In the Supreme Court of Georgia



                                            Decided: June 15, 2015


S15A0146. OASIS GOODTIME EMPORIUM I, INC., d/b/a OASIS et al. v.
                  CITY OF DORAVILLE et al.


      NAHMIAS, Justice.

      Oasis Goodtime Emporium I, Inc., d/b/a Oasis, which describes itself as

a “restaurant featuring nude dance entertainment and alcohol service,” appeals

to this Court to preserve those two pillars of its business – nudity and alcohol.

Oasis asserts that when its employees dance nude and serve alcohol, they are

clothed with constitutional free speech protection, which the City of Doraville’s

Code of Ordinances attempts to strip away. Oasis contends that it should not be

subject to the Doraville Code at all because the legislation making its land a part

of Doraville is void due to an alleged statutory notice defect, and that various

portions of the Code are unconstitutional. We conclude, however, that Oasis is

properly subject to Doraville’s Code and that the City’s regulations do not

violate the club’s constitutional rights, and we therefore affirm the trial court’s

order granting Doraville judgment on the pleadings.
       1.      Oasis has operated in DeKalb County since about 1990. Beginning

in 2001, Oasis operated under a settlement agreement that resolved litigation

between DeKalb County and Oasis and several other adult entertainment

businesses. The agreement granted Oasis and the other businesses “adult

nonconforming status,” meaning that they were “permitted to sell alcoholic

beverages (subject to all other laws and regulation of alcohol) and to provide

adult entertainment in the form of nude dancing or live nude performances.”1

       The City of Doraville is in DeKalb County. On March 29, 2012, the

General Assembly passed Senate Bill (SB) 532, which amended the City’s

charter by redefining Doraville’s boundaries, effective December 31, 2012; the

new city limits encompass Oasis’s location. On October 1, 2012, Doraville

enacted Ordinance No. 2012-18, which established a sexually oriented business

(SOB) code, located at § 6-400 et seq. of the Doraville Code of Ordinances.2


       1
         The 2001 agreement was originally set to expire after eight years, but then was amended
to extend for another 15 years, with the option to renew for an additional 10 years. Under the
agreement, Oasis was required to pay an annual fee to DeKalb County, which began at $55,000 and
increased to $100,000 in 2007.
       2
           Although all of the city regulations at issue in this case are part of the Doraville Code of
Ordinances, the parties frequently refer to the chapters dealing with sexually oriented businesses,
alcohol, and zoning as individual “codes,” e.g., the “SOB code.” We generally follow that practice
in this opinion, using “code” to refer to a specific chapter and “Code” to refer to the full Doraville
Code of Ordinances.

                                                  2
The SOB code defines a “sexually oriented business” to include an “adult

cabaret,” which in turn is defined as “a nightclub, bar, juice bar, restaurant,

bottle club, or similar commercial establishment that regularly features live

conduct characterized by semi-nudity.                      No establishment shall avoid

classification as an adult cabaret by offering or featuring nudity.” Code § 6-401.

Under this definition, Oasis is a sexually oriented business.3 Employees of

sexually oriented businesses are prohibited from appearing fully nude, but semi-

nudity is permitted. See Code § 6-416 (a).4 Sexually oriented businesses are

also prohibited from selling alcohol. See Code § 6-416 (d) (“No person shall

possess, use, or consume alcoholic beverages on the premises of a sexually


       3
          Although Oasis asserted at oral argument that it does not want to be classified as a sexually
oriented business under the Code, Doraville is treating Oasis as such a business and Oasis has made
no argument that it does not meet the definition of a sexually oriented business.
       4
          Code § 6-416 (a) says: “No patron, employee, or any other person shall knowingly or
intentionally, in a sexually oriented business, appear in a state of nudity or engage in a specified
sexual activity.” Code § 6-401 defines the forbidden “nudity” as “the showing of the human male
or female genitals, pubic area, vulva, or anus with less than a fully opaque covering, or the showing
of the female breast with less than a fully opaque covering of any part of the nipple or areola.” The
permissible “semi-nudity” is defined as

       the showing of the female breast below a horizontal line across the top of the areola
       and extending across the width of the breast at that point, or the showing of the male
       or female buttocks. This definition shall include the lower portion of the human
       female breast, but shall not include any portion of the cleavage of the human female
       breast exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel
       provided the areola is not exposed in whole or in part.

                                                  3
oriented business.”).

       In December 2012, Oasis applied to Doraville for a 2014 alcohol license,

and Oasis and its owners (collectively, “Oasis”) also filed a complaint against

Doraville, its Mayor, the members of the City Council, and the City Clerk

(collectively, “Doraville”), challenging provisions of the City’s SOB, alcohol,

and zoning codes.5 On January 14, 2013, Doraville denied Oasis’s application

for an alcohol license. Oasis later amended its complaint in this case twice, and

Doraville filed answers to both amended complaints. Doraville also moved for

judgment on the pleadings, and the trial court granted that motion on April 18,

2014.6     Oasis now appeals to this Court, invoking our jurisdiction over



       5
          In addition, Oasis challenged Code § 11-125, found in the food service and entertainment
chapter. At the time Oasis filed its complaint, § 11-125 (a) said: “It shall be unlawful for any person
to display or permit the display of the human torso incidental to the dispensing of food, beverages
or entertainment or otherwise unless the breast[s], genitals and buttocks are fully covered with
nontransparent materials.” That section was repealed on April 15, 2013, and Oasis does not
challenge the now-repealed section on appeal or allege that § 11-125 was ever applied to it. Oasis
also alleged that Doraville is bound by the agreement between Oasis and DeKalb County granting
Oasis “adult nonconforming use,” but Oasis appears to have abandoned that claim on appeal. See
Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 88-89 (764 SE2d 398) (2014) (rejecting another adult
entertainment club’s attempt to enforce the same agreement with DeKalb County against the City
of Brookhaven).
       6
          All of Doraville’s ordinances challenged by Oasis on appeal were attached as exhibits to
one or more of Oasis’s complaints or Doraville’s answers, so the trial court could properly consider
them in ruling on the motion for judgment on the pleadings. See OCGA §§ 9-11-10 (c), 9-11-12
(c); Trop, 296 Ga. at 89.

