Pel Asso, Inc. v. Joseph

Fletcher, Justice,

concurring in part and dissenting in part.

Although I agree with Justice Weltner’s view that the Georgia Constitution does not vest in every state resident “a constitutional right to dance naked for tips in a barroom,” the principle of stare decisis compels me to concur that nude dancing is protected expression, albeit marginally protected, under the First Amendment. See Barnes v. Glen Theatre, __ U. S. __ (111 SC 2456, 2460, 115 LE2d 504) (1991) (plurality opinion); Harris v. Entertainment Systems, 259 Ga. 701, 702 (386 SE2d 140) (1989); but see id. at 705 (Weltner, J., dissenting). However, because the LaGrange ordinance is not overbroad or vague, I dissent.

1. The significance of the majority opinion is that it states local governments may regulate nude dancing as a valid exercise of their police powers.

A carefully and narrowly drawn regulatory scheme which makes appropriate distinctions between public and private *911behavior and which impacts only those modes of expression which, in the experience of local governments, tend to be the focal points of negative effects such as increased crime, can pass constitutional muster notwithstanding some restriction of protected expression.

Majority at 907.

Moreover, this court did not strike down many of the LaGrange ordinance’s licensing and zoning provisions that the trial court upheld as constitutional. These requirements concern stage height, lighting conditions, dual employment, patron age, direct tipping, touching or fondling, and distance requirements. Specifically, in the licensing area, the ordinance requires that all performances occur on a two-foot stage at least ten feet from any patron under full lighting. LaGrange, Ga. Code § 30-21-15 (m), (p) (1992); cf. Barnes, 111 SC at 2475 (White, J., dissenting) (state could require nude performers to remain a minimum distance from spectators). It prohibits the licensee from employing a dancer in any other capacity; prohibits waiters, waitresses, bartenders, buspersons, and other employees from performing as dancers; prohibits any patron under 21 years of age; and prohibits both physical contact with a dancer at any time and the direct payment of a gratuity to a dancer. Section 30-21-15 (d), (j), (n), (o).

In addition, neither the trial court nor this court found any basis for reversing the ordinance’s zoning requirements. Section 30-21-21 requires any establishment licensed under the ordinance to be located in a general commercial district on a one-acre tract of land with 100 feet of road frontage. The establishment may not be located within 600 feet of any residential property; within 1,000 feet of any church, school, government building, library, civic center, public park, or playground; within 100 feet of any similarly licensed establishment; and within 50 feet of any establishment licensed to sell alcoholic beverages. Id. (a) - (d).

These restrictions are legitimate exercises of the city’s police powers and may be enacted without infringing on the protected expression of nude dancing. Cf. Renton v. Playtime Theatres, 475 U. S. 41 (106 SC 925, 89 LE2d 29) (1986) (holding zoning ordinance prohibiting adult motion picture theatres within 1,000 feet of any residence, church, park, or school satisfies First Amendment); see also Intl. Eateries of America v. Broward County, 941 F2d 1157 (11th Cir. 1991) (upholding county ordinances prohibiting adult nightclubs within 500 feet of a residential district and 1,000 feet of a church).

2. The cardinal rule of statutory construction is to ascertain the legislative intent. City of Jesup v. Bennett, 226 Ga. 606, 608 (176 SE2d 81) (1970). When the statute’s language is susceptible to more than one construction, this court must give it a construction that will *912sustain the act. City of Hapeville v. Anderson, 246 Ga. 786, 787 (272 SE2d 713) (1980). A “statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction . . . and its deterrent effect on legitimate expression is both real and substantial.” Erznoznik v. City of Jacksonville, 422 U. S. 205, 216 (95 SC 2268, 45 LE2d 125) (1975).

The majority opinion concludes that the definitions of nudity and partial nudity make the ordinance so broad that it applies to mainstream performance houses, a woman dancing at a pool party in her bikini bathing suit, and a child appearing naked before a parent at bath time. I do not interpret the ordinance to sweep so broadly when construed in light of its caption and “Public Declaration.” See State v. Miller, 260 Ga. 669, 674 (398 SE2d 547) (1990) (relying on statute’s policy statement to construe narrowly prohibition against mask-wearing and avoid overbreadth problem under the Federal and State Constitutions). The caption states that the ordinance seeks to limit the right to offer and perform partially nude dancing, to establish conditions for obtaining a license to operate an establishment offering partially nude dancing, and to regulate the dancers and other employees of the establishment. The public declaration states that the city enacted the ordinance in an attempt to limit criminal behavior and undesirable community conditions associated with nude dancing, such as depressed property values.11

