[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
MAY 28, 2003
No. 02-10216 THOMAS K. KAHN
_____________________________ CLERK
D. C. Docket No. 97-00195 CV-4-HL-5
ARTISTIC ENTERTAINMENT,
INC., a Georgia Corporation d.b.a
Teasers, STEPHEN R. DEWBERRY,
Plaintiffs-Appellants,
versus
CITY OF WARNER ROBINS,
DONALD WALKER, Individually
and in his capacity as Mayor of the
City of Warner Robins, et al.,
Defendants-Appellees.
_________________________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________________________
(May 28, 2003)
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and NELSON *,
District Judge.
*
Honorable Edwin L. Nelson, United States District Judge for the Northern District of
Alabama, sitting by designation. This case is being decided by a quorum due to the death of Judge
Nelson on 17 May 2003. See 28 U.S.C. § 46(d).
PER CURIAM:
In 1997 the City of Warner Robins, Georgia, adopted two ordinances aimed
at prohibiting the consumption of alcoholic beverages at adult entertainment
facilities. The first ordinance, Ordinance 18-97, titled “An Ordinance Regulating
Adult Businesses” (the “Adult Ordinance”), among other things, established a
licensing scheme for operation of an “adult business” within city limits and
prohibited the sale and consumption of alcoholic beverages on the premises of an
adult business.1 The second ordinance, Ordinance 19-97, titled “An Ordinance to
Amend the Warner Robins Alcoholic Beverage Ordinance” (“Alcohol
Ordinance”), amended the City’s alcohol licensing laws to prohibit the selling,
serving, or dispensation of alcoholic beverages by any “adult business.”2 The City
Council approved the ordinances after an evidentiary hearing in which council
members had an opportunity to review studies and testimony of state officials
regarding the combined effects of alcohol and adult entertainment.
The plaintiffs/appellants, who own and operate an adult entertainment
1
The Adult Ordinance also specified that adult businesses (1) could not be located within
1,000 ft. of a school, church, licensed child care center, public park, or property zoned or used for
residential purposes; (2) could not be within 1,000 ft. of another location licensed as an Adult
Business or an Alcohol Merchant; and (3) could not be located on less than one acre of land
containing less than 100 ft. of road frontage. (1 R. at Tab 10, Ex. B.)
2
1 R. at Tab 10, Ex. C.
2
establishment that sells alcohol and offers nude dancing in the City, brought this
action to challenge both ordinances on constitutional grounds.
I. PROCEDURAL HISTORY
This is the third appeal in this litigation. Initially, this court vacated the
district court’s order enjoining the implementation of the ordinances, finding that it
had not accorded sufficient weight to the evidentiary basis that supported adoption
of the ordinances. In the second appeal, we concluded the Adult Ordinance and the
Alcohol Ordinance were content-neutral and subject to the intermediate level of
scrutiny established by United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20
L. Ed. 2d 672 (1968), and that the Warner Robins City Council had an adequate
basis for concluding that a proscription on the sale and consumption of alcohol at
adult businesses would reduce the crime and other social costs associated with those
businesses. Artistic Entm’t, Inc. v. City of Warner Robins, 223 F.3d 1306, 1308-10
(11th Cir. 2000). We also concluded that the Adult Ordinance was not
unconstitutionally vague, but that it did operate as an unconstitutional prior restraint
on expression because it did not provide for an applicant’s right to begin operating
his business within a reasonable time if the City failed to act on his application as
3
required by Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994). Artistic Entm’t, 223
F.3d at 1310-11.
After remand, the City enacted Ordinance 57-00, entitled “An Ordinance to
Amend the Ordinance Regulating Adult Businesses” (“Amending Ordinance”).3
The Amending Ordinance re-adopted the Adult Ordinance in all respects, but
additionally provides in pertinent part:
If the City Council has not approved or disapproved an application for
a license within forty-five (45) days from the date such application was
received by the City Clerk, then on the expiration of the forty-fifth
(45th) day: (1) the application shall be approved and the City Clerk
shall immediately issue the license for which application was made,
and (2) the applicant shall have the right to begin operating in the
manner allowed by the license for which application was made.