                                                  4
constitutional questions. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).

      2.    Seeking to avoid the Doraville Code entirely, Oasis argues that SB

532, which amended the City of Doraville’s charter by redefining the City’s

boundaries to encompass the land on which Oasis operates, is invalid because

the notice requirement of OCGA § 28-1-14 (b) was not satisfied. We conclude

that Oasis lacks legal standing to pursue this claim.

      OCGA § 28-1-14 implements the provision of the 1983 Georgia

Constitution stating that “[t]he General Assembly shall provide by law for the

advertisement of notice of intention to introduce local bills.” Art. III, Sec. V,

Par. IX. With regard to a local bill amending a municipal charter, the statute

requires that notice must be given in two different ways before the bill becomes

law. Subsection (a) of § 28-1-14, which applies to all local bills, requires that

notice of the intention to introduce such a bill be advertised in the local

newspaper for legal notices one time no later than the week before the bill is

introduced. Subsection (b) imposes an additional requirement when the local

bill would amend “the charter of a municipality or the enabling Act of the

governing authority of a county or a consolidated government.” For these bills,

      a copy of the notice of the intention to introduce local legislation

                                       5
     required by subsection (a) of this Code section [must be] mailed,
     transmitted by facsimile, or otherwise provided to the governing
     authority of any county, municipality, or consolidated government
     referred to in the bill during the calendar week in which such notice
     is published as provided in subsection (a) of this Code section or
     during the seven days immediately following the date of publication
     of such notice.

OCGA § 28-1-14 (b).7

     7
         OCGA § 28-1-14 says in full:

     (a) No local bill shall become law unless notice of the intention to introduce such
     bill shall have been advertised in the newspaper in which the sheriff's advertisements
     for the locality affected are published one time before the bill is introduced. Such
     advertisement must be not more than 60 days prior to the convening date of the
     session at which the bill is introduced. After the advertisement has been published
     the bill may be introduced at any time during that session unless the advertisement
     is published during the session, in which event the bill may not be introduced before
     Monday of the calendar week following the week in which the advertisement is
     published.
     (b) No local bill amending the charter of a municipality or the enabling Act of the
     governing authority of a county or a consolidated government shall become law
     unless a copy of the notice of the intention to introduce local legislation required by
     subsection (a) of this Code section is mailed, transmitted by facsimile, or otherwise
     provided to the governing authority of any county, municipality, or consolidated
     government referred to in the bill during the calendar week in which such notice is
     published as provided in subsection (a) of this Code section or during the seven days
     immediately following the date of publication of such notice. A single notice sent by
     United States mail, postage prepaid, addressed to the governing authority of the
     county, municipality, or consolidated government at the official address of such
     governing authority shall satisfy the requirement of this subsection. If such notice is
     mailed, the notice requirement of this subsection shall be presumed to have been met
     by depositing the copy of the required notice in the United States mail. For purposes
     of this subsection, the copy of the notice provided to such governing authority may
     consist of an actual or photostatic copy of the published notice or a typed restatement
     of the contents of such notice.
     (c) A copy of the notice as it was advertised and an affidavit stating that the notice
     has been published as provided by this Code section and that the notice requirements
     of this Code section have been met shall be attached to the bill and shall become a

                                               6
       SB 532 amended Doraville’s incorporating act to revise the corporate

limits, so the bill was subject to both notice requirements. It is undisputed that

the requirement in § 28-1-14 (a) was satisfied. On Thursday, March 8, 2012,

The Champion, DeKalb County’s newspaper for legal notices, published the

following:

       NOTICE OF INTENTION TO INTRODUCE LOCAL
       LEGISLATION: Notice is given that there will be introduced at the
       regular 2012 session of the General Assembly of Georgia a bill to
       change the corporate limits of the city of Doraville and for other
       purposes.

SB 532 was introduced two calendar weeks after that, on Tuesday, March 20;

the bill passed on March 29.

       Oasis contends that the notice requirement in OCGA § 28-1-14 (b) was

not satisfied. We need not decide this question, however, because Oasis lacks

standing to challenge the validity of the notice of SB 532 that was required to

be given to the City of Doraville.8 Oasis maintains that because it has been


       part of the bill. Such affidavit shall be made by the author of the bill.
       8
         Resolving the merits of this notice question might not be easy. Doraville argues that the
local government notice requirement was met because the City Clerk averred that the City received
a copy of The Champion every week in 2012 and because State Representative Elena Parent sent
Doraville’s Mayor and City Council members an email on February 29 discussing her plan to run
the newspaper notice and another email on March 11 saying that the notice had run and that she
planned to have the bill finalized the next day. However, subsection (b) of OCGA § 28-1-14

