*1 528 procedures. through administrative
dressed area, simple a rule: propose I would guide in this analytical As an make deci- uniquely qualified a school board issues as to which discretion, must must exercise sions, a school board and as to which by process established administrative be first considered rule initially in Such a up court. statute; may be taken other issues eliminate opinion and would cited would fit the cases practitioners have been parties and approach which the hit-or-miss de- case, application of that rule would to use. the instant forced directly presented be the issues at bar could conclusion that mand the tele- ownership operation of That is so because to a court. a regard to which something with facilities is communications decisions, notwithstanding make uniquely qualified to board is school operating one of in this case has been involved that the school district for almost years 50 and the other question for almost the stations years. case, regret I that this court I the result of this While with provide clarity to area of law up opportunity to an passed an believe, I provided, clarity could have been clouded with doubt. That proposed rule this concurrence. applying the special Carley joins to state that Justice am authorized concurrence.
Decided June Reconsideration denied June Barge, Barge, appellants. Mason for McKee & R. McClain, Elmore,
Bondurant, Fahey, & Jane E. J. Scott Mixson appellees. BURLESQUE, INC. v. CITY OF S95A0432. SOUTHERN CLUB CARROLLTON. Carley, Justice. ordinances constitutionality
After of its adult entertainment Yarbrough successfully by appellant’s predecessor challenged 72) (1992), Carrollton, appellee 262 Ga. topic. Contend- relating to that passed of Carrollton a new unconstitutional, ing that this new ordinance likewise conducting declaratory injunctive relief. After brought suit for trial, upheld consti- an order which bench the trial court entered against its injunction tutionality of the new ordinance and denied appeals. It is from this order that enforcement. satisfy A must legislative restriction
tripartite comport guarantees test order to with the free Systems, Harris v. Entertainment federal state constitutions. (1) (c) (386 constitutionality (1) upheld only: if it regulating law adult entertainment will be interest; governmental furthers *2 and, (3) if speech; is to of the inci- interest unrelated the of is to the greater dental restriction no than essential fur- Corp. Paramount v. Pictures governmental therance of that interest. Busbee, (297 250) (1982). 250 Ga. SE2d extent, great provisions
To a
the
of the instant ordinance are
T.,
J.
the Paramount
test in S.
Inc.
satisfy
identical
to those held to
County,
v.
(430
726) (1993)
Gravely
Richmond
insufficient evidence of the effects” of adult en- tertainment establishments. that, served the agreed at bench
trial, City’s responses by the thereto could be considered the trial being City court “as the of testimony representative sworn of the representative testify such had to at . . .’’In been called trial. interrogatories, appellant requested City specific identify governmental by interest it which contended wa« furthered each of challenged portions City certain of the ordinance and that state upon the rational basis which erotic dance establishments were sin- gled out regulations. response, for certain In identified the specific by to each interest contended be furthered enu- portion merated of the ordinance and stated erotic dance estab- prop- lishments have been shown to have had a detrimental effect erty activity values and cause increases in criminal to traffic due congestion, operation, problems. Ap- unusual hours of litter and noise pellant requested City identify any further studies which supported its as foregoing portions conclusions to each of the response ordinance. In this request, listed several studies counties, from other had made been known City’s mayor by or its council. This evidence offered by fact, rebutted In at the bench trial. City’s unrebutted evidence no evidence whatsoever. put forth trial upholding favorably to the “most must be construed State, 53, Tate v. judgment. findings and court’s [Cit.]” Discotheque, supra 624-625 at Compare city, as strongly against (wherein construed most the evidence was summary judgment). movant for ordinance, city may rely on entertainment enacting an adult estab- secondary effects of adult entertainment evidence by other commissioned as found studies lishments counties. require city, before enact- “The First Amendment does not conduct new studies ing cit- already generated independent of that evidence ies, long as whatever evidence relies is rea- so problem that sonably to be relevant believed Theatres, Playtime City Renton U. S. addresses.” [475 (1986)]. 