In subsequent proceedings, the district court found Artistic was not entitled to
damages for the period during which the City required it to refrain from offering
alcoholic beverages in conjunction with nude dancing.4 Agreeing with Artistic that
the entire Adult Ordinance was unenforceable, but concluding the Alcohol
Ordinance was legitimately enforced, the district court then invited the parties to file
3
2 R. at Tab 72, Ex. B.
4
The City initially agreed that neither ordinance would be enforced while the case was being
litigated. However, on December 16, 1999, after the district court granted the City summary
judgment on all counts, the City began enforcing the ordinances against Artistic until August 24,
2000, the day after we held that the Adult Ordinance operated as an unconstitutional prior restraint
on expression. Since then Artistic has offered both alcoholic beverages and nude dancing.
4
motions “related to the issue of whether the prior restraint problems with the Adult
Ordinance have been cured” by the adoption of the Amending Ordinance.5
The City filed a motion for summary judgment arguing that the Amending
Ordinance had cured the prior restraint problem. Artistic filed a motion to reopen
discovery and a motion to amend its complaint, contending: the Amending
Ordinance did not cure the prior restraint problem; new evidence would show the
Amending Ordinance lacked any evidentiary basis as required by the United States
and Georgia constitutions; and, the Amending Ordinance was not enacted in
accordance with the notice and hearing procedures required by Georgia zoning
laws.6 In its response to the City’s motion for summary judgment, Artistic reiterated
its arguments that the Amending Ordinance failed to cure the prior restraint problem
and violated the Georgia zoning laws.7 Artistic invited the district court to consider
the summary judgment facts and legal argument in conjunction with its motion to
supplement, noting “the issues raised and argued in the motions overlap to a large
degree.”8
5
2 R. at Tabs 65-68.
6
R2 R. at Tab 72.
7
2 R. at Tab 74.
8
2 R. at Tab 78, p. 1.
5
In the context of these pending motions, and after accepting evidence in
support of Artistic’s motion, the district court granted Artistic’s motion to file an
amended complaint9 but, finding the Amending Ordinance was valid, also granted
the City’s motion for summary judgment on all claims. Finding that additional
discovery would not be helpful, the district court denied Artistic’s request to reopen
discovery. This appeal followed.
II. ISSUES
Artistic argues the district court granted summary judgment sua sponte on the
supplemented claims, without providing notice or an opportunity for Artistic to
come forward with evidence to show that the supplemented claims created a
genuine issue of material fact. Artistic also argues the district court improperly
denied its request to reopen discovery. Artistic further argues the Amending
Ordinance is invalid because: (1) the unconstitutional portions of the Adult
Ordinance were not severable, so that the entire Adult Ordinance was void, and
9
Artistic had argued that the validity of the Amending Ordinance was not properly before the
court without an amendment to the pleadings. The City acquiesced to the amendment, but contended
it was, nevertheless, entitled to summary judgment regarding the validity of the Amending
Ordinance.
6
could not be adopted by reference in the Amending Ordinance; (2) the adoption of
the Amending Ordinance violated Georgia’s Zoning Procedures Law; and (3)
adoption of the Amending Ordinance violated the First Amendment because the
City lacked a proper evidentiary basis to support its passage. Finally, Artistic
argues the district court erred in holding the Alcohol Ordinance enforceable even
though portions of it adopt by reference definitions contained in the void Adult
Ordinance.