                                                  7
injured by SB 532, which brought it within the domain of Doraville’s Code, it



imposes a separate requirement that the notice required by subsection (a) be transmitted to the local
government. It is clearly meant to give a local government whose charter or enabling act may be
amended direct notice, rather than only the notice by publication that is given to the general public
pursuant to subsection (a). If it sufficed simply to show that the governing authority, like the
members of the local public, received the newspaper in which the notice was published, subsection
(b) would be rendered largely superfluous. See Berryhill v. Ga. Community Support & Solutions,
Inc., 281 Ga. 439, 441 (638 SE2d 278) (2006) (“Courts should give a sensible and intelligent effect
to every part of a statute and not render any language superfluous.”). Nor did either email from Rep.
Parent satisfy the statutory requirement, because the February 29 email was not sent during the
calendar week in which the notice was published in the newspaper or during the seven days after
publication, and while the March 11 email was sent within the statutorily required time and
referenced the newspaper notice, it did not include a “copy of the notice” or a “restatement of the
contents of such notice.” OCGA § 28-1-14 (b).
         Then again, the emails do show that Doraville’s governing authority had actual notice of SB
532’s impending introduction, and it is possible that this substantial compliance with the objective
of subsection (b) was enough. Compare OCGA § 1-3-1 (c) (“A substantial compliance with any
statutory requirement, especially on the part of public officers, shall be deemed and held sufficient,
and no proceeding shall be declared void for want of such compliance, unless expressly so provided
by law.”), with Cook v. NC Two, L.P., 289 Ga. 462, 464-465 (712 SE2d 831) (2011) (“[W]here a
statute is ‘plain and susceptible of but one natural and reasonable construction, . . . the legislature’s
clear intent . . . will not be thwarted by invocation of the rule of “substantial compliance.”’” (citation
omitted)). Then again, OCGA § 28-1-14 (c) casts doubt on the proposition that any part of the
statute can be satisfied by substantial compliance, by requiring that a copy of the notice as published
and an affidavit by the author of the bill “stating that the notice has been published as provided by
this Code section and that the notice requirements of this Code section have been met” be attached
to the bill so it becomes part of the bill. This Court has said that if such an attachment is not made,
the law is invalid – but we have also said that the attachment to the enrolled bill is controlling on the
question of whether the required notice was provided. See Bleckley v. Vickers, 225 Ga. 593, 594
(170 SE2d 695) (1969) (“‘When the enrollment of any local or special bill has incorporated therein
the required proof of notice, and after it has been properly signed and filed with the Secretary of
State, it will also conclusively show upon its face its validity with respect to the constitutional
requirements as to proof of notice; whereas, if such enrollment fails to show the required proof of
notice, it is upon its face invalid.’” (citation omitted)). In this case, SB 532 had attached to it a copy
of the notice published on March 8, 2012 and an affidavit from Senator Fran Millar, who was a
sponsor of the bill, saying that notice of the bill “was published in the Champion which is the official
organ of DeKalb County on March 8, 2012, and that the notice requirements of Code Section 28-1-
14 have been met.” Although the affidavit says nothing specifically about notice to the City, under
our case law, the enrollment of the bill saying that the statutory “notice requirements” were met
might be deemed to “conclusively” establish that fact. See Bleckley, 225 Ga. at 594.

                                                    8
has an interest in ensuring compliance with all of the procedures required by

OCGA § 28-1-14. But a party only has standing to assert a procedural right “so

long as the procedures in question are designed to protect some threatened

concrete interest of his that is the ultimate basis of his standing.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 573 n.8 (122 SCt 2130, 119 LE2d 351)

(1992).9

       OCGA § 28-1-14 (a) is clearly designed to protect the interests of the

public that may be affected by the amendment of a local law, by requiring notice

to the local public of the introduction of such a bill. Oasis, as a business in the

area that stood to be affected by SB 532, would have standing to complain had

the notice required by subsection (a) not been given – but that notice was

properly given. OCGA § 28-1-14 (b) is clearly designed to protect a different

interest – the interest of a local government entity in notice of a potential

amendment to its organic law. Subsection (b) does not require that anything be

done with regard to the public, whose interest in notice is addressed by

subsection (a). See, e.g., GE Capital Mortgage Services, Inc. v. Clack, 271 Ga.


       9
          This Court has previously cited Lujan in assessing standing under Georgia law. See
Granite State Outdoor Advertising, Inc. v. City of Roswell, 283 Ga. 417, 418 (658 SE2d 587) (2008).

                                                9
82, 83 (515 SE2d 619) (1999) (holding that a party who was given notice of a

tax sale as statutorily required “may not attack the sale on the ground of lack of

notice to another party”); Ueal v. AAA Partners in Adoption, Inc., 269 Ga. App.

258, 260 (603 SE2d 672) (2004) (explaining that only the “person harmed by

the lack of notice to him” may raise the issue); Ryder Automobile Leasing Co.

v. Tates, 112 Ga. App. 18, 20 (143 SE2d 411) (1965) (“‘As a general rule, the

question of defective notice may be raised only by the one on whom attempted

service was made, and one defendant is not entitled to urge defects in the service

on a co-defendant[].’” (citation omitted)).

      Nevertheless, citing cases like Brown v. Clower, 225 Ga. 165, 166 (166

SE2d 363) (1969), Oasis argues that the purpose of the local legislation notice

statute is to protect the interests of the public. See id. at 166 (“[T]he purpose of

the advertisement as to local legislation . . . is to ‘protect the people against

covert or surprise legislation.” (citation omitted)). The cases Oasis cites,

however, were decided at a time when the only notice required was by

newspaper publication. See Ga. Const. of 1945, Art. III, Sec. VII, Par. XV

(requiring that notice of intention to introduce a local bill be published in the

newspaper in the affected area). This general notice requirement was meant to

                                        10
protect both the public and the affected local government. See Fleming v.

Daniell, 221 Ga. 43, 45 (142 SE2d 804) (1965) (explaining that one of the main

purposes of the constitutional notice requirement was “to prevent duties and

obligations being imposed on local governments without giving those in charge

of such governments an opportunity to oppose their passage.”). This continued

to be the law under the 1983 Constitution, with the notice requirement placed

in OCGA § 24-1-14.

      In 1996, however, the government notice requirement was separated from

the public notice requirement, with the addition to the statute of subsection (b).

See Ga. L. 1996, p. 1198. The title of the 1996 act explained that § 28-1-14 was

being amended “to provide that a notice of intention to introduce local

legislation be provided to the governing authority of any county, municipality,

or consolidated government affected by such legislation.” Id. And the language

of § 24-1-14 (b) makes plain that the purpose of this additional notice

requirement was not to provide a second way for people in general to learn

about potential local legislation but rather to directly notify the local government




                                        11
so that it could respond.10

       Thus, only the local government whose interest OCGA § 24-1-14 (b)

protects – here, the City of Doraville – has standing to contest compliance with

that notice requirement. Doraville has not complained about a lack of notice, or

indeed about the enactment of SB 532. And Oasis has no legal entitlement to

complain. Consequently, we need not, and do not, determine whether there was

adequate compliance with § 24-1-14 (b) when SB 532 was introduced and

passed into law.

