Curves, LLC v. Spalding County, Ga.

Citations: 569 F. Supp. 2d 1305; 2007 U.S. Dist. LEXIS 97140; 2007 WL 5268363Docket: 1:07-cv-00010

Court: District Court, N.D. Georgia; April 6, 2007; Federal District Court

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CURVES, LLC, operating as Curves Bar & Grill, filed a motion for a preliminary injunction against Spalding County, Georgia, seeking to prevent the enforcement of local ordinances prohibiting nude dance entertainment at its establishment. The case is presided over by District Judge Jack T. Camp in the United States District Court for the Northern District of Georgia. The court recognizes that the Spalding County Commission holds the authority to regulate entertainment but emphasizes its responsibility to review such regulations to ensure they do not infringe upon constitutional rights, specifically the First Amendment right to expressive conduct.

Curves Bar & Grill, which opened in 2006, primarily serves food and alcohol while providing live dance entertainment. The plaintiff intends to expand its offerings to include "erotic dance performances" in a minimal clothing format. Although law enforcement conducted a search warrant at the establishment for suspected violations of licensing related to adult entertainment, no evidence was found. However, there have been arrests related to public indecency on the premises.

The plaintiff contends that fears of potential legal action against its management and employees, as well as threats to its alcoholic beverage license, prompted this lawsuit. The plaintiff argues that certain sections of the Spalding County Code violate due process and First Amendment rights. The relevant code defines adult entertainment establishments and outlines a series of conditions that must be fulfilled to obtain a license for such operations, including payment of fees, compliance with legal standards, and absence of felony convictions among applicants. 

The court, after hearing the arguments, ruled in favor of the plaintiff's request for a preliminary injunction, allowing Curves Bar & Grill to continue its operations while the case is adjudicated.

The document outlines the criteria and regulations governing the issuance of licenses and permits for adult entertainment establishments. Key requirements include:

1. Compliance with all applicable laws, including health, zoning, fire, safety, and alcohol regulations if the license is granted.
2. Applicants must be at least 21 years old.
3. Applicants or their representatives must not have allowed prohibited sexual activities on their premises within the past five years.
4. A responsible manager must be present on-site during business operations.
5. The proposed location must not be in close proximity to churches, schools, libraries, governmental buildings, or other regulated businesses, as defined by local laws.
6. Granting the license must not violate any local, state, or federal laws.
7. Applicants must fully comply with all regulations set forth in the article.
8. There must be no circumstances that endanger public health, safety, or welfare or degrade county property.

The county will decide on the application within 30 days, with the option for applicants to appeal any denial to the Spalding County Manager, who will schedule the appeal for a board meeting. The board may appoint a hearing officer for the appeal, with no time limit on their decision-making process.

Additionally, the Alcohol Code prohibits various sexual acts and the display of nudity in licensed premises. Licensees cannot allow any activities that simulate or constitute sexual acts or the display of certain body parts. They are also prohibited from hiring entertainers who engage in or simulate prohibited activities or who are not fully clothed.

Licensees are prohibited from allowing nudity or semi-nudity on their premises, as well as any activities with sexual connotations, such as wet t-shirt contests. A district court can issue a preliminary injunction if the movant demonstrates: (1) a substantial likelihood of success on the merits, (2) irreparable injury will occur without the injunction, (3) the threatened injury to the movant outweighs any harm to the opposing party, and (4) the injunction would not adversely affect the public interest. A preliminary injunction is considered an extraordinary remedy, and the burden is on the movant to satisfy all four criteria.

The First Amendment protects free speech, including symbolic or expressive conduct like nude dancing, though it is only marginally protected. While states can regulate conduct for public health, safety, and morals, including prohibiting nude dancing where alcohol is served, such regulations must further a substantial government interest with only incidental limitations on expression. Licensing ordinances must adhere to procedural requirements; any ordinance that grants discretionary power to officials for permitting freedoms is seen as unconstitutional prior restraint. Additionally, licensing procedures must limit the time frame within which decisions are made to avoid delays, as they can violate constitutional protections.