III. DISCUSSION
A. The Grant of Summary Judgment
We have previously emphasized that Rule 56's notice provision “is not an
unimportant technicality, but a vital procedural safeguard . . . . [T]he notice
provision ensures that litigants will have at least ten days in which to formulate and
prepare their best opposition to an impending assault upon the continued viability of
their claim or defense.” Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417
(11th Cir. 1997) (citations omitted). We have, however, distinguished between sua
sponte grants of summary judgment in cases involving purely legal questions based
7
on complete evidentiary records, and cases involving factual disputes where the
non-moving party has not been afforded an adequate opportunity to develop the
record.10 For instance, in Massey, in reversing the district court’s sua sponte grant
of summary judgment, we distinguished Black Warrior Electric Membership Corp.
v. Mississippi Power Co., 413 F.2d 1221 (5th Cir. 1969), emphasizing that Black
Warrior involved a sua sponte grant of summary judgment on a purely legal issue,
while the issue upon which the district court granted summary judgment in Massey
involved a question of fact which the non-moving party had not been afforded an
adequate opportunity to develop. Massey, 116 F.3d at 1418; Black Warrior
Electric, 413 F.2d at 1226. Likewise, in Burton v. City of Belle Glade, 178 F.3d
1175 (11th Cir. 1999), we made it clear that where a legal issue has been fully
developed, and the evidentiary record is complete, summary judgment is entirely
10
Other circuits reviewing sua sponte grants of summary judgment have been similarly
concerned with the completeness of the evidentiary record before the trial court. In Ramsey v.
Coughlin, 94 F.3d 71 (2nd Cir. 1996), the court reversed a district court’s grant of summary
judgment sua sponte in favor of the defendant because “an orderly and reviewable record” did not
exist. Id. at 74. However, the court made it clear that:
Where it appears clearly upon the record that all of the evidentiary materials that a
party might submit in response to a motion for summary judgment are before the
court, a sua sponte grant of summary judgment against that party may be appropriate
if those materials show no material dispute of fact exists and that the other party is
entitled to judgment as a matter of law.
Id.
8
appropriate even if no formal notice has been provided.11 Id. at 1204.
In the instant case, we conclude that the district court’s grant of summary
judgment was proper. In doing so, we do not retreat from our previous admonition
that summary judgment should be granted sua sponte only in those circumstances in
which the dismissed claims have been fully developed in the evidentiary record and
the non-moving party has received adequate notice. Here, the district court’s April
16, 2001, order made it clear that both parties were expected to come forward with
motions “related to” the constitutionality of the Adult Ordinance following the
adoption of the Amending Ordinance. Furthermore, although the district court had
no formal motion for summary judgment on the new claims before it, and did not
formally notify Artistic that it was considering the new claims in the summary
11
Other circuits have similarly held that formal notice is not always required. E.g. Bridgeway
Corp. v. Citibank, 201 F.3d 134, 140 (2nd Cir. 2000) (holding that the district court properly granted
a defendant summary judgment sua sponte even though the plaintiff had not been given any notice
because “nothing in the record [indicated] that Bridgeway was procedurally prejudiced by the district
court’s failure to give notice that it was considering a sua sponte grant of summary judgment in favor
of Citibank” on a legal issue); Bramble v. Am. Postal Workers Union, 135 F.3d 21, 27 (1st Cir.
1998) (holding that lack of notice prior to a grant of summary judgment sua sponte does not warrant
reversal where nonmovant’s brief showed that he did have adequate notice of the legal theory used
by the court to grant summary judgment); see also Ross v. Univ. of Tex., 139 F.3d 521, 527 (5th Cir.
1998) (holding that lack of notice before granting summary judgment sua sponte does not warrant
reversal where it was clear that nonmovant’s claim had no basis); English v. Cowell, 10 F.3d 434,
437 (7th Cir. 1993) (noting that notice would not be required prior to granting summary judgment
sua sponte where the nonmovant’s claim is frivolous). But see Lopez-Carrasquillo v. Rubianes, 230
F.3d 409, 411-12 (1st Cir. 2000) (holding that it was error for a district court to simultaneously
permit the plaintiff to amend a complaint to reinstate previously dismissed defendants and grant
those reinstated defendants summary judgment sua sponte on the added claims).