       3.      Having established that Oasis is subject to the Doraville Code of

Ordinances, we turn next to the club’s constitutional challenges to the substance

of the sexually oriented business code. Oasis is correct that the SOB code

implicates constitutional freedom of expression. Erotic dancing – which

includes the type of dancing while nude done by Oasis’s employees – is a form

       10
            This understanding is supported by the original subsection (b) (3) of the 1996 statute,
which said that direct notice to the local government was not required when the local bill was
“requested by resolution or other written notification of the governing authority.” OCGA § 28-1-14
(b) (3) (1996). The governing authority’s making of such a request would not notify the public that
the local law requested was actually going to be introduced, but it obviously would demonstrate that
the governing authority was aware of the bill. This subsection was removed in 2002, when specific
notice procedures for annexation through local acts were repealed, see Ga. L. 2002, p. 985, § 1, §
3, but nothing in the repealing bill suggests that the purpose of the government notice requirement
in OCGA § 24-1-14 (b) changed or that it was now meant to provide a second way for the public to
be notified of impending local legislation.

                                                12
of expression protected by the free speech provisions of both the United States

and Georgia Constitutions. See, e.g., Gravely v. Bacon, 263 Ga. 203, 205 (429

SE2d 663) (1993); Harris v. Entertainment Systems, 259 Ga. 701, 702 (386

SE2d 140) (1989). See also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566

(111 SCt 2456, 115 LE2d 504) (1991) (plurality opinion) (“[N]ude dancing of

the kind sought to be performed here is expressive conduct within the outer

perimeters of the First Amendment, though we view it as only marginally

so.”).11 But free speech protection only goes so far; protected expression may

       11
            The First Amendment to the United States Constitution says “Congress shall make no law
. . . abridging the freedom of speech, or of the press . . . .” Article I, Section I, Paragraph V of the
1983 Georgia Constitution says, “No law shall be passed to curtail or restrain the freedom of speech
or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be
responsible for the abuse of that liberty.” Although Oasis raised both federal and state constitutional
claims in the trial court, on appeal it invokes only the free speech protection of the Georgia
Constitution.
          Doraville argues that the Georgia Constitution provides less free speech protection than the
First Amendment and that under a proper interpretation of our state constitution, nude dancing is not
protected at all. Discussing the text and history of the state provision, Doraville asserts that cases
such as Gravely and Harris, where this Court held that nude dancing is protected under the state
constitution, should be abandoned because they relied primarily on federal precedent. However,
“[a]s far back as 1932, this Court [has] looked to federal cases interpreting the First Amendment for
guidance in applying Georgia’s free speech guarantee.” Grady v. Unified Government of
Athens-Clarke County, 289 Ga. 726, 728 (715 SE2d 148) (2011). And in 1982, we said that “‘[i]n
the absence of controlling state precedent this court has applied analogous First Amendment
standards when construing the state constitution.’” Id. (quoting Paramount Pictures Corp. v. Busbee,
250 Ga. 252, 255 n.5 (297 SE2d 250) (1982)). Doraville’s argument – which Oasis heartily disputes
– is interesting, and its position was once endorsed by two members of this Court. See Harris, 259
Ga. at 705 (Weltner, J., joined by Marshall, C.J., dissenting) (“I cannot believe that our forebears,
in writing these protections, intended to vest in each Georgian a constitutional right to dance naked
for tips in a barroom. Nor do I think that the citizens of Georgia who ratified the Constitution of
1983 intended to preserve or to create any such ‘right.’”). But we see no need to reconsider our

                                                  13
sometimes be restricted in limited ways when justified by sufficient government

interests, without violating the Constitution. See State v. Café Erotica, 269 Ga.

486, 488-489 (500 SE2d 574) (1998); Harris, 259 Ga. at 701-702.

              (a)     In considering whether the SOB code restricts free expression

in a constitutionally permissible way, we first determine if the regulation is

content-neutral and thus subject to intermediate, rather than strict, judicial

scrutiny. See Café Erotica v. Peach County, 272 Ga. 47, 49 (526 SE2d 56)

(2000); State v. Café Erotica, 269 Ga. at 489 (explaining that regulations

targeting the content of protected speech are subject to strict scrutiny and thus

must be “‘necessary to serve a compelling state interest and . . . narrowly drawn

to achieve that end’” (citation omitted)).

       [T]he principal inquiry in determining whether a legislative act is
       content-neutral is “whether the government has adopted a
       regulation of speech because of disagreement with the message it
       conveys.      The government’s purpose is the controlling
       consideration. A regulation that serves purposes unrelated to the
       content of expression is deemed neutral, even if it has an incidental
       effect on some speakers or messages but not others.” An ordinance
       designed to combat the undesirable secondary effects of sexually
       explicit businesses is content-neutral. Before enacting an ordinance
       to combat undesirable secondary effects, a legislative body is

precedents on this point in this case, because as we explain below, even treating nude dancing as
protected speech, Doraville’s regulations are constitutional.

                                              14
      required to consider specific evidence of the undesirable secondary
      effects that it reasonably believes relevant to the problems it seeks
      to address by passing the ordinance.

Goldrush II v. City of Marietta, 267 Ga. 683, 690 (482 SE2d 347) (1997)

(citations omitted). “‘“[O]nly the clearest proof could suffice to establish the

unconstitutionality of a statute” on the ground that “a punitive purpose in fact

lay behind the statute,”’” and even statements by individual officials may not

prove a government’s purpose because “what motivates one legislator to make

a comment about a law is not necessarily what motivates fellow legislators to

enact the law.” Id. at 691-692 (citations omitted).

      Oasis contends that the trial court erred in holding that the SOB code is

content-neutral. The club argues that because the court granted Doraville

judgment on the pleadings, the court was required to take as true the allegations

in Oasis’s amended complaint stating that Doraville’s motive in passing the

SOB code was to target Oasis and that the reason for the regulations offered by

Doraville – targeting the negative secondary effects of sexually oriented

businesses – was pretextual.