Procedural requirements, rather than authority, are central to the legal challenges faced by local governments concerning community regulations. In this case, the Plaintiff does not dispute the Defendant's authority to regulate nude dancing or alcohol but argues that the Adult Code imposes an unconstitutional 'prior restraint' on expression by lacking prompt decision-making and allowing excessive discretion. The Plaintiff also claims that the Alcohol Code lacks evidence of adverse secondary effects justifying its regulations. Consequently, the Court will assess both the Adult Code and Alcohol Code for constitutional compliance.

Regarding the Adult Code, it must ensure prompt decision-making through two safeguards: licensing officials must decide quickly, and there must be swift judicial review to address incorrect denials. The ordinance must set a specific timeframe for permitting decisions, and failure to act must have defined consequences. The Adult Code fails to meet these requirements; although it mandates a decision within thirty days, it does not impose a timeline for the Board of Commissioners to conduct hearings or decide on appeals. This lack of specificity mirrors issues found in prior cases, leading to potential delays in judicial review. The Eleventh Circuit has suggested that relying on state law for judicial review does not satisfy procedural requirements if the ordinance lacks explicit provisions.

The Court concludes that the Plaintiff has a strong likelihood of success in arguing that the Adult Code creates opportunities for delay. Furthermore, ordinances must provide clear criteria for public officials when deciding on expressive activities; excessive discretion renders an ordinance invalid.

Statutes cannot grant public officials unlimited discretion to deny permission for constitutionally protected expression, with any discretion beyond minimal levels being questionable. The Eleventh Circuit ruled against enforcing vague zoning regulations regarding adult businesses, emphasizing the need for precise and objective standards. In *Lady J.*, provisions that lacked specific criteria were deemed unconstitutional, while in *Fly Fish*, an ordinance allowing city officials to determine violations of laws for license denial was similarly invalidated for granting excessive discretion. The Court highlighted specific subsections of the Adult Code that mirrored these problematic provisions, indicating a substantial likelihood of success for the Plaintiff's challenge on the grounds of improper discretion.

Regarding the Alcohol Code, although the Plaintiff argued for strict scrutiny, the Eleventh Circuit has classified restrictions on alcohol sales at adult venues as content-neutral, subject to the O'Brien test. This test determines the constitutionality of regulations based on whether the government interest is legitimate, if the regulation furthers that interest, whether the interest is unrelated to free expression, and if there is no less restrictive alternative. The Alcohol Code meets the first and third criteria, as it addresses secondary effects without suppressing free expression. However, for the second criterion, the government must provide reasonable justification for restrictions impacting protected expression, supported by factual evidence linking adult entertainment with increased criminal activity and adverse community conditions.

The city is not required to conduct new studies or provide independent evidence to support its claims regarding secondary effects, as long as it uses evidence deemed relevant to the issues at hand. The defendant acknowledges that the Alcohol Code lacks a stated purpose, and while it claims intent can be inferred from common sense and the Adult Code, this is insufficient to meet the evidentiary requirements of the O'Brien test. Government officials can utilize experiences from other cities, external studies, and case law, but must substantiate their conclusions with supporting evidence. The court emphasizes that the absence of a legislative record weakens the defendant's position, contrasting it with a Supreme Court case where historical context supported the government's interests. The court finds the plaintiff likely to succeed in their challenge due to this lack of evidence. It also recognizes that any loss of First Amendment freedoms results in irreparable injury, outweighing potential harm, and that public interest is served by upholding these freedoms. Consequently, the plaintiff is granted a preliminary injunction. The court encourages the parties to collaboratively propose an injunction by April 30, 2007, but if they cannot agree, the plaintiff must submit a proposal by that date, with the defendant's objections due by May 7, 2007. The court will then decide on the judgment or schedule a hearing.