9
judgment proceedings, the merits of the claims were fully briefed and evidence was
accepted and considered in conjunction with the simultaneous motion to amend.
Under these circumstances, Artistic had sufficient notice that the court might rule on
the supplemented claims. Furthermore, even if the district court had formally told
Artistic that the new claims would be addressed in the summary judgment
proceedings, we are convinced that the outcome would not have been different. As
discussed below, the district court had all the information necessary to rule on the
legal issues, and Artistic raised no genuine question of material fact that would have
precluded summary judgment.
B. The Motion To Reopen Discovery
We review district court decisions concerning discovery only for an abuse of
discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).
Generally, a motion for additional discovery is properly denied where a significant
amount of discovery has already been obtained and further discovery would not be
helpful. Avirgan v. Hull, 932 F.2d 1572, 1580-81 (11th Cir. 1991). Artistic argues
the district court erred by not granting its motion to reopen discovery because
further discovery would show that the evidentiary basis on which the Amending
10
Ordinance was passed was no longer reasonable, that the Amending Ordinance was
adopted in violation of Georgia’s Zoning Procedures Law, that the Amending
Ordinance leaves an inadequate number of adult businesses to locate within the City
of Warner Robins, and that the Amending Ordinance uniquely and adversely affects
Artistic.
The district court held further discovery would not be helpful primarily
because all of these issues could have been addressed much earlier in the litigation.
Because the Amending Ordinance merely readopted the same language concerning
adult businesses contained in the original Adult Ordinance, Artistic could have
challenged the zoning aspects of the Ordinance when the complaint was first filed in
1997. Moreover, the studies Artistic wished to introduce were provided to the City
Council when the Amending Ordinance was adopted. Therefore, whether the
council properly considered the studies is a question of law that further discovery
would not resolve. Under these circumstances, the district court did not abuse its
discretion in finding that further discovery would not be helpful.
C. The Validity of the Amending Ordinance
We review a district court's grant of summary judgment de novo, applying the
11
same standard as the district court, and reviewing all facts and reasonable inferences
in a light most favorable to the nonmoving party. Allison v. McGhan Med. Corp.,
184 F.3d 1300, 1306 (11th Cir. 1999). Summary judgment is proper when “there is
no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
When we last reviewed this matter, we decided the Adult Ordinance facially
violated the First Amendment because it did not “guarantee the adult business
owner the right to begin expressive activities within a brief, fixed time frame.”
Artistic Entm’t, 223 F.3d at 1311. The Adult Ordinance, as readopted by the
Amending Ordinance, now requires the City to act on an application within 45 days
and provides that if the City fails to act within that time frame, the application will
be automatically approved, and “the applicant shall have the right to begin operating
in the manner allowed by the license for which application was made.” The
additional language is consistent with our holding in Redner v. Dean, 29 F.3d 1495,
1500-01 (11th Cir. 1994), where we decided that a time limit of 45 days in which
the government must act on a similar license application avoided any prior restraint
problem only if provision is made to allow, within a reasonable time, the applicant
to engage in the activity for which license is sought even absent action on the
license application.
12
Artistic argues this court’s previous holding rendered the entire Adult
Ordinance void, so that the City could not cure the Adult Ordinance through
adoption of the Amending Ordinance. Rather, Artistic contends the City’s only
option was to enact a new ordinance, complying with Georgia’s Zoning Procedures
Law and conducting a new evidentiary hearing. On the other hand, the City argues
that the presence of a severability clause in the Adult Ordinance12 saved the portion
of the Adult Ordinance that was re-adopted through the Amending Ordinance. The
City also contends the Georgia Zoning Procedures Law is inapplicable to the
ordinances at issue, and that a new evidentiary hearing was not required.