      The preamble to Ordinance No. 2012-18, which enacted the SOB code,

recites the City Council’s findings that sexually oriented businesses “are

                                       15
frequently used for unlawful sexual activities, including prostitution and sexual

liaisons of a casual nature”; that “there is convincing evidence that sexually

oriented businesses, as a category of establishments, have deleterious secondary

effects and are often associated with crime and adverse effects on surrounding

properties”; and that the Council “desires to minimize and control these adverse

effects and thereby protect the health, safety, and welfare of the citizenry.” The

preamble specifies that Doraville’s intention is to regulate sexually oriented

businesses “through a narrowly tailored ordinance designed to serve the

substantial government interest in preventing the negative secondary effects of

sexually oriented businesses.”

      Ordinance No. 2012-22, which was passed a month later, amended the

SOB code to, among other things, “adopt[] and incorporate[] herein [the City

Council’s] stated findings and legislative record related to the adverse secondary

effects of sexually oriented businesses, including the judicial opinions and

reports related to such secondary effects, that were before the City Council with

Ordinance 2012-18.” The incorporated legislative record, which was also part

of the record before the trial court, includes a bevy of studies, reports, and cases

illuminating the dark underbelly of sexually oriented businesses and examining

                                        16
the negative secondary effects associated with those businesses. Doraville’s

stated reliance on these materials was sufficient evidence that the City’s purpose

in enacting the SOB code was to combat undesirable secondary effects. See

Goldrush II, 267 Ga. at 691-692 (concluding that the evidence offered by the

city, including the ordinance’s preamble and the transcript of the city council

meeting showing a discussion of negative secondary effects, established that the

“predominate intent” of the ordinance was to combat negative secondary

effects).

      Oasis did not allege in its pleadings any facts to refute Doraville’s stated

reliance on these materials in enacting the SOB code, and it has not alleged any

facts to show that Doraville adopted the ordinance to target a certain message.

Oasis did allege that it is the sole business affected by the SOB code. Even

taking this factual allegation as true, however, the trial court was not required

to take as true Oasis’s conclusion that because it is the only business affected at

this time, Doraville was targeting Oasis’s expression and Doraville’s stated

purpose of addressing negative secondary effects was pretextual. See Trop, Inc.

v. City of Brookhaven, 296 Ga. 85, 87 (764 SE2d 398) (2014) (“While a trial

court [ruling on a motion for judgment on the pleadings] is required to consider

                                        17
a non-moving party’s factual allegations to be true, it is not required to accept

the legal conclusions the non-party suggests that those facts dictate.”). Oasis

may be the only business currently affected by the SOB code, but that does not

establish that Doraville was targeting whatever message Oasis seeks to convey,

as opposed to the risks of negative secondary effects associated with sexually

oriented businesses in general. See Goldrush II, 267 Ga. at 691-692. We

therefore conclude that the trial court correctly found the SOB code to be

content-neutral. See Trop, 296 Ga. at 87 (holding that a similar sexually

oriented business regulation was content-neutral).

                (b)     Content-neutral regulations that have an incidental effect on

protected speech are reviewed under the three-part test established in Paramount

Pictures Corp. v. Busbee, 250 Ga. 252 (297 SE2d 250) (1982), which holds that

the regulation is constitutionally permissible if (1) it furthers an important

governmental interest; (2) it is unrelated to the suppression of speech; and (3)

its incidental restriction of speech is no greater than essential to further the

important governmental interest. See id. at 255-256.12

        12
           Inverting Doraville’s argument that the Georgia Constitution provides less free speech
protection than the First Amendment, see footnote 11 above, Oasis argues that the state constitution
provides more free speech protection than the federal constitution, and in particular that the third part

                                                  18
       Oasis first argues that the trial court erred in deciding at the pleadings

stage that the SOB code actually furthers an important government interest,

because the club must be permitted to present evidence challenging the studies

and other materials on which the Doraville City Council relied in concluding

that sexually oriented businesses cause negative secondary effects. For this

argument, Oasis relies mainly on City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (122 SCt 1728, 152 LE2d 670) (2002), in which the U.S. Supreme

Court said that a municipality cannot “get away with shoddy data or reasoning”

in crafting ordinances regulating sexually oriented businesses:



of the Paramount Pictures test should be replaced with the “least restrictive means” requirement
adopted in Statesboro Publishing Co. v. City of Sylvania, 271 Ga. 92, 95-96 (516 SE2d 296) (1999).
As we explained in Grady, however, this Court’s occasional statements suggesting that the 1983
Georgia Constitution “provides even broader protection” than the First Amendment, which
originated in State v. Miller, 260 Ga. 669, 671 (398 SE2d 547) (1990), have not been supported by
“any discussion of the text, history, or case law regarding the protection of free speech provided in
the 1983 or previous Georgia Constitutions.” Grady, 289 Ga. at 728-729. Grady also cast serious
doubt on the provenance and validity of Statesboro Publishing and its limited progeny, which are the
only cases in which the Miller dictum has become an actual holding. See Grady, 289 Ga. at 729-731.
But in any event, we have held that the Statesboro Publishing test applies only to laws that directly
regulate the time, place, and manner of protected expression (such as the ordinance in that case,
which prohibited the distribution of free printed material in driveways and yards), as opposed to
regulations that have only an incidental effect on protected speech. See Great American Dream, Inc.
v. DeKalb County, 290 Ga. 749, 751-752 & n.7 (727 SE2d 667) (2012). Neither the Doraville
Code’s prohibition of the sale and consumption of alcohol (which is not protected expression) nor
the prohibition of nudity (which is not itself protected expression) directly regulates protected
speech. The Code restricts the protected expression of erotic dancing only incidentally by regulating
the amount of clothing the dancers must wear and whether alcohol can be served in their vicinity.
Accordingly, we will apply the Paramount Pictures test.

                                                19
      The municipality’s evidence must fairly support the municipality’s
      rationale for its ordinance. If plaintiffs fail to cast direct doubt on
      this rationale, either by demonstrating that the municipality’s
      evidence does not support its rationale or by furnishing evidence
      that disputes the municipality’s factual findings, the municipality
      meets the standard set forth in Renton [v. Playtime Theatres, Inc.,
      475 U.S. 41 (106 SCt 925, 89 LE2d 29) (1986), to show that the
      ordinance is designed to serve a government interest]. If plaintiffs
      succeed in casting doubt on a municipality’s rationale in either
      manner, the burden shifts back to the municipality to supplement
      the record with evidence renewing support for a theory that justifies
      its ordinance.