The language of the ordinance can be given a narrowing construction to avoid any problem of overbreadth based on this legislative intent. The ordinance prohibits nude dancers and dancing involving acts of public indecency and regulates partially nude dancing at licensed entertainment establishments. The terms “nudity,” “partial nudity,” and “public indecency” in ihe ordinance track the definitions that the U. S. Supreme Court upheld as constitutional in Barnes.12 See Barnes, 111 SC at 2462, n. 2. Thus, the ordinance ap*913plies only to commercial establishments in which dancers appear in a partial state of nudity for the purpose of entertaining patrons.13 The ordinance is not overbroad based on this limiting construction. Because its regulation of nude dancing is narrowly tailored to further the city’s interest in preventing the secondary effects associated with adult entertainment establishments, the ordinance meets the test enunciated in Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 256 (297 SE2d 250) (1982), and should be upheld as constitutional.

3. The ordinance also meets the standard for upholding a statute challenged as unconstitutionally vague. The majority opinion errs in considering the definitions of nudity and partial nudity in isolation without considering the context of the ordinance. See Bell v. State, 252 Ga. 267, 269 (313 SE2d 678) (1984).

Due process requires only that a statute define the offense in terms that advise people of ordinary intelligence of the conduct sought to be prohibited, and that provide sufficient guidelines to prevent arbitrary enforcement.

Miller, 260 Ga. at 674. When read in the context of regulating commercial entertainment establishments, persons of common intelligence would have no trouble in understanding the definition of partially nude dancing and totally nude dancing. Women would have to cover their nipples, and both men and women would have to cover their genitals, pubic area, and buttocks to work as nude dancers under the city ordinance. Although the woman dancing while “wearing a halter top and brief shorts” and the man dancing while “wearing only a pair of pants” arguably would be dancing in partial nudity, they would be subject to the regulations of the ordinance only if they were employed as dancers and working at one of the city’s commercial establishments. The definitions considered in the context of the entire ordinance provide sufficient guidelines to alert persons about the prohibited conduct and to prevent arbitrary enforcement.

4. I concur with the majority opinion’s conclusion in Division 4 that the permit requirements in subsections (e) and (g) of § 30-21-15 and revocation standards of § 30-21-27 violate due process. See Majority at 909-910. The ordinance’s severability clause, however, permits the striking of these unconstitutional provisions without invalidating the entire statute since they are not mutually dependent on *914the remaining provisions of the ordinance. See City Council v. Mangelly, 243 Ga. 358, 363 (254 SE2d 315) (1979). Accordingly, I would strike these unconstitutional provisions and uphold the remaining provisions of the ordinance as constitutional.

Decided March 18, 1993. Franklin H. Thornton, for appellants. Lewis, Taylor & Lee, James R. Lewis, for appellees.

I am authorized to state that Justice Hunstein joins in this concurrence and dissent.

The public declaration at the beginning of the ordinance states:

The Mayor and Council of the City of LaGrange, based on common knowledge, and on experience derived from other local governmental jurisdictions in this state and elsewhere in this nation, believe that nude dancing, public nudity and indecency tends to and will encourage and beget criminal and other behavior such as disorderly conduct, prostitution, drug trafficking, and substance abuse. Additionally, this type of activity and the attendant criminal conduct and activity related thereto results in depressed property values in the community and surrounding neighborhoods, increased expenditures for and allocation of enforcement personnel reasonably necessary and desirable for the appropriate preservation of law and order and places an increased burden on the resources of the City and an increased burden on the Judicial System.

The ordinance defines “partial nude dancing” as “dancing or appearing partially nude but at a minimum with the human male or female genitals, pubic area and buttocks and all of the nipples of the breasts of a female being at least shielded and covered by a fully opaque covering.” “Total nude dancing” is defined as “appearing or dancing in a total state of na*913kedness without the protection or benefit of the minimal coverings required for partial nude dancing.”

Cf. 7250 Corp. v. Bd. of County Commrs., 799 P2d 917 (Colo. 1990) (holding constitutional state Nude Entertainment Ordinance that applies only to establishments that do not have a liquor license and regulates persons appearing in a state of nudity for purposes of entertaining patrons).