1. The Severability of the Adult Ordinance
We apply Georgia law to determine what portion of a Georgia statute, if any,
survives due to a severability clause, when a portion of that statute is judicially
invalidated. See Smith v. Butterworth, 866 F.2d 1318 (11th Cir. 1989) (applying
Florida law to determine the effect of a severability clause in a Florida statute). In
12
The severability clause states “If any section, subsection, subdivision, paragraph, sentence,
clause or phrase in this ordinance . . . is for any reason held to be unconstitutional or invalid or
ineffective . . . such decision shall not affect the validity or effectiveness of the remaining portions
of this ordinance.” (1 R. at Tab 10, Ex. B, § 1.170).
13
Chambers v. Peach County, 492 S.E.2d 191, 193 (Ga. 1997), the Georgia Supreme
Court held that a severability clause in an unconstitutional county ordinance
created “a presumption that the county intended for invalid provisions not mutually
dependent on other provisions to be severed, leaving the remainder of the ordinance
intact.” We must not, however, “give to the statute an effect altogether different
from that sought by it when considered as a whole.” City Council of Augusta v.
Mangelly, 254 S.E.2d 315, 320 (Ga. 1979) (Hill, J., dissenting) (superseded by
statute as noted in Nielubowicz v. Chatham County, 312 S.E.2d 802, 803 n.1 (Ga.
1984)). Accordingly, under Georgia law, we must determine whether the invalid
provisions of the Adult Ordinance are mutually dependent upon any other portions
of the Adult Ordinance, while at the same time preserving the original purpose of
the ordinance.
An examination of the Adult Ordinance reveals that the entire ordinance is
designed to regulate adult businesses through a licensing regime. The ordinance’s
substantive requirements are closely intertwined with the licensing procedure and
the two cannot be separated without disrupting the obvious purpose of the
ordinance. Therefore, although the Adult Ordinance contains a severability clause,
we conclude that no part of the Adult Ordinance survived our decision in Artistic
Entertainment, because the entire ordinance is dependent upon a valid licensing
14
regime.
Because no part of the Adult Ordinance survived our previous decision, the
Amending Ordinance is valid only if it stands as an entirely “new” ordinance.
Artistic argues that the Amending Ordinance is not a valid “new” ordinance because
it was not enacted in accordance with Georgia’s Zoning Procedures Law and
violates the procedural requirements of the First Amendment.
2. Georgia’s Zoning Procedures Law
Artistic argues the Amending Ordinance constitutes a zoning ordinance
requiring a proper hearing pursuant to the Georgia Zoning Procedures Law.
Georgia’s Zoning Procedures Law requires a local government to hold hearings
when it proposes to take action that will result in a “zoning decision.” Ga. Code
Ann. § 36-66-4 (2000). The Georgia Supreme Court has said the requirements of
the Zoning Procedures Law apply to the entire process of enacting or amending a
zoning ordinance. Little v. City of Lawrenceville, 528 S.E.2d 515, 517 (Ga. 2000).
However, not every ordinance regulating the use of land constitutes a zoning
ordinance. For instance, in Fairfax MK, Inc. v. City of Clarkston, 555 S.E.2d 722
(Ga. 2001), the court decided that a Gasoline Service Station Ordinance was not a
15
“zoning ordinance” even though the ordinance required a minimum distance of 500
feet between a gas station and a school or other place of public assembly. The court
came to this conclusion because the definition of “zoning ordinance” under the
Georgia Zoning Law13 encompasses only “regulation of uses and development by
means of zones or districts.” Id. at 724. Furthermore, the court stated:
The regulation of certain types of businesses due to their inherent
character is not general and comprehensive like zoning . . . . The
presence of lot size requirements or space restrictions does not
transform a local licensing or regulatory ordinance into one governed
by a zoning procedures statute where it is clear from a reading of the
ordinance “as a whole that it is intended to regulate a particular
occupation, rather than to regulate the general uses of land.”