Alameda Books, 535 U.S. at 438-439 (plurality opinion).

      Even as amended twice, however, Oasis’s complaint never alleged that the

extensive materials on which Doraville expressly relied do not support the

City’s rationale for the SOB code or were inaccurate. Thus, Oasis failed to cast

direct doubt on Doraville’s proffered evidence supporting its interest in

regulating sexually oriented businesses. See id. at 442 (upholding a zoning

ordinance restricting locations of sexually oriented businesses, and explaining

that “our cases require only that municipalities rely upon evidence that is

‘reasonably believed to be relevant’ to the secondary effects that they seek to

address” (citation omitted)); Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee

County, Florida, 630 F3d 1346, 1355-1360 (11th Cir. 2011) (granting summary


                                        20
judgment to the local government after finding that “the County has met its

initial burden and that Peek-a-Boo has failed to cast direct doubt” on the studies

the county relied on); Club Southern Burlesque, Inc. v. City of Carrollton, 265

Ga. 528, 531 (457 SE2d 816) (1995) (holding that the city’s “unrebutted

evidence” that it “relied on specific studies which it reasonably believed to be

relevant to the problems addressed by the ordinance” was sufficient to prove

that the ordinance was designed to further an important government interest).

      Oasis did allege that it has not caused any of the negative secondary

effects Doraville seeks to avoid. But this Court and the United States Supreme

Court have explained that it is not necessary for a local government to prove that

the negative secondary effects it reasonably fears, based on evidence of

problems experienced elsewhere, have already been experienced locally. See

Café Erotica v. Peach County, 272 Ga. at 49; Renton, 475 U.S. at 51-52. Put

another way, the Constitution does not require governments to forestall

reasonable regulation until the mess meant to be avoided is proved to have

arrived and now needs to be cleaned up. Indeed,

      “it was not incumbent upon the [City] to prove the efficacy of the
      studies. To the contrary, the [City] was only required to prove that
      it considered ‘specific evidence of the pernicious secondary effects

                                       21
      of adult entertainment establishments which it reasonably believed
      to be relevant to the problems addressed by the ordinance.’”

Parker v. Whitfield County, 265 Ga. 829, 829-830 (463 SE2d 116) (1995)

(citation and brackets omitted). Because Oasis’s pleadings did not challenge the

materials on which Doraville relied or assert that the City’s reliance on them was

unreasonable, the trial court was permitted to render a judgment on the

pleadings on this issue and to properly conclude that Doraville’s SOB code

furthers an important government interest.

            (c)   We next turn to applying the Paramount Pictures test to the

two specific parts of the SOB code challenged by Oasis – the provision

prohibiting sexually oriented businesses from serving alcohol, Code § 6-416 (d),

and the provision prohibiting employees at sexually oriented businesses from

appearing completely nude, Code § 6-416 (a).

                  (1)    This Court has repeatedly upheld bans on alcohol in

sexually oriented businesses against challenges under the Georgia Constitution.

See, e.g., Trop, 296 Ga. at 87; Goldrush II, 267 Ga. at 692-693; Gravely, 263

Ga. at 206-207. Regulations like Code § 6-416 (d) satisfy the first part of the

Paramount Pictures test because they further the important government interest


                                       22
in reducing negative secondary effects. It does not come as a shock that mixing

alcohol with sexually provocative activity can result in undesirable

consequences. This is borne out by many of the materials on which Doraville

relied, which show that negative effects result from the combination of alcohol

consumption and sexually oriented businesses.

      As for the second and third parts of the test, Code § 6-416 (d) is designed

to alleviate negative secondary effects, not to suppress expression, and the

incidental effect it has on the free expression of Oasis and its employees is

minimal. Serving alcohol is not itself protected expression, and Code § 6-416

(d) leaves Oasis’s employees free to express themselves as they wish through

dance or otherwise. Moreover, like the similar ordinance we recently upheld in

Trop, Doraville’s alcohol prohibition applies only to sexually oriented

businesses, and “mainstream performance houses, museums, or theaters” are not

affected. Trop, 296 Ga. at 88. See also Gravely, 263 Ga. at 206-207 (explaining

that the alcohol ban upheld there did not apply to private conduct or to

“establishments [that] have not been shown to contribute to increased crime and

neighborhood blight,” such as concert halls, museums, and educational

institutions). Compare Harris, 259 Ga. at 703-704 (striking down an ordinance

                                       23
that prohibited nudity at all establishments that served alcohol, including “at

museums, at the opera, or at mainstream performance and movie theaters”).

There remain ample opportunities and channels for dance and other free

expression in the City of Doraville.

                  (2)   Whether a free-standing prohibition on full nudity in

sexually oriented businesses meets the Paramount Pictures test is a closer

question – and one that this Court appears not to have squarely addressed

before. We conclude, however, that Doraville’s Code § 6-416 (a) passes the

Paramount Pictures test.

      First, the ordinance furthers the asserted important government interest.

Many of the materials considered by Doraville found a link between negative

secondary effects and the presence of sexually oriented businesses of all

varieties – not only strip clubs like Oasis but also businesses where alcohol is

not served like adult book and video stores and movie theaters. One study, for

example, showed that sexually oriented businesses attract predatory criminals

because these businesses draw customers from a wide area and the patrons are

“disproportionately male, open to vice overtures, [and] reluctant to report

victimizations to the police,” making them “soft targets.” And several of the

                                       24
studies specifically address negative secondary effects – including illegal sexual

activity – that proliferate in and around strip clubs. Because the intention of

Doraville Code § 6-416 (a) is to mitigate these negative effects, and not to

suppress speech, it passes the first two parts of the Paramount Pictures test.

      As for the third part of the test, it is true that dictating the type of costume

an individual must wear while dancing – or, as the case here, dictating that the

dancer wear at least some minimal kind of costume – imposes more of a

restriction on protected expression than prohibiting alcohol in the vicinity.

