Abate of Georgia, Inc. v. State of Georgia

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT. 13, 2001
THOMAS K. KAHN
No. 01-12215 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 00-01682-CV-TWT-1

ABATE OF GEORGIA, INC.,
and all others similarly situated,
Plaintiff-Appellant,

versus

STATE OF GEORGIA,
GEORGIA DEPARTMENT OF PUBLIC SAFETY,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 13, 2001)

Before ANDERSON, Chief Judge, DUBINA, and GODBOLD, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant American Bikers Active Toward Education (“ABATE”)

of Georgia, Inc., filed this action against Roy E. Barnes, in his official capacity as
Governor of Georgia, Commissioner Robert E. Hightower of the Georgia

Department of Public Safety in his official and individual capacities, the Georgia

Board of Public Safety (“Board”), and the members of the Board in their official

and individual capacities. Plaintiff brings this action under 42 U.S.C. § 1983 and

challenges the constitutionality of Georgia’s motorcycle helmet law that requires

all persons to wear “protective headgear” while operating or riding a motorcycle.

GA. CODE ANN. § 40-6-315 (Supp. 1999). The district court granted Defendants’

motion to dismiss. Plaintiff now appeals. We affirm.

We review de novo a district court’s order granting a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon

which relief can be granted. See McKusick v. City of Melbourne, Fla., 96 F.3d

478, 482 (11th Cir. 1996).

The statute at issue states in its relevant part:

(a) No person shall operate or ride upon a motorcycle unless he or she
is wearing protective headgear which complies with standards
established by the Board of Public Safety.

(b) No person shall operate or ride upon a motorcycle if the
motorcycle is not equipped with a windshield unless he or she is
wearing an eye-protective device of a type approved by the Board of
Public Safety.

(c) This Code section shall not apply to persons riding within an
enclosed cab or motorized cart. This Code section shall not apply to a

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 person operating a three-wheeled motorcycle used only for
agricultural purposes.

(d) The Board of Public Safety is authorized to approve or disapprove
protective headgear and eye-protective devices required in this Code
section and to issue and enforce regulations establishing standards and
specifications for the approval thereof. The Board of Public Safety
shall publish lists of all protective headgear and eye-protective
devices by name and type which have been approved by it.

§ 40-6-315.

The statute was amended in the 2000 session of the Georgia General Assembly to

substitute the newly created Commissioner of Motor Vehicle Safety as the

applicable regulatory authority for the Board of Public Safety, effective July 1,

2001. See id.

Plaintiff first contends that the Board’s failure to publish lists of approved

headgear and eye-protective devices violates Plaintiff’s rights under the First, Fifth

and Fourteenth Amendments to the United States Constitution. Second, Plaintiff

contends that the statute is unconstitutionally vague. Plaintiff alleges that the

failure of the Board to publish a list of approved gear prevented ABATE’s

members from knowing what equipment satisfies the statutory requirements.

The district court did not err in granting Defendants’ motions to dismiss for

failure to state a claim upon which relief can be granted. The statute authorizes the

promulgation of rules and regulations enacting standards. O.G.C.A. § 40-6-315.

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Standards have been promulgated and they require manufactures to affix a

permanent label to headgear and eye-protective devices showing compliance with

the applicable standards. See GA. COMP. R. & REGS. r. 570-12-.01 et. seq. (1999);

See id. at r. 570-13-.01 et seq. Plaintiff asserts that the statute requires the Board to

issue lists approving specific types of headgear, which Dowis rejected. See Dowis

v. State, 243 Ga. App. 354, 355 (2000). The Georgia Court of Appeals interpreted

the statute and stated that “[t]he statute does not require the Board to approve

specific types of headgear.” Dowis, 243 Ga. App. at 355. The district court did

not err when it reasoned that it would be a gross intrusion for it to undercut this

decision of the Georgia Court of Appeals, construing a Georgia statute.

Plaintiff raises a flurry of other issues. The statute is not unconstitutionally

vague on its face. Operating a motorcycle is not speech within the First

Amendment. Plaintiff’s due process violation claims have no merit. See Picou v.

Gillum, 874 F.2d 1519, 1521 (11th Cir. 1989). There is no equal protection issue.

Plaintiff’s claims for damages are barred by the Eleventh Amendment. See

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104-106 (1984).

AFFIRMED.

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