Id. (citations omitted). Under Fairfax, the Adult Ordinance is not a “zoning
ordinance” even though it does place certain limitations on locations available to an
adult business and establishes certain minimum lot sizes and road frontages. Rather
than regulating “general uses of land,” the Adult Ordinance regulates a particular
type of activity -- adult entertainment. As such, the Amending Ordinance, re-
adopting the Adult Ordinance, is not a zoning ordinance and is not subject to the
hearing requirements established under the Zoning Procedures Law, even if it was
13
Ga. Code Ann. § 36-66-3(5) defines “zoning ordinance” as “an ordinance or resolution of
a local government establishing procedures and zones or districts within its respective territorial
boundaries which regulate the uses and development standards of property within such zones or
districts.”
16
adopted as a “new” ordinance rather than as a true amendment.
3. The First Amendment
Artistic also argues the Amending Ordinance fails as a new enactment
because the City did not have a proper evidentiary basis for the ordinance as
required by the First Amendment. We previously concluded that the Adult
Ordinance was content neutral and subject to the O’Brien test. Artistic Entm’t, 223
F.3d at 1308-09. Under United States v. O’Brien, 391 U.S. 367 (1968), content
neutral restrictions on speech are valid if the government can show a reasonable
basis for believing its policy will indeed further a substantial government interest
and that the policy is the least restriction possible which would further that interest.
See Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir. 1998).
Previously, we decided that the City of Warner Robins, in enacting the original
Adult Ordinance, “had an adequate basis for concluding that proscribing the sale
and consumption of alcohol would reduce the crime and other social costs
associated with adult businesses.” Artistic Entm’t, 223 F.3d at 1309. Therefore, the
question before us is whether the City could rely on the original evidentiary support
for the Adult Ordinance in adopting the Amending Ordinance.
17
In Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the Supreme Court
made it clear that it is entirely proper for a city to rely on the findings of other cities
in creating legislation to combat the negative secondary effects associated with
adult businesses. As long as “whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city addresses,” such reliance is
appropriate. Id. at 51-52. Here, the City adopted an ordinance almost identical to
the original Adult Ordinance, making a slight adjustment designed and intended to
correct the prior restraint problem found by this court. We cannot say that in
enacting the Amending Ordinance the City’s reliance on its own evidentiary basis
compiled in support of the Adult Ordinance, which we specifically found adequate,
was “unreasonable.”
D. The Alcohol Ordinance
We did not invalidate the Alcohol Ordinance in the previous appeal. But
Artistic argues that the Alcohol Ordinance is so intertwined with the void Adult
Ordinance, the Alcohol Ordinance should be struck down as unacceptably vague.
The portion of the Alcohol Ordinance that prohibited the sale of alcoholic beverages
at businesses “for which a license is required pursuant to Warner Robins’ [Adult
18
Ordinance],” became unenforceable when no valid Adult Ordinance existed. But,
we reject -- as did the district court -- Artistic’s contention that the City, pursuant to
the amended Alcohol Ordinance, could not prohibit adult entertainment on the
premises of establishments offering alcoholic beverages.
We look to Georgia law to determine whether the Alcohol Ordinance --
divested of the licensing cross-reference -- survived our decision invalidating the
Adult Ordinance.14 In Union City Board of Zoning Appeals v. Justice Outdoor
Displays, Inc., 467 S.E.2d 875 (Ga. 1996), the Georgia Supreme Court stated,
“When a statute cannot be sustained as a whole, the courts will uphold it in part
when it is reasonably certain that to do so will correspond with the main purpose
which the legislature sought to accomplish by its enactment, if, after the
objectionable part is stricken, enough remains to accomplish that purpose.” Id. at
884 (internal quotations and citation omitted). After striking the referenced
licensing provisions, much remained of the amended Alcohol Ordinance that was
consonant with the legislature’s purpose, and enough remained to accomplish that
purpose.