Code § 6-416 (a), however, strikes a constitutionally permissible fit between the

objective of reducing undesirable secondary effects and the need to protect free

speech.

      To begin with, like the alcohol prohibition, the SOB code’s proscription

of full nudity applies only to sexually oriented businesses as defined in the code

– not to private conduct; mainstream performance houses, museums, theaters,

and other artistic, entertainment, and educational venues not regularly featuring

live conduct characterized by semi-nudity or nudity; or the many other types of

businesses that do not qualify as sexually oriented businesses. See Trop, 296

Ga. at 88. And although the City’s regulation prohibits full nudity, it permits

                                         25
“semi-nudity,” which means that a female dancer may choose to wear only

pasties covering her areolae and a G-string covering her genital area and anus,

and a male dancer need only wear a G-string.

      Oasis argues that this level of regulation is not sufficiently linked with the

asserted government interest, and it is true that the materials on which Doraville

relied do not make explicit a link between full nudity, as opposed to almost full

nudity, and negative secondary effects. One study, for example, notes that

sexually oriented businesses that “provide on-site entertainment” increase the

opportunities for vice crime and customer-employee assaults, but that study does

not specifically address the degree of nudity as a factor leading to those negative

secondary effects. Similarly, the studies that focus specifically on strip clubs

include reports of nude dancers engaging in illegal acts like public masturbation

and prostitution, but do not evaluate whether such conduct would be mitigated

if the dancers had to wear pasties and G-strings.

      Although this Court has never directly addressed whether a full nudity

ban, distinct from a ban on alcohol along with nudity, violates the Georgia

Constitution, we can look to the relevant First Amendment precedent for

guidance, as we often have done before. See Harris, 259 Ga. at 702; Paramount

                                        26
Pictures, 250 Ga. at 255 n.5. In 1991, the United States Supreme Court held that

requiring employees at a sexually oriented business to wear at least pasties and

G-strings does not violate the First Amendment. See Barnes, 501 U.S. at 565-

566 (plurality opinion).

      The Court addressed the issue again, and reached the same conclusion, in

City of Erie v. Pap’s A.M., 529 U.S. 277 (120 SCt 1382, 146 LE2d 265) (2000).

The controlling plurality opinion found that the city’s “asserted interests of

regulating conduct through a public nudity ban and of combating the harmful

secondary effects associated with nude dancing are undeniably important.” 529

U.S. at 296. Moreover,

      [b]ecause the nude dancing at [issue] is of the same character as the
      adult entertainment at issue in Renton, Young v. American Mini
      Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976),
      [which both dealt with movie theaters,] and California v. LaRue,
      409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), [which dealt
      with live entertainment,] it was reasonable for [the city] to conclude
      that such nude dancing was likely to produce the same secondary
      effects.

City of Erie, 529 U.S. at 296-297 (plurality opinion). The Court then explained:

      To be sure, requiring dancers to wear pasties and G-strings may not
      greatly reduce these secondary effects, but O’Brien requires only



                                       27
        that the regulation further the interest in combating such effects.[13]
        Even though the dissent questions the wisdom of [the city’s] chosen
        remedy, the “‘city must be allowed a reasonable opportunity to
        experiment with solutions to admittedly serious problems.’” It also
        may be true that a pasties and G-string requirement would not be as
        effective as, for example, a requirement that the dancers be fully
        clothed, but the city must balance its efforts to address the problem
        with the requirement that the restriction be no greater than
        necessary to further the city’s interest.

City of Erie, 529 U.S. at 301 (plurality opinion) (citations omitted). In addition,

while a nudity ban may have “some minimal effect on the erotic message by

muting that portion of the expression that occurs when the last stitch is dropped,

the dancers . . . are free to perform wearing pasties and G-strings. Any effect on

the overall expression is de minimis.” Id. at 294. In sum, “[t]he requirement

that dancers wear pasties and G-strings is a minimal restriction in furtherance

of the asserted government interests, and the restriction leaves ample capacity

to convey the dancer’s erotic message.” Id. at 301.

        We agree with this reasoning. The pasties and G-string dress (or lack of

        13
             City of Erie (and Barnes) applied the three-part First Amendment test for reviewing
content-neutral regulations that was developed in United States v. O’Brien, 391 U.S. 367 (88 SCt
1673, 20 LE2d 672) (1968) – which is the test this Court adopted in Paramount Pictures for analysis
of this sort of free speech issue under the Georgia Constitution. See 250 Ga. at 256 (citing O’Brien,
391 U.S. at 377). Under O’Brien, government regulation of protected expression is constitutional
if it furthers an important government interest; if the interest is unrelated to the suppression of free
expression; and if the incidental restriction on First Amendment freedoms is no greater than is
essential to the furtherance of that interest. See 391 U.S. at 377.

                                                  28
dress) code required by § 6-614 (a) of the Doraville Code is a constitutionally

valid balance between the City’s desire to eliminate the negative secondary

effects of sexually oriented businesses and the need to protect free expression.

The Paramount Pictures test requires that an incidental restriction of protected

speech be no greater than essential to further the important government interest,

not no lesser. See 250 Ga. at 256. A local government may appropriately

choose to adopt a content-neutral regulation that furthers its important interest

in a slightly less restrictive way, thereby permitting more expression, even if that

also slightly reduces the beneficial effects of the policy – for example, by

allowing almost-nude but not fully-nude conduct in sexually oriented

businesses.14

       4.      In addition to challenging Doraville’s SOB code, Oasis seeks to

challenge Code § 3-31, the provision of the City’s alcohol code that prohibits

the sale of alcohol in establishments that feature nudity.15 The trial court

       14
            Oasis also raises a generalized claim that the SOB code is overbroad, but the only
argument made on this point is that the code is too broad in prohibiting nudity even where alcohol
is not served. As just explained, such a restriction on full nudity in sexually oriented businesses –
even teetotaling ones – is constitutional.
       15
            At the time Oasis applied for an alcohol license, Code § 3-31 prohibited nudity at any
establishment that served alcohol. The code has since been amended to add a exception for nude
“conduct in theaters, concert halls, art centers, museums, or similar establishments that are primarily

                                                 29
concluded that Oasis does not have standing to challenge any part of the alcohol

code because it does not have a Doraville alcohol license. That holding was too

broad. Oasis does not have a Doraville alcohol license because Doraville

actually applied to Oasis a provision of the City’s alcohol code. In denying

Oasis’s request for an alcohol license, Doraville noted several technical

problems with the application but explained clearly that the “singular” reason

for the denial was that Oasis qualified as a sexually oriented business and thus

was prohibited from serving alcohol under § 6-416 (d) of the SOB code.