41,] [(106 89 LE2d 51-52 SC original.) supra 624. In (Emphasis what, if absolutely probative anything, had there was no evidence *3 upon enacting in the adult entertainment ordinance. been relied in There, entirely upon conclusory reference made relied preamble “experience” to the of other the ordinance’s “experi- preamble’s unexplicated reference to the and counties. The counties, more, and without ence” Here, contrast, hearsay. direct did upon evidence of its reasonable specific studies that it had relied and City’s regard The evidence this belief the relevance thereof. veracity competency hearsay, rest on the and not because it does not Rather, authors. the evidence de- of the studies themselves or their solely City’s representation that rives its value from the credit of the relevance thereof. it had relied the named studies and representation The list of and the OCGA 24-3-1. studies § City’s position prove not offered to the truth support studies were therein, prove that of the matters asserted but were offered to secondary specific of the ef- City had considered evidence reasonably it be- fects of adult entertainment establishments which problems to the addressed the ordinance. lieved to be relevant compelled accept City’s to re- Appellant legally was not equivalent as the of the sworn testi- sponses to the City. Appellant could have insisted mony representative of the trial, where that witness City produce that the a witness at the bench sifting cross-examina- subjected thorough been to a and could have However, City’s responses as appellant accept tion. did equivalent thereby waiving right its testimony, of sworn to con- support favorably duct cross-examination. Construed most City’s findings judgment, trial court’s and unrebutted evidence was sufficient to authorize the trial court to find that relied specific reasonably which it studies believed to be relevant to the problems by the Compare Discotheque, supra addressed ordinance. 625. asserts that the ordinance is an unconstitutional However,
prior restraint. it is clear that adult licensing of entertain- per ment establishments is not a violation se of the First Amendment. city may “A legitimate enact an purposes, requiring those who would exercise their freedom to obtain a license Airport Jackson, advance. Book Store v. Ga. [Cit.]” requires The performers, not but waitresses and employees, patrons prohibits other remain four feet from and them receiving tips directly patrons. Appellant urges from from equal protection performers. denies There some doubt standing protection whether assert equal argu- However, performers. ment on behalf of the assuming ap- even pellant performers does have standing, the nude and the clothed situated, similarly waitresses are job description either vulnerability improper attire A behavior customers. may classify regulate differently nude dancers from other em- ployees, just city may classify as “a differently places
establishments from of entertainment.” Gravely (3). v. Bacon, supra at 207 Asso,
5. Citing
Joseph,
Pel
Inc. v.
Co.,
Lakewood v. Plain Dealer Pub.
a license. thirteenth *4 health, provides for safety consideration of the welfare of the citi- preservation However, neighborhoods. zens absence of similar language was one of the reasons adult entertainment ordi- mayor nance found to afford unconstitutional discretion City Lakewood, supra at 770. of
We do not find an absence of leaving ascertainable standards grant City’s or denial of licenses to the uncontrolled discretion. Com- pare Asso, Inc., (4) (ordinance Pel supra at 909 contained no stan- whatsoever). dards The ordinance sets forth ascertainable standards City’s which control provide exercise of its discretion stan- 532 determining that discretion has been abused.
dard for whether requires employees to be of 6. The ordinance also owners and to, character,” as, having no “good although moral defined not limited previ- felony turpitude of a or crime of moral within the convictions years. urges deny a license to ous five cannot operate or work an adult entertainment establishment based on past criminal conduct. prevent nothing
There denial or revocation license applicant the unlawful acts or omissions of the or licensee based Asso, (4). Inc., supra himself. Pel at 909-910 Under the unlawful acts or omissions which result denial or revocation of a turpitude license are felonies and crimes of moral committed within past years by applicant provision five or licensee himself. This Asso, Inc., Compare supra is not Pel overbroad unconstitutional. (4). 910 Judgment concur, Hunt, J., except All the Justices C. affirmed. Sears, J., who dissent. Justice, concurring.
Fletcher, I judgment concur because the met its burden of proof.1 presented It showing sufficient evidence it had government interests its adult entertainment speech. separately that were unrelated to the of I write only to disagree opinion with the dissent’s assertion that would permit council to “mainstream art museum.” This previously rejected argument.2 Nothing court has opinion resurrects it. Justice, dissenting. Sears,
I dissent
to the majority’s
ruling
affirmance of the trial court’s
that Carrollton’s
passes
adult entertainment ordinance
constitutional
muster.
conclude that
it does not because Carrollton failed to show
ordinance “furthers
interest
Quetgles
Columbus,
speech.”
unrelated to free
v.
