of adult entertainment establishments. Appellant-plaintiffs brought suit challenging the constitutionality of the ordinance. The trial court granted the City’s motion to dismiss for failure to state a claim and appellants appeal.

A legislative restriction on adult entertainment must satisfy a tripartite test in order to comport with the free speech guarantees of the federal and state constitutions. Harris v. Entertainment Systems, 259 Ga. 701, 703 (1) (c) (386 SE2d 140) (1989). The constitutionality of a law regulating adult entertainment will be upheld only (1) if it furthers an important governmental interest; (2) if that governmental interest is unrelated to the suppression of speech; and, (3) if the incidental restriction of speech is no greater than is essential to the furtherance of that governmental interest. Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 256 (297 SE2d 250) (1982).

On the City’s motion to dismiss under OCGA § 9-11-12 (b) (6), appellants’ pleadings must be construed most favorably for them and all doubt resolved in their favor. Alford v. Pub. Svc. Comm., 262 Ga. 386, fn. 1 (418 SE2d 13) (1992). Applying that standard, appellants’ pleadings raise a justiciable issue as to whether the ordinance furthers an important governmental interest which is unrelated to free speech. In support of its motion to dismiss, the City produced no evidence showing that the ordinance furthers such an important governmental interest. In Discotheque, Inc. v. City Council of Augusta, 264 Ga. 623 (449 SE2d 608) (1994), we held that it was error to grant summary judgment upholding the constitutionality of an ordinance regulating *709adult entertainment in the absence of such evidence. Accordingly, the grant of the City’s motion to dismiss for failure to state a claim must be reversed and the case remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and case remanded.

All the Justices concur.