       Accordingly, the application was denied under alcohol code § 3-21 (3),

which says that an alcohol license will not be issued when “the granting of such

license would constitute a violation of federal, state, or local law . . . .” Because

Oasis was denied a license under § 3-21 (3), the club would have standing to

challenge that provision as unconstitutional. See Bo Fancy Products, Inc. v.

Rabun County Bd. of Commrs., 267 Ga. 341, 344 (478 SE2d 373) (1996).

Compare Trop, 296 Ga. at 86 n.1 (explaining that the trial court was correct in

concluding that the Pink Pony did not have standing to challenge the



devoted to the arts or theatrical performances.”

                                                   30
Brookhaven alcohol code because the club had never applied for an alcohol

license). To the extent Oasis raises such a challenge to § 3-21 (3), however, that

claim lacks merit. As discussed in Division 3 above, § 6-416 (d) of the SOB

code is constitutionally valid in prohibiting alcohol in sexually oriented

businesses, and § 3-21 (3) serves only to make the alcohol code consistent with

the SOB code in this respect.

      But the trial court was correct to the extent it held that Oasis lacks

standing to challenge § 3-31 of the alcohol code. The first sentence of § 3-31

says: “It is the purpose of this section to regulate establishments licensed to sell,

serve, or dispense alcoholic beverages . . . .” If Oasis possessed an alcohol

license, it might be subject to penalties under § 3-31 for selling alcohol. But

Oasis does not have an alcohol license, and its application for a license was not

– and could not have been – denied based on § 3-31, which regulates only

establishments that have already been “licensed to sell, serve, or dispense

alcoholic beverages.” Indeed, the City’s letter denying the club’s license

application never mentions § 3-31. Consequently, Oasis lacks standing to

challenge Code § 3-31. See Granite State Outdoor Advertising, Inc. v. City of

Roswell, 283 Ga. 417, 421 (658 SE2d 587) (2008) (explaining that Georgia law

                                         31
does not “permit a party denied a permit based on the noncompliance with a

constitutionally permissible provision to attack other provisions by which it was

not injured in any manner whatsoever” (footnote omitted)).

      5.    Oasis raises three other constitutional challenges to Doraville’s

Code, which may be quickly rebuffed. Oasis first argues that it has a vested and

thus constitutionally protected interest in providing alcohol and nudity as it

always has, so it is entitled to grandfathered status and should be permitted to

operate without regard to the SOB and alcohol codes. As this Court has

explained, however, while vested rights may, under certain circumstances,

preclude “retroactive application of a zoning ordinance, the same is not

applicable to licenses to conduct a business.” Goldrush II, 267 Ga. at 698

(emphasis in original; citation omitted).

      Those who hold licenses that expire annually act at their peril and
      assume the risk that their licenses might not be renewed
      notwithstanding they have “committed their lives and their capital
      to building their businesses” which need licenses to operate.

Id. (citation omitted). See also Trop, 296 Ga. at 88 (rejecting “Pink Pony’s

erroneous arguments that it had some vested right to continue operation as a

nude dancing club that serves alcohol” based on the club’s prior agreement with


                                       32
DeKalb County).

      Oasis next challenges Doraville’s zoning ordinance on the grounds that

the City Council did not follow the City’s requirements for passing an ordinance

and that the zoning scheme does not leave sufficient locations available for

sexually oriented businesses. On December 31, 2012, the day the expansion of

Doraville’s city limits became effective, the City Council enacted a zoning

ordinance covering its new territory. The land on which Oasis sits was included

in zoning category C-1 (neighborhood commercial), the same designation the

land had under DeKalb County’s zoning scheme. Although Doraville’s zoning

code restricts sexually oriented businesses to areas zoned M-2 (heavy

manufacturing), the City’s attorney has consistently represented in this litigation

that Oasis is not required to move, and there is no allegation that the City has

sought to apply its zoning code to affect Oasis. Thus, Oasis has not been injured

by Doraville’s zoning code and does not have standing at this time to challenge

it. See Granite State, 283 Ga. at 420-421. See also Manlove v. Unified Govt.

of Athens-Clarke County, 285 Ga. 637, 638 (680 SE2d 405) (2009) (finding no

standing where the plaintiffs failed to show that the challenged ordinance had

been enforced against them or that there was an imminent threat of

                                        33
enforcement).16

       Finally, Oasis contends broadly that many of the other provisions of the

SOB and alcohol codes are unconstitutional as applied to the club. Oasis

maintains that with regard to its as-applied challenges, judgment on the

pleadings was necessarily improper because a trial court cannot rule on such

challenges unless and until a factual record has been developed. However, the

cases Oasis cites for this proposition actually say only that to present a

justiciable claim, an as-applied challenge requires factual allegations showing

how the challenged law actually has been (or is credibly threatened to be)

applied to the plaintiff. See, e.g., GeorgiaCarry.Org, Inc. v. Georgia, 687 F3d

1244, 1255 n.20, 1261 n.34 (11th Cir. 2012). Oasis failed to allege any facts

supporting an as-applied challenge to these other provisions of the Doraville

Code, so the trial court’s judgment on the pleadings rejecting those claims was

proper.

       Judgment affirmed. All the Justices concur.




       16
         Because Doraville has not tried to apply its zoning code to Oasis, we also need not decide
whether Oasis would be entitled to grandfathered status under the zoning code.

                                               34