264
708,
(450
677) (1994).
Ga.
712
SE2d
To
establish this
interest, Carrollton,
rely
as
right,
experience
was its
chose to
on the
regarding
pernicious secondary
counties and
effects of
establishments.
Inc. v.
Augusta,
(1994).
624
However, once the statute
challenged,
required
Carrollton was
“probative
offer
‘experience’
Quetgles City Columbus,
677) (1994) (Fletcher, J.,
v.
See
Ga.
concurring).
Gravely Bacon,
See
Ga.
206-207
*5
mation of the studies and made known to the regarding secondary effects of adult entertainment estab- lishments, merely reports Carrollton listed certain from other cities. These answers thus suffer from the same fundamental defect as did preamble Augusta Discotheque, ordinance (see Quetgles, pre- 264 Ga. at n. which sets forth the entire (Fletcher, J., Augusta’s amble to concurring)).
In Discotheque, preamble Augusta stated that its experience ordinance based on the of other cities and counties and then listed those cities and counties. We held that this statement preamble “self-serving conclusory hearsay” amounted to regard- experience ing probative of other not evi- Likewise, here, experience. interroga- dence of that the answers to the tories, merely studies, allegedly applicable list are “self- serving conclusory hearsay,” Discotheque, 264 Ga. at and are not probative experience municipalities. Contrary majority opinion, to the assertion in the the list of the studies and the city’s representations prove regarding them were offered to the truth — of the matters therein asserted the studies demonstrated the secondary undesirable effects of adult entertainment establishments justified regulations city’s contained ordinance. Lack- ing probative effect, evidence to that the trial court in this case could reasonably legislative determine whether the restrictions further interest unrelated to the speech. differently, city’s representations Stated the studies and the regarding them are not offered for the truth of the matter asserted therein, then there is no method which the trial court or this Court alleged can determine whether the subterfuge studies were a mere justify suppress speech. majority’s an ordinance enacted to Under the rationale, long city interpretation so as the council stated that its study entertainment, ir- demonstrated the evils of adult it would be study question really majority relevant whether did so.3 The has, fact, opinion previous failed to follow our rationale, conclusion, majority’s logical permit city taken to its would council to simply by stating study activities at mainstream art museums that it had relied on a concluding photographs, secondary paintings, that nude and statues created undesirable ef actually adopted by fects. Whether that were true would be irrelevant under the standard majority. There, required
Ga. at probative we some activity “evidence that criminal neighborhoods and deterioration of . secondary were . . effects of adult entertainment estab- type lishments.” The permitted statement under — opinion today the mere statement council member that a — study showed those effects is not evidence that establishes secondary effects, hearsay as the statement regard.
Moreover, demonstrate, Carrollton failed to in its answers to the *6 otherwise, interrogatories or it relied these studies and re- ports “in ordinance.” 264 Ga. at municipal Quetgles, (Sears, J., See also 264 Ga. at dissenting).
Finally, although Burlesque Club Southern did for the city’s answers to the evidence, to be treated as it did right not waive its to have those answers appro- evaluated under the priate legal reasons, foregoing standards. For the applying those stan- ineluctably dards leads to the conclusion that Carrollton failed to carry its burden to show that it had an inter- est unrelated to the enacting the ordinance. therefore opinion. dissent to the majority
I am authorized to state that Chief joins Justice Hunt in this dissent.
Decided June Reconsideration denied June Maddox, Jr., Thomas E. appellant. for Wiggins Camp, & Wiggins, William J. appellee.
S95A0447. SAMS v. THE STATE.
Fletcher, Justice. Melvin D. Sams was possession convicted of in- cocaine with tent to distribute and sentenced to parole life without under OCGA appeals, 17-10-7. He contending § the trial deny- court erred in ing his suppress. motion to We reverse because the seizure of cocaine resulted from an investigatory stop therefore, unlawful the trial court granted should have suppress. motion to
At approximately p.m. 21, 1993, 9:30 on December an officer be- suspicious came Sams, Sams when he observed whom thought he male, was a white predominantly Sams, housing project. black African-American, who is walking on a sidewalk near a red Ford pickup truck, parked legally which was and created no traffic hazard.