14
A municipal ordinance is essentially a “local statute;” it is subject to the same rules that
govern the construction of statutes. See 6 Eugene McQuillin, The Law of Municipal Corporations
§ 20.39 (3d ed. 2002); City of Atlanta v. Miller, 569 S.E.2d 907, 908 (Ga. Ct. App. 2002)
(“Construction of an ordinance is a question of law, subject to the canons of statutory
construction....”).
19
Artistic argues that the entire amended Alcohol Ordinance fails because
portions of the Alcohol Ordinance adopt by reference certain definitions contained
in the void Adult Ordinance. We disagree.
The Alcohol Ordinance incorporates by reference the definitions of “specified
sexual activity” and “specified anatomical areas” contained in the Adult Ordinance.
Incorporation by reference is a form of legislative shorthand; the effect of an
incorporation by reference is the same as if the referenced material were set out
verbatim in the referencing statute. A legislature -- for example, a city council --
may look to an infinite variety of sources to reference in crafting its law as long as
the referenced material is both certain and readily available.
We are aware of no authority to the effect that a definition incorporated by
reference into another otherwise valid ordinance (for example, the Alcohol
Ordinance) ceases to be an operative definition just because it derives from a
referenced ordinance (for example, the Adult Ordinance) that was declared
unconstitutional for reasons having nothing to do with the definition. For
incorporation purposes, as long as the referenced definition is certain and is readily
available, it is valid: that the ordinance referenced has lapsed or has been repealed
or has been invalidated (for reasons unrelated to the definition) is not important. See
In re Heath, 12 S.Ct. 615, 616 (1892) (“Prior acts may be incorporated in a
20
subsequent one in terms or by relation, and when this is done the repeal of the
former leaves the latter in force, unless also repealed expressly or by necessary
implication”).
Georgia law rejects the wholesale invalidation urged by Artistic. In Town of
Douglasville v. Johns, 62 Ga. 423, 427 (Ga. 1879), the Georgia Supreme Court
concluded that a legislative act granting a town charter was enforceable even though
the charter incorporated by reference certain code sections declared to be
unconstitutional:
The legislature might have taken them [the referenced
code provisions] from an English book or from a
newspaper, and engrafted them on the charter; when it did
so, it became the law to this town and all its citizens.
Absent clearly expressed legislative intent to the contrary, when a statute adopts by
reference a definition in another statute, the adopted definition becomes a part of the
adopting statute and is not affected by later amendment or repeal of the referenced
act containing the definition. See, Dismuke v. State, 236 S.E.2d 12, 14 (Ga. Ct. App.
1977) (“Does the deletion of the referenced statutes legally affect the existence or
enforcement of the adoptive Act? We find that it does not.”).
The provisions of the amended Alcohol Ordinance that regulated exposure of
“specified anatomical areas” and prohibited “specified sexual activity” referenced
21
the Adult Ordinance only for definition of the quoted terms; those definitions are
certain, readily available, and their continued validity is in harmony with the intent
of the legislature. The constitutional infirmity we found in the Adult Ordinance was
unrelated to these referenced definitions. The Alcohol Ordinance remained valid
and enforceable.15
AFFIRMED.
15
We note that section 4-38 of the Alcohol Ordinance as it existed before the challenged
amendments, entitled “Adult Entertainment,” already prohibited the sale of alcoholic beverages at
any facility that permits public display of nudity. That earlier provision was seemingly not enforced.
The amendment did not delete or replace expressly this provision. When, however, the amendment
was codified, it, too, was codified as section 4-38. It may be that the unamended section 4-38
survived the amendment. Or it may be that, even if the amendment to the Alcohol Ordinance was
invalidated, the pre-existing section would apply. Because we do not rely on the unamended
ordinance, we need not resolve these questions. Suffice it to say that even without concluding that
the amended Alcohol Ordinance survived our prior restraint decision, we doubt Artistic could
prevail.
22